UK Social Security and Child Support Commissioners' Decisions

[2000] UKSSCSC CDLA_5552_1999 (09 January 2000)

 


DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. The claimant's appeal is allowed. The decision of the Hull disability appeal tribunal dated 22 April 1999 is erroneous in point of law, for the reason given below, and I set it aside. It is expedient for me to substitute the decision which the appeal tribunal should have given (Social Security Act 1998, section 14(8)(a)(i)). My decision is that there are no reasonable grounds for believing that the claimant's entitlement to the higher rate of the mobility component of disability living allowance from and including 9 October 1995 for life, or the rate of that component or the period of the award, ought not to continue (Social Security Administration Act 1992, section 33(6)). Accordingly, the adjudication officer's decision making that award does not fall to be reviewed in respect of the mobility component. The decision of the disability appeal tribunal dated 3 February 1999 in relation to the care component remains operative, as explained in paragraph 15 below.
2. The claimant claimed disability living allowance ("DLA") on 9 October 1995. The claim was initially disallowed following the provision of a report by an examining medical practitioner ("EMP") on 15 November 1995. However, on second-tier review following a single page letter from the claimant, the adjudication officer awarded her the middle rate of the care component and the higher rate of the mobility component from and including 9 October 1995.
3. In December 1997 the claimant was sent a questionnaire asking for information about help with personal care and with getting around, which she completed and signed on 15 December 1997. A short questionnaire was also sent to her GP, which was completed and signed on 16 March 1998. On 2 April 1998 the Secretary of State applied to the adjudication officer for a review of the decision awarding DLA because medical evidence suggested that the claimant had fewer care needs. The adjudication officer on 2 April 1998 reviewed the decision on the ground of relevant change of circumstances and gave the revised decision that the claimant was not entitled to the care component from and including 16 March 1998. It was recorded that entitlement to and the rate of mobility component had not been considered. The decision of 2 April 1998 was maintained on second-tier review on 27 August 1998. The claimant appealed to the disability appeal tribunal ("DAT").
4. The first hearing took place on 12 November 1998, when the DAT adjourned for a report to be obtained from an EMP. The medical report request in the Independent Tribunal Service file shows that a report on both care and mobility components was requested. The EMP's report, dated 9 December 1998, indicated that help was needed only with using a cooker and with taking a bath or shower. The opinion was expressed that she could walk 100 metres before the onset of severe discomfort and that it would take her 10 minutes to walk that distance. She was recorded as having said she could walk to a centre 250 metres away, which would take 25 minutes. When the case came before a DAT again on 3 February 1999, there was another adjournment. The view was expressed that there were reasonable grounds for believing that the existing award of the higher rate of the mobility component ought not to continue, on the basis of the EMP's report and the claimant's evidence to the DAT on 3 February 1999. The adjournment was to give the claimant, who was not represented at the hearing, the opportunity to consider that issue. But the DAT did make an award of the lowest rate of the care component from 16 March 1998 to 15 March 2000 (on the main meal criterion), having found that the evidence did not support a need for attention or supervision sufficient to qualify for the middle rate of the care component.
5. The DAT of 3 February 1999 directed that the chairman on that occasion should also be the chairman at the next hearing. That took place on 22 April 1999. In fact, both the chairman and the medical member were the same as on 3 February 1999, but the other member was different. The claimant was present and represented by someone from the Disability Rights Advisory Service. The claimant gave detailed evidence about her walking.
6. The decision of the DAT of 22 April 1999 was that the claimant's award of the higher rate of the mobility component was to be revised and that she was not entitled to the mobility component. No date was expressly stated for the revision to take effect. On the view that I take of the case as a whole I need not go into the DAT's detailed reasoning. In brief, it took the view that, since it found that the claimant could walk at least 50 metres out of doors before having to stop by reason of severe discomfort, the claimant was not virtually unable to walk.
7. The claimant now appeals against that decision with the leave of a Commissioner. The ground put forward on her behalf by the Disability Rights Advisory Service was that under section 33(6) of the Social Security Administration Act 1992 the mobility component should not have been considered at all by the DAT of 22 April 1999, or by earlier DATs. The appeal was supported on that ground in the submission dated 22 February 2000 on behalf of the Secretary of State. It was suggested there that the DAT's decision should be set aside under section 14(7) of the Social Security Act 1998, and the case referred for rehearing. I rejected that suggestion and directed a further submission dealing with the complexities of the case, including the Court of Appeal's decision in Ashraf v Secretary of State for Social Security (2 December 1999). I am afraid that that, and a further direction over whether I could substitute a decision in the case, has led to some delay. In the event, I can deal with the appeal relatively shortly.
8. The crucial provision is section 33(6) of the Social Security Administration Act 1992, which was in force until 18 October 1999:

"(6) The tribunal shall not consider--

(a) a person's entitlement to a component which has been awarded for life; or

(b) the rate of a component so awarded; or

(c) the period for which a component has been so awarded,

unless--

(i) the appeal expressly raises that question; or

(ii) information is available to the tribunal which gives it reasonable grounds for believing that entitlement to the component, or entitlement to it at the rate awarded or for that period, ought not to continue."

9. In the present case, the claimant's appeal against the adjudication officer's decision of 27 August 1998 plainly did not raise the question of her entitlement to the mobility component. Therefore, the DAT of 22 April 1999 was prohibited from considering the mobility component unless the condition in section 33(6)(ii) was met. In the submissions dated 11 April 2000 and 25 September 2000 it was submitted on behalf of the Secretary of State that, in relation to that DAT, the condition was met. It was said in paragraph 3.2 of the first submission that:

"it is accepted that the information regarding mobility once obtained, albeit improperly, is nonetheless admissible before following adjudicating authorities on general principle in the law of evidence (CDLA/15976/96)."

In the second submission it was said that although the DAT of 12 November 1998 appeared only to be considering the care component, once an EMP report dealing with both care and mobility had been obtained, the following DATs were entitled to consider the evidence regarding mobility. Commissioner's decision CDLA/15976/1996 was again relied on, in particular paragraph 33. I reject those submissions.

10. CDLA/15976/1996 was a case in which the Commissioner found that an adjudication officer had obtained a doctor's report on both components when there was no prior information giving reasonable grounds for believing that entitlement to mobility component for life should not continue. That was in breach of section 32(4) of the Social Security Administration Act 1992. Mr Commissioner Jacobs held that, although the adjudication officer was not entitled to rely on the report in order to consider and review the mobility component, on appeal the DAT could rely on the report as part of the information to be looked at under section 33(6). I do not need to decide whether that was right in the circumstances of CDLA/15976/1996 (and there are other Commissioners' decisions casting doubt on that), because the circumstances of the present case are significantly different. Here, the information in question was obtained on the instructions of the DAT of 12 November 1998 and during the hearing on 3 February 1999. It is not a case of a "following adjudicating authority" relying on the information. After the adjournment by the DAT of 12 November 1998, the DATs of 3 February 1999 and 22 April 1999 were not "following adjudicating authorities", but the same adjudicating authority dealing with the same appeal. In such circumstances, the mandatory terms of section 33(6) apply and the circumstances must be examined closely.
11. In my judgment, Mr Commissioner Jacobs' reference in paragraph 33.3 of CDLA/15976/1996 to a general principle of the law of evidence that improperly obtained evidence is nonetheless admissible was made only in support of his narrower holding. It is clear from a reading of the whole of paragraph 33 that he was not intending to say how that principle might or might not apply outside that particular context, and that he envisaged a possibly different approach where the gathering of the relevant evidence was initiated by a DAT. I have no doubt that section 33(6) does then require a different approach. A similar view was taken recently by Mr Commissioner Powell in CDLA/923/1999, where he held that a subsequent DAT was not entitled to rely on an EMP's report obtained by a earlier DAT in breach of section 33(6). Further, in paragraphs 17 and 20 of CDLA/5793/1997 Mr Commissioner Rowland had already expressed the same principles. In paragraph 17 he said:

"A tribunal are not required to close their eyes and ears to unsolicited information but it is implicit in section 33(6) that a tribunal may not themselves ask questions for the purpose of obtaining information which might give them reasonable grounds for believing [that] entitlement to the component that has been awarded for life ought not to continue."

In paragraph 20 he went on to say:

"If the tribunal were not entitled to ask questions relating to the mobility component themselves, they were not entitled to cause the questions to be asked by a doctor on their behalf."

I agree with and follow that legal approach.

12. The position at the time of the first hearing before the DAT of 12 November 1998 must therefore be examined. The issue of the questionnaire to the claimant by the Secretary of State in December 1997 was perfectly proper. In her replies on help with getting around, the claimant referred to being in pain all the time and said that she had to stop after four yards, but also said that she had no alternative to going out on her own every day to the shops, as she could only carry small amounts. That in itself did not, in my judgment, give reasonable grounds for believing that the life award of the mobility component should not continue. That is so especially when taking account of the ruling in Ashraf that in cases like the present the relevant belief must relate to whether a ground of review of the existing award under section 30(2) exists and the terms of the claimant's letter of 12 December 1995 on which her award of mobility component was apparently based. The obtaining by the Secretary of State of a report from the claimant's GP was also perfectly proper. The GP's replies were terse. He ticked the box for 50 - 100 metres in answer to the question about the claimant's usual walking ability before the onset of severe discomfort, and stated "Limping now and then. Slow speed" in reply to the question about abnormalities of gait or speed of walking. In my judgment, those replies might reasonably lead to some suspicion about the award of mobility component, but not to a belief that the award ought not to continue. It is significant that the Secretary of State only applied for a review in relation to the care component, and that the review at both levels was limited in that way.
13. I therefore conclude that the DAT of 12 November 1998 was prohibited by virtue of section 33(6) from considering the mobility component. There is nothing in the record of proceedings or in the decision notice to suggest that the mobility component was mentioned at the hearing. However, the EMP was requested to report on mobility. That was a request which the DAT and its chairman were not entitled to make. The EMP's report in relation to mobility could not be used by the DAT of 3 February 1999 to establish reasonable grounds under section 33(6). Nor was the DAT entitled to question the claimant about mobility and use her replies to establish reasonable grounds. The same applies to the DAT of 22 April 1999. The giving of the warning about the effect of section 33(6) does not alter the legal position at all, because it was based on a misapplication of the provision.
14. The result is that the DAT of 22 April 1999 was prohibited from considering the possible review and revision of the claimant's existing award of the mobility component for life. Accordingly, there was an error of law in carrying out such a review and revision and the DAT's decision must be set aside for that reason. I can also add that, if I had needed to look at the DAT's substantive decision on the conditions of entitlement to the mobility component, I would have found an error of law there. As mentioned in paragraph 6 above, the DAT appeared to take the approach that severe discomfort became relevant only when it caused the claimant to stop walking. That is a wrong approach in law. The DAT failed to give proper consideration to the argument that some of the claimant's actual walking was achieved while suffering severe discomfort and was so to be disregarded.
15. The next question is whether I should substitute a decision or refer the case to a new appeal tribunal for rehearing. In the end, the Secretary of State's representative argued for the second alternative, while the claimant's representative has consistently favoured the first. It is significant that the claimant's representative has never challenged the decision of the DAT of 3 February 1999 in relation to the care component and has not mentioned in the present appeal any dissatisfaction with anything except the removal of the mobility component. In those circumstances, I see no need to regard the whole case as involving both components and to refer that whole case to a new appeal tribunal. I can deal with the mobility component by substituting the decision which should have been given by the DAT of 22 April 1999, ie that it was prohibited from considering the existing life award of the mobility component. The result is that the DAT of 3 February 1999 in fact dealt with the claimant's appeal against the adjudication officer's decision of 27 August 1998 as fully as it was legally able to. It should not have adjourned on the mobility component. Therefore, the position is that the decision of the DAT of 3 February 1999 stands as the decision on that appeal.
16. Although the award to the claimant of the mobility component for life remains in existence, unreviewed and unrevised, as at 27 August 1998, it remains open to the Secretary of State to exercise his powers of revision or supersession under the Social Security Act 1998.

(Signed) J Mesher

Commissioner

Date: 9 January 2001