Decision No: C37/97(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

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
Belfast Disability Appeal Tribunal
dated 5 July 1996

	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) that took away the lower rate care component of disability living allowance (DLA) which had been awarded to her by an Adjudication Officer from 23 March 1996 to 22 March 1999.

2.	Briefly the facts are that the claimant is a 33 year old married lady who applied for DLA because of low back injury to her spine in March 1994.  After having been examined by Medical Officers on behalf of the Department in April 1994 and in May 1994 the Adjudication Officer awarded her the higher rate mobility component and lower rate care component from 23 March 1994 to 22 March 1996.  A renewal claim was made in October 1995 when she was again examined by a Medical Practitioner on behalf of the Department.  As a result of that examination the mobility component was withdrawn but she was awarded the lower rate care component from 23 March 1996 to 22 March 1999.  She sought a review of that decision; the Adjudication Officer reviewed the decision but did not revise it, confirming her entitlement to the care component.  Against that decision claimant appealed to a DAT.   The Tribunal withdrew her award of care component.  The Tribunal gave reasons for its decision as:-

		"The diagnosis here is not of a severe physical or mental disablement
		and it would not explain the severity of her alleged attention,
		supervision and cooking needs.  In the absence of supporting medical
		evidence we reject her evidence and hold that she can prepare a 
		cooked main meal for herself and has not attention or supervision
		requirements."

	The Tribunal also held also that she was not entitled to the mobility component of DLA and gave reasons for its decision as:- 

		"Disability Living Allowance can only be awarded where an appellant 
		shows she is suffering from a severe mental or physical disablement". 

3.	In relation to both components, the Tribunal made the following findings of fact:-

		Care Component

		"We do not accept that cooking for one person involves the heavy
		lifting and carrying she alleges.  We do not accept on the available
		medical evidence (of an anterior angulation of sacrum and coccyx)
		that she cannot bend or reach.  She is able to prepare a cooked
		main meal for herself.

		Nor would the diagnosis by Dr F... explain her alleged attention
		needs and we reject them.  We believe she can if she wishes attend
		to all her bodily functions day and night unaided.  We do not 
		believe her evidence.  Although in the past she has had suicidal 
		thoughts, she would not harm herself because of the children and
		continual supervision day or night is not required.  We note 
		despite her alleged severe pain she has not gone back to the 
		pain clinic in 2 years and 5 months, pain which she alleges
		is not helped by maximum doses of painkillers.  The Examining
		Medical Practitioner found good spinal flexion, forward and lateral,
		and extension."

		Mobility Component

		"There is no medical evidence that this woman suffers from a severe
		mental or physical disablement.  She fell on her coccyx and badly
		bruised it on 19.3.92.  The radiograph's report which we accept as
		factual shows a normal lumbar spine and a (probably) congenital 
		arterial angulation of the coccyx, a common finding, which is not
		attributable to the accident and does not explain the alleged
		severity of her symptoms.  We cannot accept that she remains in
		severe discomfort despite taking strong painkillers and that she 
		can get no ease in any position.  This does not make medical sense.
		Nor does the evidence that the pain goes down the front and back
		of her legs.  This is certainly not sciatica.  We cannot therefore
		accept that her mobility is restricted as she alleges.  She can 
		walk a reasonable distance in a reasonable time and manner without
		severe discomfort because there is nothing physically to stop her 
		doing so or to explain any alleged need for guidance or supervision."

4.	Claimant sought leave to appeal and I arranged an oral hearing at which claimant was represented by Mr Millar of the Citizens Advice Bureau and the Adjudication Officer was represented by Mrs Gunning.

5.	Mr Millar said that his first grounds of appeal were that the Tribunal erred in that it breached the rules of natural justice.   This was because claimant went on on her own without her representative and felt that she was not in a position to properly state her case.  She was very nervous and felt she was disadvantaged.  He then drew attention to the fact that claimant could not walk, that the evidence was that claimant required a lot of help and assistance at all times and that she was in constant pain. He said that the Tribunal did not take account of the medical evidence and, in particular, the evidence of the Examining Medical Practitioner which the Tribunal appeared to ignore completely.

6.	Mrs Gunning said that there was no breach or even an apparent breach of the rules of natural justice.  She said the Tribunal asked claimant if she agreed to go ahead, and explained to her that she could lose the benefit which she had.  Claimant accepted that situation.  She said that the Tribunal did not accept claimant's evidence about her condition but that the Examining Medical Practitioner (EMP) who examined her recorded that her complaints were 75% physical.  It would appear that the Tribunal did not take any account of her psychological needs and limited themselves to considering the risk of suicide but did not consider the encouragement, support and reassurance which she would require.  She drew attention to the Northern Ireland Chief Commissioner's decision C69/96(DLA) which set out the correct approach relating to findings in this type of case.  The decision requires the Tribunal firstly to find whether or not there is a disability and then determine the extent of it.

7.	I have considered all that has been said and I have read all the documents in this case. I have considered the EMP's report in which claimant's disability was 75% physical, although she had a tendency to be depressed.  The doctor also recorded that she was referred to the pain clinic in the Ulster Hospital and she had to stop visiting the clinic because she was pregnant.  She lost her baby and a year ago she was assessed for surgery but the advice was that surgery was not advisable.  At the time of the examination which was in December 1995 she was waiting for a referral back to the pain clinic.  The EMP also stated that she required help to cook a main meal, help with bathing and that she was not capable of maintaining a reasonable standard of personal hygiene and nutrition without supervision.  He recorded her needs for attention as requiring help when coping with hot pans and when using a cooker.  He diagnosed her condition as "injury to coccyx" and "sciatica left leg".  I have also considered the report which the Tribunal appeared to rely on, which is the radiographer's report of 5 January 1993.  This was given (it would appear) for the purposes of a common-law action for damages and then relates only to the effect of the accident.  I say this because Dr F... finishes up by saying there are no radiographic changes that could be attributed to Mrs G...'s accident.  It is clear that this report which is now 4 years old, related to what effect the accident had upon claimant and not to what her condition was generally.  

8.	I find it difficult to understand how the Tribunal completely rejected the report of the Examining Medical Practitioner.  It made a finding "This is certainly not sciatica."  despite the EMP making a finding that it was.  I find it difficult to see why the Tribunal put such faith in the radiographer's report which was merely a diagnosis of the effect of claimant's accident.  There is absolutely no mention in his report of pain, yet the Tribunal used that report to reject claimant's evidence.  Also, it made reference to the fact that despite her alleged severe pain she had not gone back to the pain clinic in 2 years and 5 months, when the EMP recorded that she was "waiting for a referral back to the pain clinic".  

9.	I am satisfied that the Tribunal did not properly consider the medical reports, nor did it properly consider whether or not the claimant needed encouragement or support, comfort, reassurance, motivation and prompting enabling the psychological aspect of her complaint to be conclusively disposed of.  I think that in this type of a situation Tribunals would be well advised to consider the recent decision of a Northern Ireland Chief Commissioner, C69/96(DLA) which sets out the correct approach in disability cases.  It states that it is first necessary to determine whether the claimant is disabled and if the answer is in the affirmative, then the severity of the disability is to be determined.  

10.	At the hearing I granted leave to appeal and both parties having consented to me treating the application as the appeal I propose to do so.  I allow the appeal for the reasons stated above and set aside the decision of the Tribunal.  I reluctantly refer the matter back to be reheard by a differently constituted DAT rather than give the decision which the Tribunal should have given.   This is because I think the claimant should have an opportunity to have her medical records available to the Tribunal and representation which she unfortunately did not have at the first hearing.  Also if the Tribunal is going to withdraw a benefit which is already in place, it must set out clearly what evidence it considers relevant to overturn the Adjudication Officer's opinion.

(Signed):  C C G McNally

COMMISSIONER

4 August 1997