Decision No: C27/97(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

Appeal to the Social Security Commissioner
on a question of law from the decision of
Dungannon Disability Appeal Tribunal
dated 28 January 1997

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant against a decision of the Disability Appeal Tribunal given on 28 January 1997 to the effect that (1) the claimant is entitled to high rate mobility component from and including 16 February 1995 until 29 March 1996, and (2) the claimant is entitled to the middle rate care component of disability living allowance from and including 16 February 1995 to 29 March 1996 and the low rate care component of disability living allowance from and including 30 March 1996 for life.  Leave to appeal was granted by a Social Security Commissioner on 11 June 1997.

2.	This case has a long history.  A Disability Appeal Tribunal hearing was held on 9 November 1995 and it was decided that the claimant did not satisfy the conditions of entitlement for an award of the higher rate of the mobility component and the middle rate of the care component from 30 March 1995 to 29 March 1996.  Instead the Tribunal awarded the lowest rate of the care component in respect of the main meal test from and including 30 March 1995.  On 19 November 1996 a Commissioner decided that the Tribunal of 9 November 1995 had erred in law in reaching its decision.  The Commissioner decided that the Tribunal had misdirected itself in respect of both the qualifying period and the prospective test and that he would have expected findings and reasons to indicate why the Tribunal decided to make a life award of the lower rate of the care component.  Accordingly the Commissioner referred the case to be redetermined by a differently constituted Tribunal.  The decision of this new Tribunal is the decision presently under appeal.

3.	I held an oral hearing at which the claimant, who was present, was represented by Mr Barry McVeigh of the Northern Ireland Association of Citizen Advice Bureaux.  The Adjudication Officer was represented by Mr G L Shaw.  

4.	At the hearing Mr Shaw pointed out that, in effect, I was seised of an appeal from the Tribunal concerning the claimant's rights to disability living allowance.  The present practise of Tribunals using two separate forms of decision for both the care and mobility components in disability living allowance appeals obscures the legal reality that disability living allowance is one single benefit, though consisting of two components (section 71(1) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992).  This can cause confusion, as it did in this case, where both decisions, as typed up, refer to the mobility component as being the subject matter of the decisions, even though one decision, on close perusal, referred to the care component.  The confusion was made all the greater as the record of proceedings and the findings of fact in each decision form were identical, leading to the irresistible conclusion that there was in fact only one actual hearing, even though the Tribunal came to two separate decisions set out in two separate decision forms.  A decision on a single decision form in this case would have obviated these difficulties.  

5.	The facts are that the claimant on 30 December 1994 underwent an amputation of his left leg above the knee and was fitted with an artificial leg in or about the end of January or the beginning of February 1995.  The Tribunal, on appeal, in respect of the mobility component held that he was entitled to high rate mobility component from and including 16 February 1995 until 29 March 1996.  The reasons for the Tribunal's decision in relation to the mobility component were as follows:-

		"Already awarded high rate mobility component 30 March 1995 -
		29 March 1996.  We believe an earlier start date appropriate 
		that is from emergency admission on 17 November 1994.  Allowing
		for the 3 month award runs from 16 February 1995.  In other 
		respects, and noting award not in dispute the Tribunal decided
		not to otherwise interfere with same.  We did not believe it
		appropriate to extend award beyond 29 March 1996.  At the last
		hearing appellant admitted that he had adjusted to artificial
		limb by end of April 1996 and they noted no evidence of falls;
		Also he could walk using a walking stick as opposed to crutches.
		Doctor H… in report dated 29 April 1995 confirmed appellant
		could weight bear on both lower limbs. On self assessment form     
		appellant referred to 25yds in 3/4 minutes.  Doctor M…, South
		Tyrone Hospital, on 7 November 1996 referred to walking 100 yards
		on flat ground.
		Today appellant spoke of 40/50 yards in 3/4 minutes, resting for
		1/2 minute and then could do the same again.  On balance of
		probabilities the Tribunal is of the opinion that by 30 March 1996
		appellant had adjusted to his artificial limb and could walk a
		reasonable distance in reasonable time, speed and manner without
		severe discomfort.  We believe that none of the criteria is satisfied
		to render appellant virtually unable to walk from 30 March 1996.
		We also believe that the appellant could, from then, take advantage
		of his walking faculty on unfamiliar routes outdoors, without
		guidance/supervision, most of the time.  In relation to falls -
		see care component.  Also low rate mobility component is not to
		avoid danger."

6.	The Tribunal, on appeal, in respect of the care component held that he was entitled to the middle rate care component from and including 16 February 1995 to 29 March 1996, and to the low rate care component from and including 30 March 1996 for life.  The reasons for the decision were as follows:-

		"Tribunal decided not to interfere with award already made in respect
		of 30 March 1995-29 March 1996.  However, we believe that frequent
		attention would have been needed with bodily functions following
		every hospital attendance on 17 November 1994 and accordingly
		allowing for 3 month qualifying period the start date of award
		is now 16 February 1995.  By 30 March 1996 the Tribunal is of the 
		opinion that the only help required was as noted per out findings.
		We are of the opinion that this would constitute help for a 
		significant portion of the day but not frequent attention with
		bodily functions.  We also accept that standing, holding/lifting
		saucepans would be a difficulty in preparing a cooked main meal.
		Weighing up all the evidence including that recorded at hearing
		on 9 November 1995 the Tribunal, on balance of probabilities,
		is of the opinion that low rate care component appropriate 
		from 30 March 1996 and award for life.  We do not have any
		evidence to suggest appellant's condition will significantly 
		improve and indeed we note recent claudication in other leg
		and angina.  Although hypo(s) at night was mentioned, given the
		frequency of same as per our findings and duration 15-20 minutes,
		the Tribunal is of the opinion that same does not require prolonged/
		repeated attention with bodily functions.  Further, it is not
		necessary for someone to be awake for prolonged periods/frequent
		intervals to avoid substantial danger.  We also note appellant
		does get warning - sweating - and we believe that it would be
		reasonable to have milk and biscuits by the bedside or chocolate.
		Appellant mentioned falls but in the context of different ground
		levels.  With care the panel if of the opinion that appellant
		can avoid risk of falls and that there is no risk of substantial
		danger such as to require continual supervision."

7.	The findings of fact material to the Tribunal's decision were as follows:-

		"1.	Admitted to Belfast City Hospital as an emergency on 
			17 November 1994 due to sudden pain in left calf.

		 2.	On 21 December 1994 admitted to Belfast City Hospital and had
			left leg above knee amputation 30 December 1994 and then
			discharged to Musgrave Park Hospital on 5 January 1995.

		 3.	Had femoral popliteus arterial by-pass on right leg 1988 and
			on left leg in 1990 with further surgery in 1991 and 1992.

		 4.	Insulin dependant diabetic - under control.  Does have some
			hypo(s) during the night causing sweating but not loss of
			consciousness.  Between 2-3 mornings tends to experience
			hypo(s).  Can occur 2/3 times week, 1 week and some weeks
			none.  Takes 2-4 digestive biscuits and glass of milk.  Admits
			could take some chocolate.  Although appellant does not keep
			biscuits/milk by the bed.  Tribunal is of the opinion that it
			would not be unreasonable to do so.  Monitors during the 
			day and can avoid hypo(s).

		 5.	Department award middle rate care component 30 March 1995-
			29 March 1996.  Tribunal find that 3 month qualifying period
			runs from 17 November 1994 when admitted to Belfast City
			Hospital.  We accept that frequent attention with bodily
			functions would have been needed from that date of operation
			and the following operation to adjust to loss of part of
			lower limb.  Department did not dispute award running to 
			29 March 1996 and Tribunal decided not to interfere with end
			date for mobility rate award.  From 30 March 1996 Tribunal 
			accepts appellant's evidence that help needed putting on socks,
			limb, taking 15 minutes or so in morning.  Also someone to help
			him coming downstairs.  Has downstairs toilet to avoid having
			to use stairs during day.

		6.	From October 1996 some angina which is relieved with inhaler/
			spray.  Some recent claudication right leg.

		7.	Appellant works, initially part time following amputation but
			has resume full time employment again as a Civil Servant -
			seated job.  Drives automatic car.

		8.	High rate mobility component awarded 30 March 1995 - 29 March
			1996.  Tribunal of opinion that appellant would have been
			virtually unable to walk following emergency admission to
			Belfast City Hospital 17 November 1994.  Accordingly, start
			date of award should be from 16 February 1995 allowing for
			3 qualifying months.  From 30 March 1996 Tribunal believes
			that appellant could walk a reasonable distance in reasonable
			time, speed and manner without severe disablement.  The 
			exertion of walking would not cause danger to life or serious
			deterioration to health.

		9.	Can take advantage of walking faculty when outdoors on 
			unfamiliar routes without guidance/supervision, most of the
			time.  

		10.	Cannot prepare a cooked main meal for himself if he has the
			ingredients.

		11.	Mentally competent, aware of dangers, not aggressive/
			destructive, does not wander.  Not prone to fits blackouts,
			seizures or such likes."

	These findings of fact related to both the care and the mobility component.  

8.	The claimant appealed this decision on the ground that there had been a failure to state adequate findings of fact and reasons for the decision.  In particular the claimant relied on the fact that whilst the Tribunal was furnished with reports from Mr H…, Consultant Surgeon, dated 24 January 1997, and Dr H…, Consultant Physician, dated 27 July 1997, on the condition of the claimant, the matters mentioned in the reports were not addressed in the Tribunal's findings of fact.  Consequently it was argued on behalf of the claimant that the Tribunal's decision neither accepted or rejected the evidence contained in the reports.  If the Tribunal is deemed to have rejected the findings of fact, no reasons were given for the rejection.

9.	Mr Shaw in his written submission dated 27 June 1997 submitted as follows:-

		"The issue before the tribunal was the claim dated 25 January 1995.
		The appeal is made on the basis that the tribunal's record of
		proceedings does not make it clear whether the evidence from the
		consultants Mr. H… and Mr. H… was accepted or rejected.

		I submit that the only point in the two letters in question which
		would have merited specific mention was the reference by Mr H…
		to discomfort on walking.  I concede that this probably did merit
		mention, as it undoubtedly was in Mr F... 's favour, and its omission
		tends to give the impression that the tribunal only took account
		of the evidence which was unfavourable to the claimant.  As severe
		discomfort is central to the argument in the mobility component,
		it would be an essential part of the tribunal's function to determine
		whether they accepted that there was discomfort, and if so whether
		it amounted to severe discomfort.

		All this is closely related to the need to make findings as to the
		factors in regulation 12(1)(a) of the Disability Living Allowance
		regulations.  The tribunal chairperson did not record specific
		findings, merely recording "a reasonable distance in reasonable
		time, speed and manner without severe discomfort".  While it has
		been held that findings are not required in every case (see
		CDLA/2554/95 - para 11) the Commissioner may wish to consider
		whether in this case the findings are adequate."

10.	It was made clear by Mr McVeigh at the hearing he was only submitting that the Tribunal's decision in relation to the mobility component was in error.  

11.	It is evident that the Tribunal did not take into account the evidence of the two Consultants in favour of the claimant.  No grounds were given for discounting this evidence.  It seems to me that a Tribunal should not come to a conclusion inconsistent with such evidence without giving good reason.  To emphasise the relevance of these reports I quote them in full.  Mr H... 's report dated 24 January 1997 states as follows:-

		"Mr F...  has been a patient at the Belfast City Hospital since 1988.
		He originally attended Mr R… C… and underwent arterial 
		surgery in June 1988.  He has continued for regular review since
		that time and in 1992 had to have arterial surgery to the left leg.
		Unfortunately the bypass in the left leg failed in late 1994 and 
		Mr F...  subsequently had an above knee amputation.  When he was
		reviewed at the Hospital after his amputation it was noticed that
		his right leg was extremely swollen and I think it is most likely
		that he had an extensive deep venous thrombosis.  By the time he
		was reviewed at the hospital, the swelling in his leg had been
		present for many weeks and I did not think it was worthwhile
		investigating or treating this.  I did however arrange for him
		to have compression stockings to attempt to reduce the oedema in 
		the leg.  The arterial supply in the right leg seems to be fairly
		healthy at this time and Mr F...  reports ache and pain in the leg
		on walking.  It seems most likely that this ache and pain is due to 
		venous claudication.

		There is no curative treatment for venous claudication and the vast
		majority of patients are managed conservatively.  Hence I have 
		not arranged any further investigations at this stage.

		I write this letter because it seems to me that anyone who has had
		an above knee amputation on one side and continues to have discomfort
		in the right leg on walking must be eligible for some kind of 
		living assistance whether it be expenses or assistance with
		transport.  Without knowing the bureaucratic mechanisms of the
		disability living allowance I would ask that strong consideration
		be given to assisting Mr F...  as I do feel he has continuing 
		problems.
		Yours faithfully
		R J H...  MD FRCS
		CONSULTANT SURGEON"

	Dr H…'s report states as follows:-

		"This gentleman has had diabetes mellitus since 1972.

		Secondary to this condition he has developed widespread vascular
		disease.

		Owing to peripheral vascular disease he had a left knee amputation
		in December 1994.  He now has a prosthesis but there have been
		considerable problems owing to pain and discomfort at the stump
		and this has limited his mobility quite considerably.  You will
		be well aware that an above knee prosthesis is considerably more
		difficult to use than a below knee prosthesis.

		He also has claudication affecting his right leg.  The consequence
		of the sum of these two problems affecting his legs is that his
		mobility is limited considerably.  This limitation of mobility is
		exacerbated by his having developed angina of effort (for which
		he is being treated with Elanatan LA).  His present exercise
		tolerance is limited to a maximum of 50 yards; owing to this it
		appears to me appropriate that he should be reinstated with 
		"an orange sticker".  When one, for example, takes his attending
		this Hospital, he is unable to walk from the conventional car
		park to the Diabetic Clinic or the Vascular Clinic owing to the
		problems outlined above.

		With respect to his diabetes, his impaired mobility means that he
		is no longer able to deal satisfactorily easily or safely with 
		hypoglycaemic attacks.  As a consequence of his improving his
		diabetic control he has more frequent (and occasionally more severe)
		hypoglycaemic attacks.  This problem has been particularly prevalent
		at night lately.

		Owing to these problems it appears to me that he fulfils the 
		necessary criteria for the "high rate" care component of disabled
		living allowance.
		If you wish to have any further information, please don't hesitate
		to contact me.  I am sure you will consider Mr F... 's appeal in the
		light of what I think must be extra information provided by me 
		about his situation.

		W… H… MD FRCP FRCPI FRCP(G)
		CONSULTANT PHYSICIAN"

12.	The legislation relating to the mobility component of disability living allowance provides that a person shall be entitled to the higher rate of the mobility component if they are unable or virtually unable to walk (Social Security Contributions and Benefits (Northern Ireland) Act 1992, section 73(1)(a)).  Regulations further provide that in determining whether a person is virtually unable to walk, consideration must be given to the distance, speed, time and manner of walking, and, only walking which can be achieved without severe discomfort can be taken into account.  (The Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992, regulation 12(1)).  There is no doubt that the claimant is not unable to walk but he has difficulties with walking.  Therefore the question to be decided in relation to the mobility component at the higher rate is whether he can be regarded either as virtually unable to walk.

13.	Mr McVeigh submitted that all the objective evidence pointed to a high degree of immobility.  Mr Shaw agreed with this assessment.  Many of the findings of the Tribunal confirm this.  However, the conclusion that the Tribunal came to, namely that it believed that the claimant could walk a reasonable distance in reasonable time, speed and manner without severe disablement from 30 March 1996 seems to be inconsistent with much of the rest of the evidence, which suggests that he is virtually unable to walk.

14.	It is clear from the medical reports that the claimant's condition is not likely to improve.  It was urged upon me by Mr McVeigh and Mr Shaw to take that into account when coming to a decision in this case.

15.	For the reasons stated I conclude that the decision of the Tribunal was erroneous in point of law in that it came to a conclusion inconsistent with the evidence.  Both Mr McVeigh and Mr Shaw submitted that this was an appropriate case for me to give the decision which I consider the Tribunal should have given.  In the circumstances I consider that it is appropriate so to do as, on the present state of the evidence, a Tribunal would be obliged to come to the conclusion that the claimant is entitled to high rate mobility component of the disability living allowance from and including 16 February 1995 for life.  Accordingly I exercise the power to set aside the decision of the Tribunal on the 

	mobility component and give the decision that the claimant is entitled to the allowance set out in the previous sentence.  This conclusion does not affect the decision of the Tribunal in relation to the care component.

(Signed):  J A H Martin

CHIEF COMMISSIONER

12 December 1997