UK Social Security and Child Support Commissioners' Decisions

 


CA/2642/2001

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I dismiss the claimant's appeal against the decision of the Wakefield appeal tribunal dated 6 April 2001.

REASONS

2. At the claimant's request an oral hearing of this appeal was directed. However, the claimant neither attended nor was represented. The Secretary of State was represented by Mr S. Papadopoulos of the Office of the Solicitor to the Department of Health and the Department for Work and Pensions.
3. The claimant made a claim for attendance allowance on 19 October 2000. In the light of the claim form and a brief report from the claimant's general practitioner, the Secretary of State decided on 9 November 2000 that the claimant was not entitled to attendance allowance. The claimant asked for the decision to be reconsidered. He was visited by an examining medical practitioner but the decision was not revised and so he appealed. His appeal was dismissed by the Wakefield appeal tribunal on 6 April 2001. The claimant applied to the tribunal chairman for leave to appeal on a number of grounds, which seem to me all to raise only questions of fact. An appeal to a Commissioner lies only on a point of law. On renewing his application to a Commissioner, the claimant added a ground that alleged that the system for adjudicating on claims for social security benefits contravened the European Convention on Human Rights. It was on that ground that he was granted leave to appeal. Consideration of the appeal was deferred pending a possible appeal against the decision in CI/4421/00. However, that appeal was not pursued and the stay in the present case was lifted, the Commissioner raising the question "whether, in the light of CA/140/85, the tribunal were correct in holding that the EMP's assessment of the claimant's needs (which had found that the claimant needed help getting in and out of bed, with dressing and undressing, with washing and shaving, with stairs and with cutting up food) did not amount to 'frequent attention throughout the day in connection with his [the claimant's] bodily functions'".
4. The argument based on the European Convention on Human Rights has not been developed and I do not consider that I need consider it I detail. The basic framework governing decision-making and appeals is laid down in primary legislation (the Social Security Act 1998). Even if tribunals are not as independent of the Secretary of State for Work and Pensions as they might be, and even if it can be said that it is not a sufficient safeguard that there is an appeal on a point of law to a Commissioner who is independent, I have no power to ignore primary legislation or to declare primary legislation incompatible with the Convention. Accordingly, as no allegation of bias specific to the tribunal who heard this claimant's case has been raised, I do not consider that I should consider this issue any further.
5. The claimant asked that the tribunal deal with his case on the papers. The tribunal considered that there was little difference between the examining medical practitioner's assessment of the claimant's needs and his own. The question was whether the needs were sufficient to entitle the claimant to attendance allowance. The Secretary of State's written submission to me is inconsistent. In paragraph 6 it is said that the tribunal gave adequate reasons for their decision. In paragraph 10, it is said that the tribunal failed to explain how they considered that the claimant could negotiate the stairs during the day in order to go to the toilet or how he could unfasten his buttons without attention from another person. Mr Papadopoulos also suggested that the evidence showed that the claimant would need attention during the day in order to change or put on shoes. However, when I asked whether it followed from the submissions that the Secretary of State would concede that the claimant did require attention throughout the day and so should be awarded the lower rate of attendance allowance, he submitted that the case should be referred to another tribunal because the Secretary of State would still argue that the claimant was not entitled to attendance allowance. He argued that the case was sufficiently finely balanced to make it inappropriate for me to give my own decision that the claimant was not so entitled.
6. I find it difficult to see why I should be regarded as less able to give a decision in this sort of case than a tribunal who has also considered the case on the papers. This is not a case where medical expertise is required and there seems no good reason for me to refer this case for an oral hearing before a tribunal when the claimant did not ask for such a hearing before the last tribunal and has not attended the hearing before me.
7. Furthermore, while it is right that the Secretary of State should draw attention to matters that a tribunal may have overlooked, he should not be too quick to argue that a tribunal has erred in law in failing to deal with a point that was not raised in argument before the tribunal and that the Secretary of State says would have made no difference to the tribunal's decision. Tribunals are not required to comment on every argument that could have been raised but has not and should not always be assumed to have overlooked potential issues merely because they have not been mentioned in the statement of reasons.
8. The point about the stairs would have been a good one if the decision under appeal to the tribunal had not answered it.

"He has difficulties on the stairs but could use a urine bottle to avoid frequent use of stairs during the day."

That decision was in the bundle of papers sent to the claimant before the hearing (doc 61). The claimant did not challenge that reasoning. Indeed, he told the tribunal in a letter dated 28 March 2001 that he had obtained a commode and urine bottle "for emergency". In those circumstances, while it might have been better if the tribunal had expressly adopted the Secretary of State's reasoning, I do not think that the tribunal can be said to have erred in law in not mentioning a point that they could reasonably have felt was not in issue before them.

9. As to the need to deal with buttons when going to the toilet, the evidence was that he could "cope alone at toilet" and the only help the claimant suggested he needed with going to the toilet was in using the stairs. The explanation may be that his trousers had a zip and that he could manipulate that with at least his left hand, which was the less severely impaired of the two. Whatever the explanation, the claimant had never actually raised an inability to undo his trousers or do them up again as an issue and it cannot be assumed that because he needed help with buttons when dressing in the morning and undressing at night that he could not manage his clothing when using the toilet or a urine bottle. I do not consider the tribunal erred in not mentioning this issue, which, I might add, the Secretary of State equally had not mentioned specifically.
10. As to the implied need for attention if he wished to get changed or put on a coat to go out, I have no doubt that the claimant would have needed such attention just as he plainly needed attention in cutting up some food. The tribunal accepted all that. They, like the Secretary of State, concluded that the needs did not arise frequently throughout the day. They were entitled to that view. I see no reason to differ from it. I accept that the case may have been finely balanced and had it been argued before the tribunal with greater precision and further evidence it is even possible that a different decision would have been reached. However, the tribunal had the information gathered by the Secretary of State and the extra information provided by the claimant in the documents but they did not have any oral evidence or the opportunity to ask the claimant to expand any further. I do not consider it to be arguable that the tribunal's decision is erroneous in point of law. It seems to me that the Secretary of State's submission implies not only that the tribunal's decision was inadequate but also that the case was inadequately investigated by the Secretary of State and that the Secretary of State's decision was inadequately explained. I do not consider that was so in this case.
11. I am not surprised reference was made to CA/140/85 by the Commissioner when he directed further submissions in this case because there are similarities in the findings of the visiting doctors in the two cases. However, the claimant in that case was blind and there was evidence that he had considerable difficulty if he lost his orientation and so it seems to me that the claimant's needs for attention in that case were likely to arise more often than in the present case. In particular, he may have needed assistance every meal-time whereas in the present case the claimant requires assistance only with cutting up food so that the need presumably arises only on some occasions. Moreover, with due respect to the Chief Commissioner who decided that case, he does seem to have focused on the words "throughout the day" rather than the whole phrase "frequent attention throughout the day" and, in my view, the fact that attention is given on a number of occasions throughout the day does not necessarily make the attention frequent.
12. Accordingly, I am not satisfied that the tribunal's decision was erroneous in point of law in the present case and even if it was – because the reasoning was inadequate – I would substitute my own decision to the same effect as the tribunal's on the written evidence before me.
13. I have not overlooked the fact that the claimant has said that his condition has deteriorated since he was visited by the examining medical practitioner. However, in the light of section 12(8)(b) of the Social Security Act 1998, the tribunal were not entitled to have any regard to a change of circumstances after 9 November 2000 when the Secretary of State made the decision under appeal and neither am I. If the claimant considers that he now does satisfy the conditions of entitlement for attendance allowance, he may make a fresh claim.

(signed) MARK ROWLAND

Commissioner

13 December 2002