UK Social Security and Child Support Commissioners' Decisions

 


PLH Commissioner's File: CDLA 2975/02

SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF APPEAL TRIBUNAL

ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for: Disability Living Allowance

Appeal Tribunal: Cardiff

Tribunal Case Ref: U/03/188/2001/05688

Tribunal date: 15 February 2002

Reasons issued: 24 February 2002

1. This claimant's appeal is dismissed, as in my judgment there was no error of law in the decision of the Cardiff appeal tribunal sitting on 15 February 2002. In that decision they confirmed an earlier decision given on behalf of the Secretary of State on 27 September 2001 that the claimant's entitlement to the mobility component of disability living allowance, which had been temporarily increased to the higher rate for the 12 months down to 29 November 2001, should revert to the lower rate for life from 30 November 2001, and that her existing life award of care component at the middle rate which was undisputed should remain unchanged and continue at that rate for life from the date of the decision under appeal on 27 September 2001.
2. The appellant who is a lady now aged 53 suffers from severe visual impairment and other difficulties of both a nervous and a physical nature. She has been entitled to both the mobility and care components of disability living allowance at all material times. The documentary evidence before the tribunal showed conclusively that down to 29 November 2000 this had been at the lower rate for mobility because of her undisputed need for guidance and supervision out of doors due to her visual impairment, and at the middle rate for care because of an accepted need for attention or supervision during the daytime due to deterioration in her vision and general health: see the signed record of the adjudication officer's decision of 30 October 1995 making those awards of benefit for life on renewal of the short-term awards at the same rates made by a previous decision of 22 July 1994, and the medical evidence at pages 39 to 69 on which the awards of 30 October 1995 were based.
3. There can in my view be no doubt that the adjudication officer's decision as signed and recorded in the document at page 70 was correct in not then awarding any higher rate of either component, which was simply not supported by the medical evidence. For some reason the periods of entitlement to the mobility and care components under the previous short-term award made in 1994 as noted on page 70 seem to have been different, with the result that the life awards made on 30 October 1995 to continue the existing rates of entitlement for mobility and care had different starting dates of 30 September 1995 and 29 January 1996 respectively; but nothing now turns on that.
4. Those awards under the decision of 30 October 1995 were not in any way disputed at the time, and continue to run for over five years until a further short-period award of mobility component, this time at the higher rate, was substituted by a decision given on 29 November 2000. That was as the result of an application by the claimant's representative by letter dated 20 October 2000 for her mobility component to be increased "as her mobility has worsened, caused by a deterioration in her legs"; the letter however concluding by making it clear that "We are not disputing the award given to the care component and do not wish it to be considered further": see pages 71 to 72.
5. The decision of 29 November 2000 was to alter the claimant's entitlement for mobility to the higher rate, but for the limited period from 30 November 2000 to 29 November 2001 only. The officer making that decision on behalf of the Secretary of State recorded the reasons for this as "Limited award – treatment may help": see pages 93 to 95. The evidence on which that increased award for mobility was made seems to have consisted only of what the claimant herself said in a supplemental claim form she signed on 22 November 2000 (pages 74 to 91), incorporating a very short statement from her GP dated 31 October 2000 at page 83, referring in particular to "limb weakness under investigation". The claimant's form, completed for her by her representative, alleged that she had severe pain when she walked, her body ached and her legs had become so weak and gave way so that she could not walk more than 20 yards before feeling severe discomfort; see page 87.
6. The officer making the short period award appears to have accepted this at face value without asking for any medical report or independent corroboration, no doubt expecting that the investigations referred to by the GP would provide the answer by the time the limited the award at the higher rate would come up for reconsideration or renewal. Nothing was said in that decision of 29 November 2000 about the care component, on which it was clear no issue arose; the effect of that being that the existing life award at the middle rate from 29 January 1996 onwards under the previous decision of 30 October 1995 simply continued unchanged.
7. The later decision which in due course came under appeal to the tribunal was given on 27 September 2001, and resulted from the (necessary) reconsideration of the claimant's existing awards in advance of the expiry of the limited period for which her mobility component had been stepped up to the higher rate the previous year. This time, in addition to getting the claimant to complete a further set of forms explaining her own difficulties and obtaining a short report direct from her own doctor (which noted that she was an "anxious lady" with a good prognosis but otherwise gave little clear help on the questions that had to be answered), a proper medical report by an examining doctor was quite rightly obtained on behalf of the Secretary of State.
8. On the basis of the clinical findings in that report (pages 144 to 154), including the doctor's estimate that the claimant could walk a distance of 80 metres on flat level terrain in a satisfactory manner, and did in fact walk outdoors though requiring to be accompanied because of her visual impairment, the decision was made not to renew the claimant's mobility component at the higher rate after the expiry of the limited period award on 29 November 2001, but that it should revert to the lower rate and remain so indefinitely, (in effect for the remainder of her life as before) because of her undisputed need for guidance and supervision as a visually impaired person. It was also determined that her existing (continuing and undisputed) award of the care component at the middle rate should continue unchanged: see page 157.
9. It was only the mobility aspect of that decision that was sought to be disputed on her behalf in the appeal that eventually came before the tribunal: see the letter from her representative dated 4 October 2001, at page 162, which was what initiated the appeal process. This repeated that while they contended the higher rate mobility component should be reinstated,

"We are not disputing the award given to the care component and do not want it to be considered any further".

10. The appeal tribunal on 15 February 2002 (which was a full tribunal including medical and disability members) had before it all the previous documentary evidence to which I have referred, and also further medical reports and an occupational therapist's assessment submitted on behalf of the claimant by her representative. They heard detailed evidence from the claimant herself and submissions from the representative who attended and conducted the proceedings on her behalf. Regrettably, the Secretary of State failed to attend the hearing or provide any assistance to the tribunal: which was particularly unfortunate in this case because his written submission had misstated the effect of the claimant's existing care award. However this was correctly recorded by the tribunal in their decision and statement of reasons as being only at the middle rate, which was what the actual evidence before them conclusively showed and they confirmed. They recorded after reviewing the evidence that

"Even though the appellant has not disputed the award in respect of the care component, having stated that in writing and her representative stating that at the hearing of her appeal, we still wish to cover all matters and having done so conclude that the present award of the middle rate care component for day attention is the correct rate of care component for the appellant at this time and accordingly the existing award is confirmed."

See the conclusion of their statement of reasons at page 115.

11. That in my judgment was a wholly justified and reasonable conclusion having regard to the way the matter had been put before them and to the evidence. This as they recorded did not establish such a need for attention, or any significant need for supervision, at night such as to justify an award of the higher rate care component as matters stood at the time of the decision made on 27 September 2001, to which as they rightly noted they were restricted by section 12(8)(b) Social Security Act 1998.
12. As regards mobility the tribunal rightly accepted based on all the evidence that because of her visual impairment the claimant required guidance and supervision out of doors in unfamiliar places and was thus certainly entitled to the lower rate mobility component of DLA, as indeed she had been at all material times. However they rejected the contention that the limited award at the higher rate should have been renewed, since on the evidence before them including the up-to-date medical evidence they did not accept that she was so severely physically disabled as to be virtually unable to walk. They referred to the examining doctor's assessment that she could walk for 80 metres in a reasonably normal manner albeit requiring guidance and supervision, and dealt with the claimant's assertion that she could only manage a much shorter distance in the following terms:

"She informed us that she arrived at the appeal hearing by car today and although telling us that she could only walk about 6 yards and, in her claim pack stating that she could only walk 3 to 4 yards, she then informed us that she actually walked from the NCP car park to the tribunal hearing today with 3 or 4 stops because of shortness of breath. That was the distance of 170 metres. There is therefore some discrepancy in the details given by the appellant between her written claim pack and the information she gave us verbally today. Accordingly, we prefer to attach greater weight to the independent professional opinion of the visiting doctor who has based his opinion on his clinical findings and examination and observations rather than the subjective opinions of the appellant which have in fact differed as to how far she can walk. She stated that she can only walk 6 yards or less and then actually manages to walk a minimum of 170 yards, albeit with 3 or 4 stops. Based on this, therefore, we do not accept that the appellant is entitled to the higher rate mobility component of DLA."

13. The claimant's appeal against that decision is based on the contention by her representative in the notice of appeal at page 187 that

"We feel that the tribunal failed to apply the law correctly in relation to the criteria for 'virtually unable to walk' and the requirements of 'supervisory needs' and/or 'attention reasonably required with bodily functions' for the higher rate care. As the medical evidence suggested that the effects of [the claimant's] combined illnesses were sufficient for an award of the higher rate. The tribunal have also failed to give adequate reasons for their findings, particularly in relation to the mobility component."

14. In my judgment, those contentions are not well founded. On the contrary, the tribunal's decision and the way their stated reasons are expressed appear to me to demonstrate entirely adequately that they correctly addressed themselves to the questions that had to be considered in order to determine the appeal before them; and I can find no ground whatever for inferring that they misdirected themselves as to the relevant statutory tests or the way they were required to apply them.
15. Errors of law on the part of an experienced tribunal (and this as already noted was a full tribunal, with a legally qualified chairman, a medical member and one having special experience of disability matters) are not of course to be inferred, or imagined, simply because they reach a result on the questions of fact and degree they have to determine with which another tribunal or professional person might possibly disagree; and appeals seeking to dispute the result on such grounds cannot of course succeed as all they are in effect doing is seeking to reargue the case again on the facts.
16. In the present case I granted leave to appeal to enable the question of whether the tribunal had adequately addressed the effect of the short-term higher rate mobility award on the case to be further considered; but having now considered the papers fully I am quite satisfied that the reasons for the tribunal not having found a continuation of the higher rate to be appropriate are quite obvious from their recorded findings and reasons. There simply was no basis, in view of the medical evidence which they accepted, for continuing the 12-month award which had been made solely on the basis of the claimant's own statements of her walking ability, and without the assistance of medical evidence at all. When medical evidence was obtained, it refuted what she had said.
17. I am not therefore persuaded that any error of law has been shown in the tribunal's decision. It was properly based on evidence which justified the conclusions they reached, and given their own findings of fact was the only reasonable conclusion a tribunal could have reached on the documentary and other evidence which clearly identified the relevant issues. The appeal to me has been supported by the Secretary of State's representative in a two-page written submission on which the claimant's representative says he has "no further observations"; but I have not found that submission of any assistance, as it misstates the effect of the evidence before the tribunal about the existing care award, and also makes a suggestion as regards mobility that "The tribunal have failed to consider this case as a renewal claim and provide adequate reasons for not renewing the preceding award" which appears to me to have no rational basis in fact when one looks at the actual decision.
18. The appeal against the tribunal's decision is accordingly dismissed, with the result that from 30 November 2001 the claimant is entitled only to the lower rate of mobility component, that award continuing indefinitely; and she also remains entitled to her continuing award of the middle rate care component for life on the same basis as before. If, as suggested in the Secretary of State's written submission, there is something in the "DLA computer system" that suggests otherwise, then it is the computer entry that needs to be corrected to conform with the actual terms of the signed and clearly recorded adjudication officer's decision as shown on page 70.

(Signed)

P L Howell

Commissioner

7 November 2002