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[2008] UKSSCSC CDLA_3585_2007 (04 April 2008)

DECISION OF THE SOCIAL SECURITY COMMISSIONER

The claimant's appeal to the Commissioner is allowed. The decision of the Warrington appeal tribunal dated 25 June 2007 is erroneous in point of law, for the reason given below, and I set it aside. The case is referred to a differently constituted appeal tribunal for determination in accordance with the directions given in paragraphs 16 and 17 below (Social Security Act 1998, section 14(8)(b)).

In this case, the representative of the Secretary of State has suggested in a reasoned submission that the case be remitted to a new appeal tribunal for rehearing. The claimant did not object to that suggestion when replying, although he did (entirely understandably) object to the decision of the appeal tribunal of 25 June 2007 being set aside without reasons. In particular, he wanted his contentions about the Disability Discrimination Act dealt with. In the circumstances there is no need to set out all the factual details of the case.

The appeal tribunal was concerned with the claim for disability living allowance (DLA) treated as made on 24 January 2007. The illness or disability identified was epilepsy. Grand mal, petit mal and absences were mentioned and the claimant suggested that the condition, which had been under control on medication for many years, had recently worsened in the stress of a recent redundancy and a process of being weaned off a dangerously high level of medication. Help with some activities was mentioned, plus supervision when out of doors or cooking. On a more detailed questionnaire signed on 8 February 2007, the claimant stated that he had had grand mal fits on 7 February 2007 and 21 December 2006, it being several years since the previous one, and petit mal fits on 7 February 2007, 5 February 2007, 23 January 2007 and 12 January 2007. It was not clear whether the fits were during the day or the night (in the claim pack the claimant had mentioned nocturnal seizures: page 36). A questionnaire signed by a doctor in the claimant's GP's practice (not the GP named in the claim pack) on 8 February 2007 said that he had last been seen on 16 January 2007 and noted as at 20 October 2006 a fit frequency of nil and freedom from seizures for the last three to four years.

On that evidence, the decision was given on 13 March 2007 that the claimant was not entitled to either component of DLA from and including 24 January 2007. Referring to the two seizures in the last 12 months it was said that overall the frequency was not enough to qualify for benefit.

The claimant appealed, saying that the details he had already given should qualify him for the care component, and opted for a "paper hearing". The appeal tribunal of 25 June 2007 disallowed the appeal. It referred to the evidence of the claimant having been seizure-free for three to four years and said that if the claimant's epilepsy had been out of control he would have been sent to hospital for treatment. It then repeated the decision-maker's reasoning about the frequency of seizures and concluded that there was not substantial danger giving rise to any supervision needs. The need for attention in connection with a grand mal fit was too infrequent to qualify.

The claimant now appeals against the appeal tribunal's decision with my leave. In the application to the chairman, the claimant submitted that the appeal tribunal had not taken into account the arguments he had raised in his original claim and his first appeal and went on to describe in detail the disabling effect of his epilepsy. In the application to the Commissioner he added a detailed analysis of why he would be classed as disabled under the Disability Discrimination Act 1995. When granting leave to appeal to the Commissioner, I said this:

"The claimant may well feel in retrospect that he was not well-advised to have opted for a `paper hearing'. He knew what documents were included with the Secretary of State's written submission to the appeal tribunal and was not entitled to assume that the appeal tribunal would know anything about the `original claim' and `first appeal' as mentioned in his letter dated 26 July 2007. An appeal tribunal only has access to the evidence put to it in the specific appeal before it.

However, it may be arguable that the appeal tribunal erred in law on the following grounds, whether individually or in combination. Was this a case where, in view of the considerable differences between the picture painted by the claimant and by the doctor in his GP's practice in the report dated 8 February 2007, the appeal tribunal was not entitled to conclude that it was proper to make a decision on the papers, at least without giving some further explanation? Did the appeal tribunal, in paragraph 3(iii) of the statement of reasons, misinterpret the claimant's evidence in his statement dated 8 February 2007 about the frequency of grand mal fits, by talking of two in the twelve months before the decision of 13 March 2007, when the two occasions mentioned were 21 December 2006 and 7 February 2007? Did the appeal tribunal make clear enough findings about whether or not it accepted the claimant's evidence and how far it rejected it as inconsistent with the doctor's report of 8 February 2007?"

In the submission dated 31 December 2007 the representative of the Secretary of State supported the appeal. It was submitted that, applying the principles set out in Commissioner's decision CDLA/1552/1998, it was in the particular circumstances unfair to the claimant for the appeal tribunal to have failed to adjourn for there to be an oral hearing, at which the claimant would have the opportunity to give evidence and answer questions in person. As noted above, the claimant did not object to the suggestion that his appeal be reheard, but expressed disappointment that the Secretary of State's submission had not dealt with his case about the Disability Discrimination Act, which he submitted had the consequence that his condition should be judged as it would be without medication.

I deal first with those two specific points made by the claimant. The Disability Discrimination Act 1995 ("the DDA"), as now amended by the Disability Discrimination Act 2005, is not relevant to the question of whether or not a claimant satisfies the statutory conditions of entitlement to DLA and should be awarded that benefit. The DDA imposes duties, particularly not to discriminate against a disabled person, only in the areas specified in the DDA, such as the employment field, education, public transport, and the provision of premises and other goods and services. Deciding whether a person is entitled to DLA under the conditions set out in sections 71 to 76 of the Social Security Contributions and Benefits Act 1992 and the statutory instruments made under the powers in that legislation does not fall within any of the areas just mentioned. But section 21B(1) of the DDA does make it unlawful for a public authority to discriminate against a disabled person when carrying out its functions. The decision-maker who made the decision of 13 March 2007 on behalf of the Secretary of State and the appeal tribunal of 25 June 2007 would both on the face of it come within the meaning of "public authority".

However, section 21C(1)(a) provides that section 21B(1) does not apply to "a judicial act (whether done by a court, tribunal or other person)". There is an identical exclusion in section 49C(1)(a) in relation to the more wide-ranging duties imposed on public authorities by section 49A(1). Therefore, an appeal tribunal (and, incidentally, a Commissioner on appeal) is not subject to that duty in the DDA when making a decision on cases within its jurisdiction. Those are judicial acts. In addition, there is a general exclusion in section 59(1) of the DDA:

"(1) Nothing in this Act makes unlawful any act done--

(a) in pursuance of any enactment; or

(b) in pursuance of any instrument made under any enactment by--

[a Minister of the Crown, or Scottish or Welsh authorities]."

Under section 68(1) an "enactment" includes statutory instruments made under powers given in Acts of Parliament as well as its ordinary meaning referring to each section of an Act of Parliament. Section 59(1) applies both to the decision-maker on behalf of the Secretary of State and to an appeal tribunal or Commissioner. It means that they must all apply the terms of the benefit legislation that is relevant to the case before them, and that the terms of that legislation are not subject to the principles of the DDA.

It was therefore not relevant to the questions that the appeal tribunal of 25 June 2007 had to determine whether or not the claimant was a disabled person for the purposes of the DDA. The appeal tribunal's obligation was to apply the terms of the DLA legislation.

On the issue of whether the effect of medication should be taken into account, I have not found a previous decision of a Commissioner dealing directly with the question in the context of epilepsy. The assumption has always been that the starting point is a claimant's actual condition taking account of the effects of medication. That is in my judgment correct in law. The result follows from the principle, in relation to the care component of DLA, that in judging whether a person "requires" attention from another person in connection with bodily functions or continual supervision to avoid substantial danger or any of night-time assistance specified in section 72(1)(c) of the Social Security Contributions and Benefits Act 1992, the test is whether the assistance is reasonably required. Thus if there is no need for assistance from another person if a claimant takes certain medication, and there is nothing to indicate that it would be reasonable for the claimant to decline to take the medication, then that assistance is not reasonably required.

That was effectively decided by Mr Commissioner Jacobs in decision R(DLA) 10/02 in the wider context of medical treatment generally. That was a case where an appeal tribunal had suggested that a claimant's mental state would have been improved (so as to reduce her need for assistance from others) if she had accepted treatment offered. The representative of the Secretary of State submitted that in certain circumstances an unreasonable refusal of help from medical services which would eliminate or reduce care needs could result in those needs not being reasonably required. The Commissioner accepted that submission, although stressing the range of circumstances that could be taken into account in deciding whether or not it was reasonable for a claimant to decline treatment that was available.

It must follow that when, as here, a claimant is currently receiving medical treatment, including medication, the question of what assistance is reasonably required is to be judged according to his needs subject to that treatment or medication unless there is something to indicate that the treatment or medication might cease to be available or that it would not be unreasonable to cease to accept it. The concept of "reasonably requires" is relevant to the care component. For the lower rate of the mobility component the test is whether a claimant "cannot" take advantage of the faculty of walking outdoors without guidance or supervision from another person. Essentially the same principle must apply. If a claimant is, or would be, able to take advantage of that faculty without guidance or supervision as a result of available medical treatment or medication that it would be unreasonable to decline, the test of "cannot" is failed. In relation to the higher rate of the mobility component (which is not in issue in the present case), regulation 12(4) of the Social Security (Disability Living Allowance) Regulations 1991 provides that a claimant is not be taken to be unable or virtually unable to walk if not unable or virtually able to do so with a prosthesis or artificial aid which he habitually wears or would be suitable in his case. And whether a claimant is in severe discomfort when walking would be judged subject to treatment or medication (eg painkillers) that it would be reasonable to take.

Accordingly, although I do not doubt that it would be right for DLA purposes to regard the claimant as physically disabled by his epilepsy even while the fits were very largely suppressed by his medication, that does not in itself satisfy the conditions of entitlement to benefit. Those conditions are very specific and satisfaction of them must be judged subject to the use of medication as explained above. Therefore, the appeal tribunal did not go wrong in law by failing to look at what the claimant's circumstances would have been if he had no medication at all.

I am not sure that I agree with the Secretary of State's representative in the submission of 31 December 2007 that it was unfair for the appeal tribunal not to have adjourned for there to be an oral hearing. Rather, I think that the error of law was in failing to give adequate reasons for proceeding on 25 June 2007 without an oral hearing in circumstances where there was a case to be made that one was necessary. That is coupled with what is perhaps a more serious failure to give adequate reasons, as mentioned when I granted leave to appeal (see paragraph 6 above). The claimant's case to the appeal tribunal was that there had been a recent adverse change in the frequency of fits after November 2006 and had given a plausible explanation of what might have caused the change at that time. In those circumstances, it was misleading to regard the two grand mal fits reported in December 2006 and February 2007 as indicating merely an overall frequency of two per year. The appeal tribunal did not explain why it adopted that view. Nor did it adequately explain how it found what was in the GP records for 20 October 2006 relevant if there had been an adverse change after November 2006 (although it was still odd that, if the claimant had last been seen on 16 January 2007, there had apparently been no mention of the grand mal fit in December 2006). The claimant was left not knowing whether the appeal tribunal was rejecting his evidence about the fits that he said had occurred recently. All that adds up to a failure to give adequate reasons that is an error of law justifying the setting aside of the appeal tribunal's decision.

For that reason I set aside the appeal tribunal's decision as erroneous in point of law. The claimant's appeal against the decision dated 13 March 2007 is referred to a differently constituted appeal tribunal for determination in accordance with the following directions. There must be a complete rehearing of the appeal on the evidence presented and submissions made to the new appeal tribunal, which will not be bound by any findings made or conclusions expressed by the appeal tribunal of 25 June 2007. There will be an oral hearing, as for all cases referred back from Commissioners. I am sure that the new appeal tribunal would be greatly assisted if the claimant plus any members of his family who know of his condition (eg his wife) and any representative were able to attend to give evidence and answer questions in person. The claimant may of course also put in further written evidence or submissions (bearing in mind that there is nothing currently in the papers from an earlier claim or appeal). I remind him that the effect of section 12(8)(b) of the Social Security Act 1998 is that the new appeal tribunal will be prohibited from taking into account any circumstances occurring after 13 March 2007.

I do not need to give any directions of law on the conditions of entitlement to DLA beyond the reminder that the approach set out above to the relevance of the Disability Discrimination Act 1995 (paragraphs 8 to 10) and of the effects of medication (paragraphs 11 to 14) must be applied. The evaluation of all the evidence will be entirely a matter for the judgment of the members of the new appeal tribunal. The decision on the facts in this case is still open.

(Signed) J Mesher

Commissioner

Date: 4 April 2008