Decision No: C2/95(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS
(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)
(NORTHERN IRELAND) ACT 1992

DISABILITY LIVING ALLOWANCE

Application by the claimant for leave to appeal
and appeal to the Social Security Commissioner
on a question of law from the decision of the
Dungannon Disability Appeal Tribunal
dated 3 November 1993

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application by the claimant for leave to appeal against the decision of a Disability Appeal Tribunal (DAT) in connection with his claim for disability living allowance.  I arranged an oral hearing at which claimant was neither present nor represented.  The Adjudication Officer was represented by Mr Shaw.

2.	Briefly the facts are that the claimant made a claim for disability living allowance in September 1992.  That claim was disallowed by an Adjudication Officer on 31 October 1992, but on 3 July 1993 an Adjudication Officer reviewed and revised the original decision so as to award the care component at the lower rate for help with preparing a cooked main meal but made no award in respect of the mobility component.  Claimant appealed against that decision and his appeal was heard by a DAT which recorded that it had taken into account hospital notes and records, Dr H…s letter, the submission and letters from claimant's sister.  For reasons which are not apparent to me the DAT made two separate findings of fact, and two reasons for its decision and treated the care component and the mobility component as separate appeals and gave two separate and different decisions even though Disability Living Allowance is a single benefit which contains two components.  I can see no reason for the separate decisions.

In the decision headed "Mobility Component" the Tribunal made the following findings:-

"We find that the appellant can walk at least 400 yards in 20 minutes, without severe discomfort.  The exertion required does not cause danger to life or a risk of serious deterioration to health.  On 11 6 93 Doctor Russell reported that appellant had inadequate  knowledge to prepare nourishing adequate meals.  Appellant is not severely disabled physically/mentally so as to require guidance/supervision when outdoors."

and gave reasons for its decision as follows:-

"Given the findings of fact we do not consider that the appellant is neither unable to walk or virtually unable to walk.

There is no evidence that he is severely disabled physically or mentally as to require guidance or supervision when outdoors.  We accept Doctor …'s comment regarding inability to prepare a main meal particularly during appellant's alcohol rehabilitation which is presently ongoing."

In relation to the decision headed "Care Component" the Tribunal made the following findings:-

"Appellant 'dribbles' at night.  Is attending Alcoholic Anonymous for alcohol problem. Attended Saint Luke's 8 months ago.  Appellant has not taken drink since that.  Appellant feels a little insecure and like someone to be in the house when he takes a bath.

Has difficulty cooking and preparing a main meal - this has been accepted by the Department and is not in dispute.  Appellant has impaired vision in right eye."

and gave reasons for its decision as:-

"Panel does not accept that appellant requires frequent attention in connection with bodily functions or continual supervision.  Although there is some bed wetting, that is dribbling, we do not accept that this necessitates prolonged or repeated attention during the night or someone to be awake or attention at frequent intervals.  The appellant also referred to blackouts.  However, we do not accept that these are as frequent as suggested by the appellant in view of the medical evidence available to us.  Therefore there is no need for continual supervision or frequent attention.

As neither the day or night time condition are satisfied then the middle or higher rate cannot be paid."

3.	After claimant lodged notice of appeal the Adjudication Officer replied by letter with the following comments:-

"I have read Mr Q...'s application for leave to appeal but can find no point raised by him which would constitute an error in law on the part of the tribunal.
However the Commissioner may wish to consider the following points:

(1)  Neither Mr Q... nor I are in a position to properly judge the merits of the tribunal decision because an important area of evidence relied upon by the tribunal, has not been disclosed -namely the hospital records.

(2)  ...................

(3)  If the Commissioner agrees that the lowest rate care component is payable, the tribunal's restriction of the award to 2 years without explanation is called into question - section 31(6) of the Administration Act and regulation 17(1) of the Claims and Payments Regulations.

If the Commissioner decides that point (1) above constitutes an error of law, it may be best to refer the case back to a new tribunal to reconsider the possibility of a higher award, the existing life award made by the adjudication officer being allowed to stand meantime."

At the hearing Mr Shaw enlarged on his argument on the breach of natural justice in the situation where the Tribunal saw evidence not seen by either party.  He said that the Tribunal, if it thought it necessary to consult medical records, should have followed the decision of a GB Commissioner R(I)6/67 which set out that a proper extract should be supplied to the parties.  He also said that one of the problems was if an Adjudication Officer had to carry out a review of the decision then he would not know upon what evidence the Tribunal had based its decision so he would not be in a position to know whether or not there had been a change of circumstances.  He also said that quite often the Adjudication Officer did not know that the Tribunal had received hospital notes until he read the written decision referring to the hospital notes because although the consent of the claimant would be obtained, allowing the Tribunal to get the hospital notes, no reference at all would be made to the Adjudication Officer, no consent sought or given.  He drew attention to the fact that this was a follow-on from the procedure which was adopted by the Medical Appeal Tribunals (MAT) but said that it has been clearly stated on more than one occasion by Commissioners that DATs are not the same as MATs, because the MATs had two consultants who generally were specialists in the field relating to claimant's complaints, and also that the Tribunal carried out its own medical examination whereas DAT were forbidden to carry out any examination but were empowered to seek a medical report if it considered it needed such a report.  Mr Shaw also questioned whether or not the DAT had the expertise to assimilate hospital reports as there was only one doctor, generally a GP sitting on the panel.

4.	Mr Shaw then turned to the question of the period of the award.  He said the Adjudication Officer had awarded the lower rate of care component for an indefinite period and the Tribunal, while it said it was upholding the Adjudication Officer's decision awarding the lower rate from 24 September 1992 went on to restrict it to 24 September 1994.  So in fact they were not upholding the Adjudication Officer's decision but were altering it very considerably without giving any reason or without any argument being heard by the Tribunal on that point and it is doubtful from the records whether or not it was put to the claimant or his representative that the Tribunal had in mind restricting the Adjudication Officer's award in this way.  Mr Shaw argued that section 31(6) of the Social Security Administration (Northern Ireland) Act 1992 gave a statutory protection to a claimant who had received an award and that section 31(6)(c) laid down that where a person has been awarded a disability living allowance the Tribunal shall not consider either the persons entitlement or the rate or the period of the award unless the appeal expressly raised that question or information is available to a Tribunal which gives it reasonable grounds to believe that entitlement to the component or entitlement to it at the rate awarded or for that period ought not to continue.  He referred to regulation 17 of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987 which sets out that a claim for benefit shall be treated as made for an indefinite period and that any award of benefit on that claim shall be for an indefinite period.

5.	Mr Shaw also raised the point that there was a question of claimant's entitlement to the higher rate because he suffered blackouts.  It was clear from all the evidence that he was not a fit man.  As far as his ability to walk was concerned there was no evidence that the Tribunal considered the time and distance test for walking.  He said that it found that he could walk at least 400 yards in 20 minutes and that it should have made a finding relating to the time it took him to walk that distance.

6.	I have considered all that has been said and I have considered all the documents in this case.

Hospital Notes

In the documents supplied to me there is a document DAT2 marked, "please complete and return immediately".  "It is to your advantage for the Disability Appeal Tribunal to have all available information before them, so you should give full and complete information".  Then the question is asked, "Have you attended hospital because of your disability?".  "If "yes" fill in boxes overleaf. You should also fill in question 2,if it applies."  Question 2 asks for the name of any specialists who examined the claimant in connection with his disability and the name and address of the General Practitioner and of any occupational therapist or physiotherapist and the name and address of the Health Visitor or a District Nurse.  The boxes overleaf which were referred to ask the name and address of the hospital or clinic, including department, if out-patient or ward, if in-patient, the date of the treatment, the reference number and whether or not X-rays were taken.  Then the question is asked "Do you agree to your hospital records (including X-rays, Occupational Therapy and Physiotherapy notes) and General Practitioner or Health Visitor or District Nurse notes being obtained for the assistance of the Disability Appeal Tribunal in considering your claim?"  "(If you agree, the records would be treated in the strictest confidence for the tribunal use only)."

7.	Before dealing with the instant case, I think a few general remarks on the nature of DATs would be appropriate.  If one compares DATs with the MATs then it is quite clear that the DAT is not a Medical Tribunal in any form but that it is more in the nature of an Social Security Appeal Tribunal (SSAT) and there is no suggestion that a SSAT should get hospital notes.  If one compares the regulations relating to DAT with those relating to MAT, the difference is seen very clearly.   While the MAT members were not only empowered to and did on nearly all occasions carry out a medical examination and were also obliged to carry out a walking test in the mobility allowance claims, a DAT is strictly forbidden by the regulations from either carrying out a walking test or carrying out any medical examination of the claimant.  This is contained in paragraph 53 of the Social Security Administration (Northern Ireland) Act 1992 which reads:-

"53.-(1)  Where an appeal has been brought under section 31 above, a person who may be nominated as chairman of a disability appeal tribunal may, if prescribed conditions are satisfied, refer the claimant to a medical practitioner for such examination and report as appears to him to be necessary for the purpose of providing a disability appeal tribunal with information for use in determining the appeal.

(2)  At a hearing before a disability appeal tribunal, except in prescribed circumstances, the tribunal -

(a)  may not carry out a physical examination of the claimant; and

(b)  may not require the claimant to undergo any physical test for the purpose of determining whether he satisfies the condition mentioned in section 73(1)(a) of the Contributions and Benefits Act."

This must be read in conjunction with paragraph 26F of the Social Security (Adjudication) Regulations (Northern Ireland) 1987 which reads:-

"Examination and report by a medical practitioner

A person who may be nominated as chairman of a disability appeal tribunal may refer a claimant to a medical practitioner for examination and report if he is satisfied that without such examination and report an appeal by the claimant cannot be properly determined."

Turning to Mr Shaw's arguments, I do not see it as the function of a Commissioner to instruct an adjudicating authority or an Independent Tribunal authority how adjudications or Appeal Tribunals are conducted.  But I think it would be helpful if those who drafted the form DAT2 took into consideration the fact that before a claimant is medically examined and a report made, the Chairman of the Tribunal must be satisfied that without either an examination or a report the appeal could not be properly determined.  Nor do I consider it any part of the function of a Commissioner to decide or to advise upon the procedure of an Appeal Tribunal, that is a matter for those whose responsibility it is to deal with.  Although it is a Commissioner's function to enquire into whether an error of law occurs in the manner in which the evidence is received and the hearing conducted.

I accept that the Adjudication Officer makes a perfectly valid point that the Tribunal should not decide upon evidence which is not available to all the parties but would qualify that by saying unless all the parties agree to that course.  A claimant is entitled to furnish whatever evidence is relevant to the Tribunal and if it is considered that hospital notes are relevant then there is no problem with the claimant producing them or authorising someone else to obtain them, and the claimant can therefore not be heard to complain if the Tribunal makes use of these notes.  However, the Adjudication Officer is in a completely different position.  I am satisfied that either party to an appeal before a DAT can object to the Tribunal seeing evidence which is not available to all the parties and it is ingenuous for the Adjudication Officer to argue that there are many times when an Adjudication Officer does not know until he sees the decision of the Tribunal whether or not the Tribunal saw medical reports because the Adjudication Officer must know or ought to know that the form DAT2 which I referred to is the standard form of appeal which contains the questions which I have detailed in paragraph 6 relating to the authority given by the claimant for the Tribunal to see the hospital notes, so the Adjudication Officer must know at that point that the Tribunal had that authority.  I am satisfied that it is wrong of the Tribunal to make a decision upon these notes that are not available to the Adjudication Officer unless the Adjudication Officer consents to the Tribunal seeing them without them being produced to the Adjudication Officer, and if an objection is taken at a hearing by an Adjudication Officer then the Tribunal would be wrong in taking the notes into consideration after such an objection.  So in any case were the Adjudication Officer is not willing to allow the Tribunal to reach a decision without affording him an opportunity of studying and commenting upon the hospital notes which the claimant had agreed to be made available to the Tribunal then in my view it is a breach of the rules of natural justice if a Tribunal proceeds with the case and makes use of the evidence which was not available to the Adjudication Officer.  If the Adjudication Officer declines to give his consent then as far as I can see that is an end to the matter, except that the Adjudication Officer or the claimant may wish to give a qualified consent; for example it might be agreed as in Great Britain that an extract of the relevant facts of the records would be prepared and submitted to both parties in advance of the Tribunal hearing.   The important factor would be the consent of both parties to the procedure adopted.  Now that the point has been taken by the Adjudicating Authority and it knows; or as I said, ought to know that the DAT may have the authority of the claimant to see the hospital notes, then if the Adjudication Officer does not raise any objection at or prior to the hearing of the appeal by the Tribunal he cannot be heard later to attack the hearing on the ground that the Tribunal heard that evidence without his consent.

8.	Duration of Award

Turning to the duration of the award, section 71(3) of the Social Security Contributions and Benefits (NI) Act 1992 reads:-

"A person may be awarded either component for a fixed period or for life but if his award of a disability living allowance consists of both components he may not be awarded the components for different fixed periods."

The fore-runner of that statutory provision was 37ZA(3) of the Social Security (Northern Ireland) Act 1975 and this provision should be read in conjunction with regulation 17 (1) and (6) of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987 which reads:-

"Duration of awards 

17.-(1)  Subject to the provisions of this regulation and of section 37ZA(3) of the Act(a) (disability living allowance) and Article 21(6) and (6F) of the Order(b) (family credit and disability working allowance), a claim for benefit shall be treated as made for an indefinite period and any award of benefit on that claim shall be for an indefinite period.

....

(6)  If, in any case outside paragraph (4), it would be inappropriate to treat a claim as made, and to make an award, for an indefinite period (for example where a relevant change of circumstances is reasonably to be expected in the near future) the claim shall be treated as made and the award shall be for a definite period which is appropriate in the circumstances."

9.	It will be seen that claims are to be treated for an indefinite period and that any award of benefit shall be for an indefinite period subject to the provisions of section 37AZ(3) of the Social Security (Northern Ireland) Act 1975 which I have quoted above.  So it would appear that claims for DLA are treated differently from other claims and that while other claims and awards may be for an indefinite period, claims for disability living allowance must be either for a fixed period or for life.  Consequently there is a discretion vested in the Adjudication Officer and in the Tribunal relating to the period which must be either fixed or for life.  In that event the Tribunal would be obliged to spell out which period it considered appropriate and why.

10.	Turning to the instant case the Adjudication Officer awarded the lower rate care component for life and the Tribunal although recording that it upheld the decision of the Adjudication Officer limited the lower rate care component to 2 years without any explanation or without any argument being heard or raised at the Tribunal in relation to the length of the award or any suggestion that the Tribunal intended to restrict the period.  I am satisfied for that reason alone that the Tribunal erred in law.

11.	I am also satisfied that the Tribunal did not give any or sufficient consideration to the fact that the claimant had black-outs and while Mr Shaw raised the question of the hospital records it would appear that the Tribunal while it might have had access to them did not base its decision on the records, but seemed to base its decision on Dr R…'s opinion.

12.	I allow the appeal because no explanation or reason was given for restricting the period of the care component to two years and also no consideration was given by the Tribunal to the fact that claimant could walk only 400 yards in a period of 20 minutes and the evidence from claimant was that even when he walked 25 yards he was breathless.  It is difficult to see where the Tribunal found the evidence to support its findings of claimant's walking ability.

13.	I granted leave to appeal and both parties having consented treating the application as the appeal.  I allow the appeal and refer the matter back to be reheard by a differently constituted DAT and that Tribunal shall consider the reasons why I set aside the previous decision and also its approach to medical records.

	(Signed):  C C G McNally

	COMMISSIONER

	18 January 1995