Decision No:  C60/97(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
Armagh Disability Appeal Tribunal
dated 30 July 1997

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant against the decision of a Disability Appeal Tribunal given on 30 July 1997 to the effect that (1) the claimant is not entitled to either of the rates of the mobility component of Disability Living Allowance from and including 14 November 1996, and (2) the claimant is entitled to the low rate care component of Disability Living Allowance from 14 November 1996 to 13 November 1999.  Leave to appeal was granted to the claimant by the Chairman of the Tribunal on 3 October 1997.  The Chairman also purported to grant leave to appeal to the Adjudication Officer some time later on the same day.  It was agreed by the parties that the claimant would be treated as the appellant in this case, although the Adjudication Officer is entitled to bring all points before a Commissioner that would have been brought if the Adjudication Officer was the appellant.

2.	The claimant originally made a claim for Disability Living Allowance on 22 February 1996, stating in particular that she suffered from arthritis and sciatica.  After medical reports were completed by the claimant's General Practitioner, an Adjudication Officer on 10 May 1996 awarded the claimant the higher rate mobility component of Disability Living Allowance from and including 22 February 1996.  The claimant requested a review on 14 November 1996, and, after further self-assessment forms were received and after an examination by an Examining Medical Practitioner, an Adjudication Officer on 27 January 1997, having established that there were grounds to review the decision of 10 May 1996, decided that he was unable to revise the decision so as to award the care component.  A further request for review was received on 19 February 1997 and, after the completion of a further report by the claimant's General Practitioner, a different Adjudication Officer on 21 April 1997 reviewed the decision of 27 January 1997 but did not revise it.  The claimant then appealed to a Disability Appeal Tribunal in an attempt to establish that she was entitled to the care component. 

3.	On appeal the unanimous decision of the Tribunal in relation to the care component was as follows:-

		"Appeal allowed.  We are satisfied that there are grounds to review
		the decision dated 10 May 1996 and we have reviewed it to award the
		lowest rate of the care component from 14 November 1996 (date of 
		request for review) to 13 November 1999.  We are satisfied that the
		conditions for this award existed at least 3 months prior to 
		14 November 1996."

	The Tribunal made the following findings of fact material to its decision:-

		"a.	Both claimant and the Adjudication Officer are in agreement
			that there are grounds to review the decision dated 10 May
			1996 in which claimant was awarded the higher rate of mobility
			but disallowed any rate of care.  We accept claimant's evidence
			that her condition has deteriorated as giving a ground for
			review.

		b.	We accept the report of the Examining Medical Practitioner 
			dated 16 December 1996 as being a correct assessment of her
			disabilities at that time and we adopt the report as part of
			these findings.  Having carefully studied her General 
			Practitioner record we find evidence of a deterioration in
			her condition between the date of her original application
			(22 February 1996) and the present time in that she was sent
			for a course of physiotherapy but she did not complete the
			course.  We can find no other significant evidence of a 
			deterioration and find that her deterioration has not been
			sufficient to invalidate the findings of the Examining 
			Medical Practitioner which are applicable from 22 February
			1996 to the present.

		c.	We find that the opinions of the Examining Medical Practitioner
			regarding claimant's care needs as set out in Part 7 of the 
			report are, very marginally, sufficient to bring her within the
			criteria for the lowest rate of the care component but, as it is
			clear from her records that her condition has not been fully
			investigated we limit the extent of the award to a total of
			3 years."

	The Tribunal gave the following reasons for its decision:-

		"a.	The Examining Medical Practitioner report seems to us to be a
			document which has been thoughtfully prepared following a
			thorough examination.  On claimant's own evidence the 
			Examining Medical Practitioner was with her for two hours and
			during that time he had a full opportunity to carry out a 
			clinical examination and observe her in her own home.  A
			change in claimant's condition to a degree which would have
			changed the Examining Medical Practitioner's conclusions 
			significantly would certainly have left some clear traces
			in her medical records but we have been unable to find any.

		b.	Having accepted the Examining Medical Practitioner report as
			being accurate over all relevant times we have decided that
			it just, and only just, covers the lowest rate of care but
			certainly it does not indicate any care or supervision needs
			to satisfy any of the care or supervision conditions for
			either of the higher rates.

		c.	Claimant has never seen a consultant with regard to her sciatica
			and osteoarthritis and it may be that more can be done for her
			so we are limiting the extent of the award to a total of 3 years."

4.	The unanimous decision of the Tribunal in relation to the mobility component was as follows:-

		"Appeal disallowed.  We are satisfied that we have grounds to 
		review the decision dated 10 May 1996 and we have reviewed it and
		revised it to May 1996 and we have reviewed it and revised it to  
		disallow claimant either of the rates of the mobility component    
		of Disability Living Allowance from and including 14 November 1996
		(the date of the request for the review)."

	The Tribunal made the following findings of fact material to its decision:-

		"a.	Both claimant and the Adjudication Officer are in agreement that
			there are grounds to review the decision dated 10 May 1996 in
			which claimant was awarded the higher rate of mobility but 
			disallowed any rate of care.  We accept claimant's evidence
			that her condition has deteriorated as giving a ground for
			review.

		b.	We accept the report of the Examining Medical Practitioner
			dated 16 December 1996 as being a correct assessment of her
			disabilities at that time and we adopt the report as part of
			these findings.  Having carefully studied her General 
			Practitioner record we find evidence of a deterioration in
			her condition between the date of her original application
			(22 February 1996) and the present time in that she was sent
			for a course of physiotherapy but she did not complete the
			course.  We can find no other significant evidence of a 
			deterioration and find that her deterioration has not been
			sufficient to invalidate the findings of the Examining
			Medical Practitioner which are applicable from 22 February
			1996 to the present.

		c.	We find that the degree of walking ability without severe
			discomfort which the Examining Medical Practitioner has stated
			as his opinion in Part 5 of his report is such that claimant
			is not unable to walk or virtually unable to walk and we 
			further find that she does not require guidance or supervision
			whilst walking out of doors most of the time.  Mr Carson has
			argued that the exertion required to walk could cause a 
			deterioration in her health but we can find no medical 
			evidence to support this and find that it would not do so."

	(It is noted that sub-paragraphs (a) and (b) are identical to the equivalent paragraphs in relation to the care component).

	The Tribunal gave the following reasons for its decision in relation to the mobility component:-

		"a.	The Examining Medical Practitioner report seems to us to be a 
			document which has been thoughtfully prepared following a 
			thorough examination.  On claimant's own evidence the
			Examining Medical Practitioner was with her for two hours
			and during that time he had a full opportunity to carry out
			a clinical examination and observe her in her own home.
			A change in claimant's condition to a degree which would 
			have changed the Examining Medical Practitioner's conclusions
			significantly would certainly have left some clear traces in
			her medical record but we have been unable to find any.

		b.	Having decided that the Examining Medical Practitioner report
			is accurate as to claimant's condition at all relevant times
			we have decided that we must look at the award in respect
			of the mobility component.

		c.	In our opinion a person who can walk 40 yards in 80 seconds
			in a reasonable manner cannot be said to be virtually unable
			to walk and in an answer which she gave to the Examining 
			Medical Practitioner claimant indicated that she could walk
			for 6 minutes (although with different distance) which seems
			to us to be a reasonable time of walking ability.  Therefore
			having regard to the guidance given in Commissioner's decision
			A97/95DLA which approves (indirectly) a finding that 40 yards
			did not meet the criteria we have decided to disallow the 
			award made by the Adjudication Officer as not being justified
			by the evidence."

	(It is noted that sub-paragraph (a) is identical to the equivalent paragraph in relation to the care component).

5.	The net effect of the Tribunal's decision is that, whilst she succeeded in obtaining the lowest rate of the care component on appeal, she lost entirely her right to the higher rate mobility component.  This was in spite of the fact that the Adjudication Officer in his written submission had specifically stated to the Tribunal that, as the appeal did not expressly raise the question of entitlement to, or the rate or period of the mobility component award, the Tribunal should not consider that award; although the Adjudication Officer also did point out that this would not be the case should information become available to the Tribunal which would give it reasonable grounds for believing that entitlement to, or the rate or period of the award of the mobility component ought not to continue.  However it is entirely clear that the Presenting Officer before the Tribunal never submitted that the mobility component was in issue before the Tribunal.

6.	The grounds on which the claimant sought leave to appeal to a Commissioner were as follows:-

		"The Chairman did not advise me that I could ask for an adjournment
		and write to the Adjudication Officer stating I was happy 
		and satisfied with the mobility component in which case mine would
		not have been a grounds case.  The Chairman went to great pains to
		advise me of the Social Security law in relation to my claim for
		review.  He did not advise me of the alternative approach I might
		take.  I believe this Tribunal's behaviour breached the rules of
		natural justice."

	The Chairman granted leave to the claimant on these grounds.

7.	As stated in paragraph 1 of this decision the Adjudication Officer purportedly was also granted leave to appeal.  The grounds on which Mr Shaw, on behalf of the Adjudication Officer, submitted that the Tribunal had erred in law were as follows:-

		"Mobility component

		1.  The tribunal erred in point of law by deciding to consider the
		award of the mobility component for life made by the adjudication
		officer on 10 May 1996.  This award could only be considered by the
		tribunal if information was available to the tribunal giving it
		reasonable grounds for believing that entitlement to that component,
		or the higher rate of that component, ought not to continue.

		2.  If the tribunal did have reasonable grounds for believing that
		entitlement to the mobility component at the higher rate for life
		ought not to continue the tribunal erred in law because the chairman
		failed to record relevant findings in relation to the decision to
		consider the mobility component.  In C21/96(DLA) it was held that
		the onus is on the tribunal, it has a heavy duty to discharge and
		can only do so by setting out in precise terms the evidence on
		which it based its opinion.

		3.  The tribunal erred in law in their reliance on decision 
		A97/95(DLA).  That decision of the Northern Ireland Chief 
		Commissioner approves of the Great Britain decision CM/379/89.
		In each case the Commissioner refused to disturb disallowances
		by tribunals.  In CM/379/89 the Commissioner also points out that
		the decision to make an award is basically one for the adjudicating
		authority.  The tribunal appear to have regarded this decision as
		authority for the proposition that the adjudication officer's
		award was wrong.

		Mobility component - ground for review

		4.  The tribunal erred in law by failing to identify a ground on
		which the award of the mobility component at the higher rate made
		by the adjudication officer on 10 May 1996 was reviewed.  
		Alternatively, if the tribunal found that one of the grounds in
		S28(2) of the Social Security Administration (NI) Act 1992 was 
		satisfied, the tribunal erred in law because the chairman failed
		to record findings as to which ground was satisfied together with
		the reasons for its finding.

		Care component

		5.  The tribunal erred by failing to make proper findings as to the
		date of deterioration.  Alternatively, the tribunal erred because
		the tribunal chairman failed to record the relevant findings and the
		associated reasons.

		6.  The tribunal erred in failing to make findings in relation to the 
		conditions in S72(1)(b)(ii) of the Social Security Contributions
		and Benefits (NI) Act 1992 (continual supervision throughout the
		day in order to avoid substantial danger to himself or others)
		in relation to the risk of falling; or alternatively because the
		chairman failed to record findings and associated reasons in
		relation to S72(1)(b)(ii) and the risk of falling.

		7.  The tribunal erred because the chairman failed to record findings
		in relation to the lowest rate of the care component (S72(1)(a)).  
		The parties are left not knowing whether the tribunal awarded
		entitlement to this component by virtue of both of the conditions
		in S72(1)(a) or only one of those conditions, and if so, which
		one is considered to be satisfied.

		8.  The tribunal erred in failing to make findings in relation to
		night requirements (S72(1)(c)).  There was evidence of such 
		requirements in part 7 (page 18) of the report by the Examining
		Medical Practitioner which was adopted by the tribunal as part 
		of their findings.

		9.  The tribunal made a decision based on irrelevant evidence in
		deciding not to treat the claim as made for an indefinite period
		and make an award for an indefinite period.  Regulation 17(6) of
		the Social Security (Claims and Payments) (NI) Regulations 1987
		refers.  The Examining Medical Practitioner's report, which was
		adopted as the findings of the tribunal, shows that the award is
		based on conditions which are either chronic or progressive.  The
		outcome of future investigations is an unknown quantity and can
		only be relevant if and when a change in care or mobility
		requirements result."

	In the circumstances I consider it appropriate to treat these observations if they were proper grounds of appeal before me in the present case.  

8.	I directed an oral hearing at which the claimant was represented by Mr M L Carson of UNISON and the Adjudication Officer was represented by Mr G L Shaw.

9.	Mr Carson submitted that it was particularly inappropriate for the Tribunal to remove the award of mobility component in circumstances where the Adjudication Officer was not alleging that such an award was in issue.  Furthermore he submitted that the claimant was satisfied with the Adjudication Officer's award in relation to mobility component and had not wished to put it in issue before the Appeal Tribunal.  Otherwise he relied on the submissions put forward by Mr Shaw set out at paragraph 7.

10.	Mr Shaw expanded on his written submissions and in particular emphasised paragraph 4 of those submissions.  Mr Shaw submitted that, as the Adjudication Officer had no reason to review the decision of the Adjudication Officer in relation to the mobility component, the Tribunal also was not permitted to consider the mobility component.  Relying on the provisions of section 28(2) of the Social Security Administration (Northern Ireland) Act 1992 Mr Shaw submitted that the Adjudication Officer only purported to review the decision in relation to the care component and did not review the decision in relation to the mobility component as there was no reason so to do.  Accordingly, if the Adjudication Officer was not justified in considering the mobility component, Mr Shaw submitted that the Appeal Tribunal should not have considered it either.  

11.	However, it seems to me, as the care component and the mobility component are part of the same benefit, that an Adjudication Officer in appropriate circumstances would have grounds to reconsider both components of Disability Living Allowance.  It must be remembered that Parliament has given specific protection to claimants, whose claims are being reviewed under section 28, by the provisions of section 30(4) which restrict the Adjudication Officer considering an award of a certain component unless certain conditions are fulfilled.  Accordingly I conclude that the Tribunal did not err in law by failing to identify a ground on which the award of the mobility component at the higher rate made by the Adjudication Officer on 10 May 1996 was reviewed.  It seems to me that the Adjudication Officer had jurisdiction in appropriate circumstances to review both components.  As such the Tribunal on appeal potentially also has such a jurisdiction.  

12.	However, as Mr Shaw pointed out at paragraph 1 of his legal submissions and in his oral argument, the Tribunal is still bound by the provisions of section 31(6) of the Act, which states:-

		"(6)	The tribunal shall not consider -

		 (a)	a person's entitlement to a component which has been awarded
			for life;

		 (b)	the rate of a component so awarded; or
		
		 (c)	the period for which a component has been so awarded,

		unless -

			(i)	the appeal expressly raises that question; or

			(ii)	information is available to the tribunal which gives it
				reasonable grounds for believing that entitlement to the
				component, or entitlement to it at the rate awarded or for
				that period, ought not to continue."

13.	It is difficult to be certain what the meaning of Section 31(6)(i) is (whether "the appeal expressly raises that question") but in this case it would seem that the only potential relevance of the sub-section is connected with Section 31(6)(ii) (whether "information is available to the Tribunal which gives it reasonable grounds for believing that entitlement to the component, or entitlement to it at the rate awarded or for that period, ought not to continue").

14.	Mr Commissioner McNally in C21/96(DLA) at paragraph 13, has set out the proper approach to be taken by a Tribunal in circumstances such as the present:-

		"It is clear that there is a statutory prohibition on a Tribunal
		considering a person's entitlement to a component which has been
		awarded for life, unless information is available to the Tribunal
		which gives it reasonable grounds to believe that entitlement ought
		not to continue.  So when a Tribunal takes upon itself to look at a
		component which is not the subject of an appeal it also takes upon
		itself the heavy responsibility of discharging the onus of proof
		that it has reasonable grounds to do so.  It is not sufficient for
		a Tribunal to say that it had information to raise the issue and as 
		the Great Britain Commissioner said in CSDLA/251/94 
		"If the Tribunal are to consider entitlement under the second 
		statutory exception it would be necessary for them to demonstrate 
		that they had information available to them giving them reasonable
		grounds to believe that that entitlement ought not to continue.
		If they took such a view it would be necessary for them to make
		findings of fact in respect of the information they were relying
		upon in coming to their belief".  He then went on to say that in
		these circumstances where a Tribunal is considering whether a 
		claimant is virtually unable to walk or not, a Tribunal would be 
		required to demonstrate by recording findings of fact, the 
		information available to them which gave them reasonable grounds
		to believe that entitlement to the higher rate ought not to 
		continue.  This would involve recording the basis upon which the
		original award was made and setting out the evidence which bears
		to demonstrate that the conditions are not satisfied and that 
		entitlement ought not to continue. ..."

15.	The only relevant finding recorded by the Chairman is set out paragraph (c) of the findings of fact material to the decision in relation to the mobility component (set out at paragraph 4 herein) which refers to Part 5 of the Examining Medical Practitioner's report.  Part 5 is difficult to read but it clearly states, in relation to walking, that after 20 yards she suffers from severe pain.
16.	The Tribunal in this case has failed to demonstrate, by recording findings of fact, the information available to it which gave it reasonable grounds to believe that entitlement to any rate of mobility component ought not to continue.  In addition I am far from satisfied that the evidence set out in the Tribunal's decision has shown that the conditions for the award are not satisfied and that entitlement ought not to continue.  Accordingly I hold that the Tribunal erred in law in the circumstances.

17.	Mr Shaw also submitted that the Tribunal erred in law in its reliance on decision A97/95(DLA).  It seems that the Tribunal considered that this decision decided that if a person can walk 40 yards he can never be eligible for an award of mobility component.  If this is so the Tribunal in my view was incorrect.  The distance is only one factor that the adjudicating authorities have to take into account when assessing whether or not a person is virtually unable to walk (see section 73(1)(a) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992).  Many other factors are relevant, including the level of discomfort, how long it takes discomfort to develop, speed and method of progression and whether or not rests are taken, either sitting down or standing up.  In any event I consider that, if the Tribunal had been permitted to reconsider the mobility component, it was incorrect to rely on the decision A97/95(DLA) to support the proposition that it appears to suggest that case decided.  Indeed in that case the Chief Commissioner stated specifically as follows:-

		"I do not consider that there is anything to suggest that the 
		Tribunal erred in law in holding that, although the claimant
		could only progress 75 yards before the onset of severe 
		discomfort, he was nevertheless not virtually unable to walk."

	As I read this decision it does not suggest that Tribunals should apply any particular distance as a rule of thumb in deciding whether a person is virtually unable to walk or not because of the physical disability.

18.	In relation to the care component, Mr Shaw made certain submissions which are set out at paragraph 7 herein.   While it is correct to say that Mr Carson was not taking any point about the award of the care component on behalf of the claimant, it seems appropriate for me to deal with the issues that arise.  It is important that a Tribunal makes appropriate findings when it decides that a claimant is entitled to any component of Disability Living Allowance.  The decision does not make it clear the basis on which this award was made.  Section 72(1) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 states:-

		"72.-(1)  Subject to the provisions of this Act, a person shall
		be entitled to the care component of a disability living 
		allowance for any period throughout which -

			(a)	he is so severely disabled physically or mentally
				that -

				(i)  he requires in connection with his bodily
				functions attention from another person for a 
				significant portion of the day (whether during
				a single period or a number of periods); or

				(ii)  he cannot prepare a main meal for himself
				if he has the ingredients;

			(b)	he is so severely disabled physically or mentally
				that, by day, he requires from another person -

				(i)  frequent attention throughout the day in 
				connection with his bodily functions; or

				(ii)  continual supervision throughout the day
				in order to avoid substantial danger to himself
				or others; or

			(c)	he is so severely disabled physically or mentally
				that, at night, -

				(i)  he requires from another person prolonged or
				repeated attention in connection with his bodily
				functions; or

				(ii)  in order to avoid substantial danger to
				himself or others he requires another person to
				be awake for a prolonged period or at frequent
				intervals for the purpose of watching over him."

19.	The lowest rate of the care component is paid to a person who satisfies only the condition of Section 72(1)(a), the middle rate is paid to a person who satisfies the conditions of either Section 72(1)(b) or (c) and the highest rate is payable to a person who satisfies the conditions of both Section 72(1)(b) and (c) (see Section 72(4)).  By finding that the claimant was only entitled to the lowest rate of the care component, the Tribunal, by implication, has found that the claimant does not satisfy the conditions set out in Section 72(1)(b) and (c) for the middle and highest rate.  However, as Mr Shaw pointed out at paragraphs 6 and 8 of his submissions (set out at paragraph 7 herein) the Tribunal failed to deal with issues in the case which might have resulted in the Tribunal at least considering whether the conditions set out in Section 72(1)(b) and (c) might be relevant.  In my review the Tribunal was erroneous in law in not dealing with these issues.

20.	Section 72(1)(a) sets out two conditions for the award of the lowest rate of the care component.  A person can be awarded this rate if one or other or both of these conditions are satisfied.  Therefore a person can satisfy the adjudicating authorities that an award of the lowest rate of the care component is appropriate by establishing:

	(i)	that he requires in connection with his bodily functions attention from another person for a significant portion of the day; or

	(ii)	that he cannot prepare a cooked main meal for himself if he has the ingredients; or

	(iii)	both (i) and (ii).

	The requirements for (i) and (ii) are entirely different.  From the decision it is not known on which basis the claimant succeeded and one can only speculate that the Tribunal was satisfied that the claimant succeeded in her claim on one of the statutory grounds set out in section 72(1).  In my view the Tribunal erred in law in not dealing with this issue.

21.	Mr Shaw also submitted that the Tribunal was incorrect, in any event, in making an award in relation to the care component for a definite period.  Regulation 17(1) of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987 states as follows:-

		"17.-(1)  Subject to the provisions of this regulation and of 
		section 37ZA(3) of the Act (disability living allowance) and 
		Article 21(6) and (6F) of the Order (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."

	Therefore the Tribunal was required to treat the claim for care component as a claim for an indefinite period.  Regulation 17(6) states as follows:-

		"(6)  If, 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."

	For the reasons stated by Chief Commissioner Chambers in C8/94(DLA) I hold that the provisions of Regulation 17(1) and (6), which are of general application, apply to awards of Disability Living Allowance, subject to such variations as may be required by section 71 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 (formerly section 37ZA of the Social Security (Northern Ireland) Act 1975).  The relevant variation in this case, in accordance with section 72(3), is that the awards of Disability Living Allowance are described as being for fixed periods or for life rather than for a definite or indefinite period.

22.	Accordingly the Tribunal before making an award for a definite or fixed period is required to find that it is inappropriate to treat the claim as a claim for an indefinite period or for life in the circumstances.  As Mr Shaw pointed out, the Examining Medical Practitioner's report, adopted as the findings of the Tribunal, shows that the award of the care component is based on conditions which are either chronic or progressive.  In my view it is inappropriate to make an award in such circumstances for a definite or fixed period.  

23.	In the circumstances I am satisfied that the Tribunal's decision is erroneous in law for the reasons herein.  I allow the appeal, set aside the decision of the Tribunal for the reasons given herein and I refer the matter back to a differently constituted Tribunal for a rehearing.  This new Tribunal should have regard to what I have said in the course of this decision.

(Signed):  J A H Martin

CHIEF COMMISSIONER

11 November 1998