Decision No:  C55/98(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

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Appeal to the Social Security Commissioner
on a question of law from the decision of
Armagh Disability Appeal Tribunal
dated 26 November 1997

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant against the decision of a Tribunal to the effect that he was not entitled to either the care component or the mobility component of Disability Living Allowance from and including 28 October 1996.  Leave to appeal was granted by a Commissioner on 17 November 1998.

2.	The claimant made a claim for Disability Living Allowance from 25 August 1992 and was awarded the lower rate mobility component and the middle rate care component of Disability Living Allowance from 25 August 1992 until 27 October 1996.  On 6 June 1996 the claimant made a renewal claim for Disability Living Allowance on the grounds that he suffered from brain damage, severe pain in the back, arms and legs and also depression.  A report was completed by the claimant's General Practitioner in connection with his mobility and care needs and on 29 October 1996 the claimant was examined by an Examining Medical Practitioner.  On 15 November 1996 an Adjudication Officer disallowed the claim from and including 28 October 1996.  A request for review was received and, therefore, on 28 February 1997 a different Adjudication Officer reviewed the decision of 15 November 1996 but did not revise it.  On 28 March 1997 the claimant appealed to a Disability Appeal Tribunal.

3.	The Tribunal made the following findings of fact material to its decision in relation to the mobility component:-

"We accept the Examining Medical Practitioner report dated 29 
October 1996 and adopt it as part of our findings.  Based on 
that report we find that claimant can walk approximately 400 
metres in 8 or 9 minutes and can walk for a reasonable time at 
a reasonable speed and in a reasonable manner without severe 
discomfort and he is not, therefore, unable to walk or virtually 
unable to walk.  There is no evidence that the exertion required 
to walk could cause a danger to his life or health.

Claimant is able to drive car and was able to answer own questions 
clearly today and in our opinion he would have no problem about 
asking for directions if he was on an unfamiliar route and if he 
feels unable to remember where he is going he could always write 
down his destination before leaving home.  We therefore find that 
he does not need guidance and we accept the opinion of the 
Examining Medical Practitioner that he does not require supervision 
on routes either familiar or unfamiliar."

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

"For the reasons stated in connection with the care component we 
have accepted the Examining Medical Practitioner report and made 
our findings accordingly.

In his report Doctor W B M, Consultant Psychiatrist, thought 
that claimant might find it difficult to find his way on unfamiliar 
routes but, in our opinion it cannot be said that a person requires 
"guidance" if he has the capacity to ask his way and we can see no 
reason why claimant could not do so."

5.	The Tribunal made the following findings of fact material to its decision in relation to the care component:

"We accept the report of Examining Medical Practitioner dated 29 
October 1996 and adopt it as part of our findings.  Based on that 
report we find that claimant does not require any attention from 
another person in connection with his bodily functions either by 
night or day nor does he require supervision by night or day.  
There is no reason why he should not be able to prepare a main 
meal for himself."

6.	The Tribunal gave the following reasons for its decision in relation to the care component:-

"The Examining Medical Practitioner report states the conclusion 
that claimant does not require care or supervision and we accept 
the report because, broadly speaking, it is supported by the 
General Practitioner Factual Report dated 24 September 1996 and 
also by the report of Doctor W B M..., Consultant Psychiatrist 
which was obtained by the Independent Tribunal Service at the request 
of a previous Tribunal.  Furthermore the Examining Medical 
Practitioner report seems to us to be an expert and detailed report 
and we concluded that it was more reliable than claimant's evidence 
and that of his mother.

Later letters from the General Practitioner are not in line with his 
original factual report but on reading the letters carefully we are 
of the opinion that the General Practitioner has relied heavily on 
the history taken from claimant and his mother and we prefer the 
Examining Medical Practitioner report to these later letters.

Having accepted the Examining Medical Practitioner report it follows 
that claimant does not satisfy the criteria for the care component."  

7.	The following record of proceedings was made by the Chairman in relation to both components:-

"We had claimant's General Practitioner AT16 which was inspected 
by claimant.  Mr D... handed in a written submission, a letter 
dated 20 November 1997 from a Social Work Assistant, a letter 
dated 21 November 1997 from General Practitioner and a letter 
(undated) from the Northern Ireland Association for Mental Health.

Mr D...:  Both care and mobility.  I have not considered which 
levels would be applicable.  He was previously getting middle care 
and low mobility.  The appeal is based on both psychiatric and 
physical disabilities.  Depression and back pain.

[At this point Mr F... left the room but returned in a few 
moments and stood just inside the doorway].

Mr F...:  My back pain started with my motor cycle accident in 
1967.  Has got worse over the years.  No x-rays for about 15 years.  
No consultant recently.  Pain mainly in lumbar sacral area.  No 

physiotherapy for some years.  I take painkillers - can't remember 
name [General Practitioner does not mention].  Can walk about 30 
yards - come by car - drive myself.  My depression also come on after 
my accident - very bad accident.  Under care of psychiatrists since 
then but not seeing one at present.

[Mr F... left the room at the prompting of Mr D...].

Mrs F...:  He puts things away and I cannot find out from him 
where he puts them.  Poor short-term memory.  Attends centre every 
day.  Can be left on his own but not for long.  Can't wash his hair 
because of pains in arms.  Never had Occupational Therapist to see 
him.  Driving here today I had to tell to him twice where he was 
going.  I leave him a note every day to tell him where he is going.  
Can wash but not shower.  Stiffness stops him putting on socks 
etcetera.  Can use hands okay.

Mr D...:  I am not in a position to point to any specific likelihood 
of danger.

Mrs F...:  Some tines he can get out of bed but most times I have 
to lift his legs out.

Mr D...: Regarding General Practitioner factual - September 1996 - 
General Practitioner letter 30 January 1997 contradicts.

Mrs F...:  General Practitioner examined for before letter of 30 
January 1997 but did not suggest any further treatment or any new 
regime - no new referral.  Last saw psychiatrist years ago - except 
for Doctor M...'s report.

Mr D...:  Regarding Mr M...'s report - difficult to 
assess a psychiatric patient in short time.  I would point out that 
J did not tell him everything [gives examples].  Lots of 
discrepancies for example J's brother does not reside with him.  
I don't take issue with Doctor M...'s professional opinion."

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

"Appeal disallowed.  Claimant is not entitled to the mobility 
component of Disability Living Allowance from and including 28 
October 1996."

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

"Appeal disallowed.  Claimant is not entitled to the care component 
of Disability Living Allowance from and including  28 October 1996."

10.	Leave to appeal was refused by the Chairman on 4 July 1998.  However, as stated at paragraph one herein, a Commissioner granted leave to appeal on 17 November 1998.  

11.	The claimant's grounds of appeal were in the following terms:-

		"1.  Error of law on the face of the record:

		The tribunal decided that a person does not require guidance if he 
		has the capacity to ask his way.  The GB Commissioner in CDLA/42/94 
		said that "Guidance means the action of directing or leading.  It 
		may for example be constituted by physically directing or leading 
		the claimant or by oral direction, persuasion or suggestion".

		It is respectfully submitted that it is the requirement for oral 
		direction which is the key to satisfying the legislative test and 
		that the issue of whether the claimant can ask for oral direction 
		or not is an irrelevant one.

		2. Irrationality

		The evidence of Dr M... was that the claimant's "capacity to 
		absorb instruction and follow unfamiliar routes could be impaired 
		to some degree" and continued "he probably does have some difficulty 
		in absorbing new facts and information and could find it difficult to 
		find his way in unfamiliar routes".  The evidence of Dr M... to 
		this effect was corroborated by the letter from the Northern 
		Ireland Association of Mental Health and the Social Work Report.

		The tribunal stated in the reasons for the decision that they could 
		see no reason why the claimant could not ask for guidance.  It is 
		submitted that this unreasonably ignores the medical evidence of the 
		claimant's difficulty in absorbing new facts and information and 
		amounts to irrationality."

12.	Mr Stockman of the Law Centre (NI) appears on behalf of the claimant.  Mrs Moffett is the Adjudication Officer now concerned with this case.  Although the claimant sought a hearing of his appeal I am satisfied that the appeal can properly be determined without such a hearing.

13.	By letter dated 3 December 1998 Mrs Moffett supported the claimant's appeal on both grounds.  In the circumstances I consider that she was correct so to do.  

14.	The Tribunal seems to have accepted the fact that the claimant may be unable to take advantage of walking out of doors along unfamiliar routes without asking for directions.  As Mrs Moffett pointed out, if the claimant is so severely disabled mentally that he requires to ask for directions in order to be able to walk along unfamiliar routes then this, in itself, would be evidence that the claimant requires guidance from another person in order so to do.  A person is entitled to the mobility component at the lowest rate if he is over the age of 5 and he is able to walk but is so severely disabled physically or mentally that, disregarding any ability he may have to use familiar routes he cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time.  (see section 73(1)(d) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992).  Therefore to satisfy section 73(1)(d) the claimant would have to require this guidance (or supervision) for most of the time.  The fact that there is evidence available to the effect that the claimant may not have the capacity to comprehend oral directions is evidence in support of the view that he would probably require guidance in the form of either physically having to be directed or having physically to be led, and therefore there is some evidence available that the claimant might require guidance for most of the time.

15.	As Mrs Moffett pointed out, the decision of Mrs Commissioner Brown in C34/98(DLA), which post-dated the present appeal, was not available to the Tribunal.  However, this decision does give guidance to Tribunal's dealing with the issue of the meaning of "cannot" in the context of section 73(1)(d) and, in particular, held that it would include a situation where it would be completely unreasonable (disregarding his ability to go out on his own on familiar routes) for a claimant to permit himself to go out walking without guidance or supervision most of the time.

16.	In the circumstances I conclude that Mr Stockman is correct in his submission that the Tribunal's decision is erroneous in law because:-

	(i) 	by deciding that the person does not require guidance he has the capacity to "ask his way" it erred on the face of the record, because in cases of this nature it is the requirement for oral direction which is the key to satisfying the legislative test; and 

	(ii) 	it was irrational to have decided that the claimant could ask for guidance when the medical evidence was to the effect that the claimant has difficulty absorbing new facts and information.

17.	Mrs Moffett made additional submissions expressing her concern that the Tribunal had erred in further respects.  I consider that there is substance in one of these additional submissions.

18.	Mrs Moffett has drawn to my attention that the Tribunal, in relation to the care component, might not have applied the correct test when considering section 72(1)(a)(ii) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 - the main meal test.  In particular she pointed out that the Tribunal accepted the  Examining Medical Practitioner's report of 29 October 1996 and found that there was no reason why the claimant should not be able to prepare a main meal for himself.  It was also relevant to the Tribunal that this report was largely supported by the General Practitioner's factual report of 24 September 1996 and also by the report of Dr M..., Consultant Psychiatrist.  Mrs Moffett has pointed out that the Examining Medical Practitioner's report has recorded that the claimant "should be able to prepare a simple hot meal for one person if instructed".  She has submitted that the fact that the claimant has to be instructed is evidence in itself that the claimant is unable to prepare a main meal and therefore it was incorrect for the Tribunal to conclude from the Examining Medical Practitioner's report that the claimant could prepare such a meal.  Mrs Moffett also submitted that the evidence in the case is to the effect that the claimant does not know how to cook, he has difficulty absorbing new facts and information, his General Practitioner questions his ability to cook with hot pans and a consultant psychiatrist is also uncertain about his capacity to cook a meal.  In these circumstances Mrs Moffett had submitted that it was difficult to see how the Tribunal could, in the circumstances, have decided that the claimant was able to prepare a main meal.  

19.	Mr Stockman, by letter dated 25 January 1999, endorsed Mrs Moffett's submissions on this point.

20.	I accept that Mrs Moffett is correct in submitting that the Tribunal's approach regarding the meal test was erroneous as it considered the claimant's ability to prepare a meal, if instructed.  In my view the meal test or cooking test addresses the claimant's ability to plan and prepare a cooked meal safely and adequately for himself.  If the claimant would require specific and detailed instructions before he could prepare such a meal, in my view, it is most unlikely that he could be said to have the ability to plan and prepare such a meal safely and adequately.  In the circumstances I conclude that the Tribunal has erred in law accordingly.

21.	For the reasons stated I am satisfied that the Tribunal's decision is erroneous in law for the reasons set out herein.  Accordingly I allow the appeal and set aside the decision of the Tribunal.  I am aware of my powers in certain circumstances to give the decision which I consider the Tribunal ought to have given.  However, I consider that it is more appropriate for a differently constituted Tribunal to rehear all the issues in relation to both the mobility component and the care component of Disability Living Allowance and come to the appropriate decision in light of all the relevant evidence.  I therefore refer the matter back to such a Tribunal for a rehearing and that Tribunal should have regard to what I have said in the course of this decision.

(Signed):  J A H Martin
	
CHIEF COMMISSIONER

9 November 1999