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[2008] UKSSCSC CDLA_1715_2007 (15 January 2008)

CDLA/1715/2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

This is an appeal by the claimant against the decision of the disability living allowance appeal tribunal given after a hearing at Basildon on 21^st February 2007. An oral hearing of the appeal was directed by Mr. Commissioner Lloyd-Davies on 19^th September 2007, following a request by the claimant, and the hearing took place before me on 23^rd November 2007.

The claimant was unrepresented at the hearing, although she has had the benefit of representation from time to time, but was accompanied by her daughter. The Secretary of State was represented by Mr. Jeremy Heath.

After I had heard briefly from the claimant the reasons why she considered the decision of the tribunal should be set aside and had raised with her some points which concerned me after reading the papers, Mr. Heath made some submissions in which he explained that upon further consideration the Secretary of State accepted that there was an error of law in that the tribunal had not made adequate findings of fact. It follows that the decision of the tribunal must be set aside in any event.

The tribunal's failure, as explained below, arose from circumstances connected with its preference of the evidence contained in the report of an examining medical practitioner dated 25^th November 2006 over other evidence relevant to the claimant's physical condition. That report had been obtained at the direction of an earlier tribunal given on 31^st October 2006, because that tribunal was of the opinion that the medical evidence before it was insufficient. It seems clear that further medical evidence is indeed required and the proper course for me is therefore to remit the matter to be heard by a new tribunal, constituted, differently from the previous tribunal, under the provisions of Part I of the Social Security Act 1998.

I announced my decision to the parties at the hearing and discussed with them the directions which it would be appropriate to make. I now give my written reasons for my decision and set out those directions, which were accepted by the parties. In view of the substantial measure of agreement, I give my reasons more briefly than I might otherwise have done.

The relevant facts are as follows. By a renewal claim received on 11^th November 2004, the claimant made a further claim for disability living allowance. She was then in receipt of the higher rate of the mobility component and the lowest rate of the care component. The details of the original claim are not in the papers before me, but it appears from the letter from the claimant's daughter received on 3^rd January 2005 (p.52 in the bundle) that the award was made some three years previously on the basis that the claimant suffered arthritis in her back and knees and from incontinence.

The renewal claim was initially refused, but the claimant appealed against the refusal. Evidence was obtained from her general practitioner and the decision was reconsidered and revised by a decision made on 29^th March 2005. By that decision the claimant was entitled to the higher rate of the mobility component from 8^th March 2005 to 7^th September 2008 and to the lowest rate of the care component for the same period.

The basis of the decision is set out at p.61 of the bundle. It was as follows:

"Accept [the claimant] needs some help [to] dress, take a bath or shower and though she experiences incontinence she is able to manage this herself. Can use aids to manage incontinence at night. Though she can be unsteady she is mentally clear and aware of the need to take care when moving around her home to avoid falls. Can be safely left for significant periods day and night. Award limited as evidence shows she is being referred for arthritis."

By a further claim form received on 30^th January 2006, the claimant claimed the middle rate of the care component of disability living allowance on the ground that her condition had deteriorated. She said that she had been diagnosed as suffering from emphysema, which caused her to tire very easily and to experience shortness of breath, as a result of which her care needs had increased. She estimated she could walk 15 to 20 yards before needing to stop (her estimate in her previous claim form having been 20 to 25 yards). As respects her care needs resulting from her incontinence, she said, among other things, that her toilet was on the first floor and that she used a commode downstairs during the day.

On 3^rd April 2006 the claim was considered by the decision maker, who found that there had been a change of circumstances but not one which led to a change in the claimant's award. The basis of the decision was as follows:

"C of circs – increased care needs stated. It is accepted that [the claimant] has to keep the use of stairs to a minimum. The evidence indicates that she can use a commode downstairs unaided. There is no indication that she needs help to get out of a chair. Whilst it is accepted [the claimant] has some care needs it is not considered that she required help at frequent intervals during the day or repeatedly during the night. The evidence indicates [the claimant] can be left alone for periods of time. It is accepted that she has to be careful when moving around indoors. It is not considered continual supervision or watching over is required to avoid serious danger."

The claimant appealed on the ground of the deterioration in her condition and stated that she would be supplying further medical evidence. The decision was reconsidered on 7^th June 2006, but was not revised.

The appeal was listed for hearing on 31^st October 2006 and the claimant attended. She was not represented, but her representative had filed a submission on her behalf together with letters in support from the claimant's daughter and niece and an extract from Commissioner's decision CSDLA/829/2002, in which it was held that emptying and cleaning a commode could constitute attention reasonably required in connection with bodily needs if it was reasonably done immediately for the purposes of hygiene. The letters stated that in addition to care she received from her daughter, her two nieces came in four times a day to empty the commode and sometimes needed also to clean their aunt or to help her off the commode. There was, however, no further medical evidence before the tribunal.

The tribunal warned the claimant that its powers extended to reducing or extinguishing the current award and asked her if she wished to proceed with the appeal. There was a short adjournment for her to consider the position, but she decided she did wish to continue. She gave some oral evidence. The tribunal, however, decided that further medical evidence was required and adjourned again, giving a direction that such evidence should be obtained, as I have already mentioned.

The report dated 25^th November 2006, obtained in consequence of that direction and by means of a visit to the claimant at her home, contains the following matters relevant for present purposes:

(1) a note that the claimant lives in a two storey maisonette;

(2) a statement that the claimant does not report that she suffers from incontinence and does not use any incontinence aids;

(3) a finding on examination that there was slight impairment of the function of the claimant's lower legs and the range of movement in her spine was restricted;

(4) a finding that she became slightly breathless after being observed walking 50 metres;

(5) express advice that there was probably significant walking disability likely to be the result of her emphysema;

(6) an expression of opinion that the medical evidence did not show that there was a physical condition that restricted the claimant in her ability to walk outdoors on level ground and that she could probably walk 100 to 200 metres, with 2 or 3 halts due to breathlessness, before the onset of severe discomfort;

(7) an expression of opinion that the claimant could use stairs with difficulty and that bending was a problem;

(8) an expression of opinion that a commode could be used unaided either by day or by night.

The claimant herself obtained a report from her G.P., whose patient she had then been for 21 years. His report, dated 19^th January 2007, makes reference to her use of a commode and states that her ability to walk is affected by both her back pain and her shortness of breath. It is said that she would suffer both problems in less than 50 metres, that she has back pain as soon as she walks and that she can be breathless at rest.

Unfortunately, the claimant was unable to attend the next hearing, but she asked the tribunal to proceed in her absence. The tribunal's decision, which led to the present appeal, was that the claimant was not entitled to either component of disability living allowance with effect from 17^th January 2006, the date from which the Secretary of State accepted her claim for the middle rate of the care component as having been made.

The tribunal referred to the previous hearing in its statement of reasons for the purpose of noting that the claimant had been warned that the tribunal had power to increase, keep as it was, reduce or remove her award, but made clear that no regard was paid to the oral evidence at that hearing.

In considering the claimant's walking ability, the tribunal carefully noted the various pieces of evidence and pointed out that the examining medical practitioner ("the EMP") had an objective view and had given details of clinical signs. The medical member of the tribunal advised that if the claimant had hardly walked since 2002 there would have been much more than slight muscle wasting. The tribunal went on to state:

"Unusually [the EMP] observed the appellant walking, which she did over 50 metres and was only slightly breathless after that distance. He observed no problem with balance. The very fair conclusion that [the EMP] was (sic) that the appellant could walk 100 to 150 metres before the onset of severe discomfort and this was significant walking disability."

The tribunal did not think there was an irreconcilable conflict between the two medical views. The members used their local knowledge to observe that the G.P. has a very small surgery with hardly any scope for walking and concluded:

"The letter … on 19^th January 2007 was plainly written in an understandable intention of supporting his patient and does not have the independence and detail of clinical findings shown by [the EMP]. We prefer the views of the EMP."

In considering the claimant's care needs, the tribunal said:

"The appellant has a commode because she finds it difficult to walk upstairs. We see no reason why the appellant cannot empty her commode after using it. Her arthritis is not in her hands or arms and the EMP states that there is no impairment to her upper limbs. It is noteworthy that the appellant does not claim that she needs help wiping herself."

Generally the tribunal relied heavily on the findings and opinions of the EMP.

The decision was superseded by the tribunal on the ground that the previous decision maker was in ignorance of the clinical findings of the EMP. The award was removed from the date of the claimant's application on the ground that the decision was adverse to her and it was not appropriate for her to have reported the matters of which the decision maker was ignorant.

The claimant wrote to the Tribunal Service on 27^th March 2007 stating her wish to appeal on the grounds, among others:

(1) that the EMP had not seen her walking 50 metres, but rather 15 or16 feet;

(2) the EMP never asked her about the commode, but she did tell him she used one;

(3) if she could not get upstairs to use the toilet, she would not be able to do so using the receptacle to empty it;

(4) the EMP did not ask her if she was able to do any leg exercises. In fact she uses a leg and foot exerciser and her daughter massages her legs every day.

Leave to appeal was refused by the district chairman on 10^th April 2007 on the ground that the application did not raise a relevant point of law. The claimant renewed her application to the Commissioners under cover of a letter dated 8^th May 2007 from solicitors which drew attention to the weight given by the tribunal to the EMP's estimate of the claimant's walking ability and also drew attention to the needs disclosed by the tribunal's finding that the claimant used a commode.

Leave to appeal was given by Mr. Commissioner Lloyd-Davies, on the grounds that questions arose as to the correct date for supersession of the claimant's award and as to the correctness of the tribunal's decision to ignore the evidence before the previous tribunal.

The Secretary of State's original submission on the appeal, dated 30^th July 2007, did not accept that any error of law was shown in the tribunal's reliance on the report of the EMP. It was accepted that the tribunal had erred in superseding the award from the wrong date, the correct date being said to be that applicable under section 10(5) of the Social Security Act 1998, but that that was an error which could be corrected by the Commissioner. It was also accepted that the tribunal ought not to have ignored the record of the proceedings before the previous tribunal, but it was submitted that if the tribunal had taken that material into account it would not have had a significant effect on the tribunal's decision.

The claimant's observations in response were set out in a letter dated 4^th September 2007 from her solicitors which contended:

(1) that the facts found by the tribunal were such that if it had acted reasonably and interpreted the law correctly it would not have reached the decision it did reach;

(2) that the report of the EMP should not have been given preference over the report from the G.P. by a reasonable tribunal.

On consideration of the papers there appeared to me to be two difficulties with the tribunal's decision to attach such a degree of weight to the EMP's report as to prefer it to the G.P.'s report as respects walking ability and to find it determinative as respects care needs. They were:

(1) the uncritical acceptance of the EMP's statement that he had observed the claimant walk such a considerable distance as 50 metres, despite the tribunal's use of the word "unusually". It appeared to me very unusual indeed that an EMP should be able to observe a claimant walk 50 metres in a two storey maisonette. At best the likelihood would be that that would be an unusual form of walking, as the claimant came up to the wall and turned to retrace her steps on several occasions. By contrast, the tribunal used local knowledge to conclude that the claimant's G.P. could not have seen her walk a comparable distance. It was no surprise to find that the claimant challenged that evidence from the EMP;

(2) the tribunal's own acceptance that the claimant did use a commode, both in the passage I have quoted and in the tribunal's reference to the evidence of the daughter and niece, although the tribunal did not accept that their help was reasonably required. The tribunal made no comment on the fact that the EMP had said that no incontinence aids were used.

Before me, the claimant gave further evidence about the dimensions of her room and the distance the EMP had seen her walk. On that evidence, it was about 10 yards at most. She also said that she had discussed her incontinence with the EMP, that he saw where the commode was and they discussed the fact that she had an upstairs toilet.

Mr. Heath accepted that possible grounds of challenge to the decision were that the findings of fact were inadequate or that the reasons given for the decision were insufficient. He further accepted that the tribunal's findings of fact in relation to the claimant's use of a commode were inadequate, since they were heavily based on the EMP's findings although he had not dealt at all with incontinence, which affected the weight to be given to his report.

As I have explained, the claimant has throughout referred to her incontinence as one reason why she has significant care needs. It seems to me very unlikely indeed that she did not mention that problem to the EMP. It follows that it is correspondingly likely that there is one significant error in his report and in any event the tribunal had no assistance from the report on the severity of the problem or the likelihood that the claimant did sometimes, as was said in the letters in support of the claim although the point was not apparently recognised by the tribunal, need help cleaning herself or getting off the commode. I agree that the tribunal failed to make adequate findings of fact as to the claimant's needs as a result of her incontinence. Nor, in my view, did the tribunal give adequate reasons, since they failed to note and to deal with the omission of any reference to incontinence aids in the EMP's report.

I also take the view that the tribunal failed to deal adequately with the claimant's walking ability. The omission of any reference to incontinence affects the general weight to be given to the EMP's report, making a simple overall preference for the EMP's evidence less sustainable. The very unusual claim to have observed the claimant walking 50 metres is to be viewed in that context. Plainly it was possible that he had indeed done so, but it was not self-evidently more likely that he had done so than that the claimant's G.P. had observed her walking a sufficient distance to express the views he expressed. While I recognise that the tribunal was also influenced by the lack of serious muscle wasting, the way in which the EMP's evidence was dealt with is sufficient in my view to amount to a failure to give sufficient reasons.

Those conclusions plainly require that the decision of the tribunal should be set aside as erroneous in point of law and, as already stated, I set it aside accordingly. Those conclusions also demonstrate why medical evidence is at the heart of this appeal and why it must be remitted for further hearing, as I do, instead of being a matter on which I can myself reach a final decision.

One way of beginning to meet the difficulty over the lack of satisfactory medical evidence is of course to invite the Secretary of State to obtain a further report from a new examining medical practitioner and I understand from Mr. Heath that that will be done. There is a practical difficulty that the tribunal hearing the case will be trying to assess the claimant's medical condition as at 3^rd April 2006, the date of the decision appealed against. In my view the tribunal would be helped by sight of the notes of the claimant's G.P., which again I understand the Secretary of State will seek to obtain. Finally, it appears to me that the tribunal might be assisted by seeing the medical evidence on which the original award of the higher rate of the mobility component and the lowest rate of the care component was made. I understand that a report from an examining medical practitioner was then obtained and I direct it be added to the papers before the new tribunal, which will include the additional medical evidence I have mentioned.

I should add that in my view the Secretary of State was right to accept that the tribunal erred in law in ignoring the record of proceedings at the previous tribunal. The record forms part of the material which will be before the new tribunal and should be considered by that tribunal accordingly.

The question from what date the decision of the tribunal should have taken effect does not arise in the light of my decision.

The claimant had a number of concerns about the EMP's report in addition to those which I have mentioned. In the circumstances it is not necessary for me to go into what those concerns were or to attempt to deal with them. On the material before me it would not be possible to form a final view on the matters raised by the claimant.

I should, however, draw attention to one point. I was surprised to note that the EMP's report, when recording the medication prescribed for the claimant, appeared to include no analgaesics. The claimant explained to me that at the examination she had given the EMP a copy of her repeat prescription. Unfortunately, she had two different repeat prescriptions and gave him one only. She says that she telephoned to say that there was an omission, or possibly more than one, but it seems that no alteration was made.

The claimant was made aware at the hearing that it still remains the case that the new tribunal will have power to increase, keep the same, reduce or remove her entitlement under her existing award. She was also reminded of the point, which she now appreciates, that it is very helpful to a tribunal to hear oral evidence from a claimant. She has raised many points of fact subsequently which are ones which she could have raised before the original tribunal if she had been present. It is to be remembered that the Commissioners do not hear appeals on the facts, but appeals on a point of law. The claimant is encouraged to seek representation at the hearing before the new tribunal. For the time being, of course, her entitlement remains as it was found to be in the decision made on 3^rd April 2006.

Finally, the claimant's attention at the hearing before me was also drawn to the possibility of making a fresh claim with a view to protecting her position for the future whatever the outcome of the rehearing if she decides to proceed with it.

(signed on the original) E Ovey

Deputy Commissioner

15^th January 2008