UK Social Security and Child Support Commissioners' Decisions

 
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is as follows. It is given under section 14(8)(b) of the Social Security Act 1998.
2. 1. The decision of the Newcastle appeal tribunal under reference U/44/228/2000/03802, held on 18^th October 2000, is erroneous in point of law.
3. 2. I set it aside and remit the case to a differently constituted appeal tribunal.
4. 3. I direct that appeal tribunal to conduct a complete rehearing of the issues that arise for decision. In particular:

The appeal tribunal must determine the claimant's entitlement to a disability living allowance on her application for supersession made in her letter dated 29^th November 1999 (page 88).

The tribunal must follow the analysis of the supersession procedure laid down by the Tribunal of Commissioners in R(I) 5/02 and R(DLA) 6/02. The effective date of the decision given on the supersession must be fixed in accordance with section 10(5) of the Social Security Act 1998 and regulation 7 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999.

The appeal tribunal must not take account of circumstances that were not obtaining at the time of the decision under appeal, which, according to the submission to the tribunal (page 1A, paragraph 3.4) was made on 14^th June 2000: see section 12(8)(b) of the Social Security Act 1998, as interpreted in R(DLA) 2 and 3/01.

For the purposes of the claimant's entitlement to the mobility component at the higher rate, the tribunal may have to determine the extent to which the claimant's difficulties are part of her physical condition and disablement. It may also have to determine whether the pain she experiences is part of her physical condition and disablement. On those issues, I direct the tribunal to follow the approach I set out in CDLA/5463/1999. For convenience, I have attached that decision as an Appendix.

The appeal to the Commissioner

5. This is an appeal to a Commissioner against the decision of the appeal tribunal brought by the claimant with the leave of Mr Commissioner Pacey. He has transferred the case to me for determination. The Secretary of State does not support the appeal.

The history of the case

6. The claimant was awarded a disability living allowance from 27^th May 1997. The award was indefinite and consisted of the mobility component at the lower rate and the care component at the lowest rate. On 10^th December 1999, the Secretary of State received a request for what was called 'a review'. By that date, the new adjudication procedures under the Social Security Act 1998 had come into force in respect of disability living allowance. The Secretary of State treated the letter as an application for a supersession. That was the proper way to treat the letter. A supersession at the same rate decision was given. The claimant exercise her right of appeal against that decision, but the tribunal dismissed the appeal.

Procedural issues

7. The grounds of appeal, written by the claimant's representative, criticise the procedure at the hearing. They argue that the claimant did not understand the interpreter and that the interpreted did not translate the whole of the proceedings for the claimant. The claimant was represented at the hearing, although the individual concerned is no longer employed by the organisation representing the claimant.
8. The proper time to make these complaints was either during the hearing itself or soon thereafter. As far as the papers before me show, they were not made until some time later. In those circumstances, the claimant must be taken as having impliedly waived any procedural irregularities that occurred at the hearing.

The effective date of the tribunal's decision

9. The tribunal dismissed the appeal in the terms that the claimant was entitled to a disability living allowance consisting of the mobility component at the lower rate and the care component at the lowest rate from and including 27^th May 1997. That was the effective date of the original award. It was not the correct date for a decision given on a supersession. That should have been fixed in accordance with section 10(5) of the Social Security Act 1998 and regulation 7 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. This is not merely a technicality. By dating the award from the original effective date, the tribunal has made a double award for the period from that date to the proper effective date of the decision on the supersession. That is not permissible. See the decision of the Tribunal of Commissioners in R(I) 9/63, paragraph 18. That alone justifies me in setting aside the tribunal's decision. However, it does not alone justify directing a rehearing, because I could substitute a decision correcting the error in the effective date.

Is a rehearing needed?

10. It is clear that the tribunal relied extensively in its findings of fact on the claimant's own evidence. It did not explain why. Given the claimant's evident mental problems, the tribunal should have explained why it found her evidence of her own abilities reliable. It did not. That also makes its decision wrong in law.
11. In view of the allegations about the hearing, it is possible that the tribunal did not obtain an accurate impression of the claimant's difficulties and circumstances. In those circumstances, it is not safe for me to base a decision on the evidence recorded in the papers alone. A rehearing is needed.

Summary

12. I allow the appeal and direct a rehearing.

Signed on original

Edward Jacobs Commissioner 2nd August 2002

APPENDIX – CDLA/5463/1999

Decision:

13. My decision is that the decision of the Wigan Disability Appeal Tribunal held on 21st May 1999 is not erroneous in point of law.

The appeal to the Commissioner

14. This is an appeal to a Commissioner against the decision of the Disability Appeal Tribunal brought by the claimant with the leave of the tribunal's chairman. The Secretary of State does not support the appeal.

The adjudication officer's decision

15. The claimant's claim for a Disability Living Allowance was treated as made on 6th April 1998. In the claim pack, the claimant asserted difficulties with walking, with care and with cooking. A report was obtained from an Examining Medical Practitioner. The doctor diagnosed ME, insomnia, depression, dizziness and diabetes. As is usually the case with ME, no physical impairment was disclosed by clinical examination. No care needs were identified and the doctor's opinion was that the claimant could walk at least 400 metres slowly before the onset of severe discomfort. No doubt on the basis of this report, the adjudication officer refused the claim.
16. The claimant applied for a review of the decision and submitted in support a Disability Living Allowance Checklist showing her disabilities. A different adjudication officer reviewed the decision under section 30(1) of the Social Security Administration Act 1992, but confirmed the refusal of the claim.

The appeal to the Disability Appeal Tribunal

17. The claimant appealed against the decision given by the adjudication officer on the section 30(1) review. A report was produced from a Consultant Physician and Rheumatologist. A letter was also sent by the claimant local CAB saying that the claimant wished to dissociate herself from one sentence in her letter of appeal (written for her by a volunteer from the Bureau) which suggested that she had anxiety and panic attacks. The claimant attended and gave evidence at the hearing of the appeal, accompanied by her mother and a representative from the CAB.
18. The tribunal awarded a Disability Living Allowance consisting of the care component at the lowest rate for the inclusive period from the date of claim to 5th April 2000. No award was made of the mobility component.

The appeal to the Commissioner

19. The claimant appealed to the Commissioner with the assistance of a Centre providing advice for benefits and appeals concerning ME. The error of law identified on the appeal was that the tribunal had failed to apply the decision of Commissioner Walker in CSDLA/265/1997, in which he said that physical consequences of Chronic Fatigue Syndrome were physical even if the Syndrome itself was not physical in origin.

The tribunal's reasoning

20. The tribunal's reasons for refusing to award the mobility component at the higher rate were:

"As to mobility needs, the tribunal accepted that the appellant felt unable to walk more than 15 to 20 yards at a time owing to severe weakness and fatigue. They were not convinced that this was largely due to a physical problem. They noted the diagnosis of depression as part of the problem here and were of the opinion that the major cause of the debility was a mental health problem arising from depression rather than a physical problem. Accordingly Section 73(1)(a) Contributions and Benefits Act 1992 is not met. If the appellant was as immobile as she suggests, it seemed strange to the tribunal that she should choose to live alone in a house with stairs. It is appreciated that her parents and sister live nearby but the choice to live alone seemed inconsistent with the high level of disability complained of. There is a difficulty with ME in that commonly, there are no physical clinical findings to be made to support the diagnosis and the Examining Medical Practitioner's advice on page 17 of his report was read in that light. Nevertheless, the appellant is taking Amitriptyline 40 mgs at night for insomnia and depression and the tribunal considered on the balance of probabilities that depression was a major part of the problem which she suffered as regards her walking. For higher rate mobility to be paid, the cause of the disability must be a physical reason."

The argument of the Secretary of State

21. The representative of the Secretary of State submitted that there was no error of law in the tribunal's decision. The reasoning has to be excavated from quotations from decisions of Commissioners, but I take it to be this: the tribunal's conclusion was one of fact derived from the evidence and had been adequately explained.

The response of the claimant's representative

22. The claimant's representative criticised the Secretary of State's submission for arguing that ME was not a physical illness. I do not accept that this is what the Secretary of State was saying. I do not read the Secretary of State as making any comment on the nature of ME as a physical or mental illness.
23. The representative also asked for an oral hearing on the ground that:

"This illness is contentious and we believe that argument/discussion should be allowed. The decision is important for many thousands of fatigue illness sufferers."

I have considered that argument and the circumstances of the case as a whole, but have decided not to direct an oral hearing. I can properly determine this appeal without an oral hearing. My jurisdiction is limited to questions of law and, as is clear from my reasoning, an oral hearing on the nature of ME (or any other of its various names) would not have assisted me in deciding the points of law covered in my decision.

The law

24. Section 73(1)(a) of the Social Security Contributions and Benefits Act 1992 provides that an award of the mobility component at the higher rate may only be made if the claimant

"is suffering from physical disablement such that he is either unable to walk or virtually unable to do so".

Regulation 12(1)(a) of the Social Security (Disability Living Allowance) Regulations 1991 provides the additional requirement that the claimant's

"physical condition as a whole is such that ... he is virtually unable to walk".

25. The words "such that" in both section 73(1)(a) and regulation 12(1)(a) show that the reduced mobility of itself is not enough to satisfy the condition that there be a physical condition or disablement. The reduced mobility must result from the claimant's physical condition or disablement. As I pointed out in CDLA/3966/1997, paragraph 15:

'The legislation assumes a three link chain of causation. The chain begins with an injury, disorder or disease. This produces disablement. That disablement leads to limitations to a person's mobility. The second and third links cannot be merged by arguing that the limitation on mobility is itself a physical disablement. The person must have a physical disablement or condition which is separate from and gives rise to those limitations: see Lord Justice O'Connor in the Court of Appeal decision in Harrison v. Secretary of State for Social Services (reported as an Appendix to the decision of the Commissioner in R(M) 1/88). This follows from the words "physical disablement such that ... he is virtually unable to walk".'

26. The exact nature of ME has been, and I believe remains, controversial. Although the nature of the condition is relevant to the issue whether the claimant's reduced mobility results from a physical condition or disablement, it is not decisive. In CDLA/3966/1997, paragraph 31.3, I made a point that is regularly made by Commissioners:

"The proper classification of the claimant's diagnosed condition as physical or mental is not of itself decisive. Likewise, the ultimate cause of that condition is not decisive. What matters is whether the disablement which results from it, alone or in combination with other causes, is mental or physical."

The disablement, of course, must be separate from the reduction in mobility.

27. In CDLA/2822/1999, paragraphs 9 to 11, I emphasised that some comments by Commissioners now had to give way to developments in the medical understanding of the nature of ME, so that the point has been reached that (paragraph 11)

"A tribunal is now entitled to treat the claimant's chronic fatigue syndrome (by whatever name it is called) as involving a physical element that is capable of supporting an award of the mobility component at the higher rate."

However, I emphasised that this was subject to three qualifications:

"11.1 First, of course the other conditions for an award must be satisfied.

28. 2 Second, there must be nothing to suggest that the claimant's mobility is wholly or largely limited by the mental component of the syndrome, if it is possible to disentangle them from the physical component.
29. 3 Third, a tribunal must deal with a specific contention made by a party to the proceedings. So, if the issue is raised whether the claimant's mobility is limited by a physical disablement and condition, the tribunal must give reasons for its conclusion on the issue and record findings of fact to support that conclusion."

The tribunal's conclusion as a fact

30. The issue on this appeal concerns the second qualification. The tribunal, as I read its decision, decided that on the facts of the case the claimant's mobility was essentially limited by her mental state and not by a physical condition or disablement. The tribunal was not saying that ME was a purely mental condition. It was only saying that in this case it was the claimant's mental state that was limiting her mobility. That was a conclusion of fact. The findings of fact are matters for the tribunal and will not involve an error of law, provided that (i) the tribunal was entitled to reach its conclusions of fact from the material before it, on a common sense and rational analysis (see the opinion of the Privy Council delivered by Lord Diplock in Mahon v. Air New Zealand [1984] 3 All England Law Reports 201 at page 210) and (ii) it has explained why it analysed the evidence as it did.

Was the tribunal entitled to reach its conclusion of fact?

31. The claimant reported that walking caused her pain. Is pain of itself a physical disablement or condition? In CDLA/670/1997, paragraph 12, I said that it was. There is some support for this view in the comments made by the Commissioner in CDLA/15106/1996, paragraph 6 which is quoted on page 306 of the 1998 edition of Mark Rowland's Medical and Disability Appeal Tribunals: the Legislation. The Commissioner remarked that pain was a physical symptom and it might in one sense be said that pain was a physical disablement. However, I have in later cases taken a different approach, emphasising in CDLA/4914/1997, paragraph 19 and CIB/5034/1997, paragraph 24 that

"19. ... Ultimately, the origin and nature of the claimant's pain in a particular case is a (difficult) question of fact for the tribunal to decide."

"24. ... I am not saying that all pain, whatever its origin, is to be taken into account under the physical disabilities section of the all work test."

32. In this case, the tribunal referred to the claimant's living conditions, the diagnosis of depression and the claimant's medication as showing that the she was not as physically limited in her activities as she asserted. That analysis of the evidence was not irrational or out of line with common sense. It was also clearly explained. So, there is no error of law in that finding.
33. I notice that the tribunal did not base its conclusion on the lack of any physical findings on clinical examination. If it had done this, its approach to the evidence would not have rational or common sense, as this is a common, if not universal, feature of the condition, even when a physical element is present. However, it did not do this. It acknowledged that the lack of clinical findings was to be expected, but gave other sound reasons for its conclusion.

CSDLA/265/1997, paragraph 11

34. This is the authority relied on by the claimant's representative. I find nothing in that paragraph that supports the appeal or that is inconsistent with my analysis of the law. The Commissioner drew attention to the evidence in that case of a physical disablement in that the claimant's Chronic Fatigue Syndrome had produced pain which had produced reduced muscle movement. The Commissioner's comments were made in the context of the case and related to the evidence before him. He was not making a general statement about the effects of the Syndrome.

Summary

35. The tribunal analysed the evidence rationally and in accordance with common sense. It made findings of fact that were supported by the evidence. It applied the correct law to the facts, and reached a decision that it was entitled to reach on those findings. It gave adequate reasons for its decision. There was no breach of the principles of natural justice. The tribunal's decision is not erroneous in law.

Signed: Edward Jacobs
Commissioner

Date: 29th February 2000