Decision No: C62/98(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 a Tribunal's decision
dated 9 April 1998

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant against the decision of a Disability Appeal Tribunal (DAT) which held that the claimant was not entitled to either component of the Disability Living Allowance (DLA) from 13 June 1997.  The appeal comes by leave of that Tribunal.

2.	Briefly, the facts are that the claimant first claimed DLA in June 1994 and was awarded the higher rate care and the higher rate mobility components from 13 June 1994 to 12 December 1995.  On a renewal claim he was awarded the lower rate care component from 13 December 1995 till 12 June 1997.  The claimant had asked that his claim be considered under the special rules relating to a person suffering from a terminal illness, likely to limit his life expectancy to less than 6 months from the date of claim.  As a result of that claim he was awarded the lowest rate care component from 13 June 1997 till 12 June 1999.  He made a request for a review and supplied further information as a result of which on 10 September 1997 a different Adjudication Officer reviewed the decision dated 13 May 1997 and revised the decision and disallowed both components of DLA from 13 June 1997.  Against that decision the claimant appealed to a DAT.

3.	That Tribunal held that he was not entitled to either component of DLA but made no reference whatsoever to the fact that this was an appeal against a review decision of an Adjudication Officer.  The Tribunal gave reasons for its decision as follows:-

		"We have no doubt that claimant has a back condition.  This has been confirmed by 2 MRI scans one in 1996 the other at the beginning of 
		1998.  However we have equally no doubt that he grossly overstates 
		his condition.  There is no evidence that he suffers from migraine.  
		Although he produced a bottle of migralene tablets to the Examining 
		Medical Practitioner (E.M.P.) the date had been torn off.  His 
		General Practitioner makes no reference to migraine.  On balance we 
		do not accept that this condition exists.  We do not accept that he 
		has vertigo or indeed any balance problems.  There is no medical 
		evidence to suggest such a condition.  The Examining Medical 
		Practitioner states that claimant could walk 50-60 metres at a slow 
		pace but without severe comfort.  The General Practitioner confirmed 
		to slow pace but both doctors felt that he did not require any 
		guidance or supervision out of doors.  We are satisfied that this 
		does not constitute a virtual inability to walk.  He is clearly 
		capable of walking a reasonable distance  albeit at a slower than 
		normal speed.  Any exertion he expends is not a danger to his life 
		nor would it lead to a deterioration of his health.  The General 
		Practitioner's notes indicate that although straight leg raising is 
		grossly restricted bilaterally he is neurologically intact.  (On 
		28.11.97 it was 50o left 80o right).

		With regard to the care component claimant's General Practitioner 
		had no record of how his condition would affect his abilities in 
		this respect.  It is significant that he has not confirmed claimant's 
		views of his own extensive care needs.  The Examining Medical 
		Practitioner felt that claimant would need help to dress and undress 
		his lower garments help on the stairs and to bath/shower.  Otherwise 
		he was fully independent.  The Examining Medical Practitioner 
		considered that claimant is fully mentally competent, aware of 
		dangers and capable of maintaining a reasonable standard of hygiene.  
		What help he needs with bodily functions is not frequent throughout 
		the day nor is it for a significant portion of the day.  We accept 
		the views of both the General Practitioner and the Examining Medical Practitioner."

 4.	The claimant sought leave to appeal against the decision of the DAT on the following grounds:-

		"It is respectfully submitted that the decision of the Tribunal was 
		erroneous in law as follows:-

		(1)	The Tribunal erred in law by failing to make adequate findings of fact to facilitate due consideration of the legislative test for the lowest rate of the care component of Disability Living Allowance contained in Section 72(1)(a)(i) of the Social Security Contributions and Benefits (NI) Act 1992.

			The Tribunal stated in their findings of fact, "he can attend to all of his bodily functions unaided and can prepare a cooked main meal". However the Tribunal then proceeded in the reasons for their decision to state that "the Examining Medical Practitioner felt that the claimant would need help to dress and undress his lower garments, help on the stairs and to bath/shower. ... What help he needs with bodily functions is not frequent throughout the day nor is it for a significant portion of the day.  We accept the views of both the General Practitioner and the Examining Medical Practitioner."

			It is submitted that having accepted the Examining Medical Practitioners estimation of Mr R...'s care needs the Tribunal 
			erred in failing to proceed to consider the total amount of 
			attention, which Mr R... required and the percentage or fraction of the normal day for that household that that total involved. 
			Mr R... relies on CSDLA/29/94 as authority for the requirement that a Tribunal should make such a finding of fact in the application of this test.

		(2)	The Tribunal's finding of fact that Mr R... does not suffer from migraines is irrational.  The Tribunal stated in the reasons for their decision that there is no evidence that he suffers from migraine, however Mr R...'s GP, Dr T, stated on Form DLA580 dated 16 January 1997 that Mr R... suffered from bad migraine headaches and that he was prescribed Migraleve.

			In the alternative it is submitted that the Tribunal erred in 
			failing to state adequate reasons for rejecting the GP's 
			evidence and Mr R...'s own evidence that he suffered from 
			migraine attacks."

5.	The Chairman of the Tribunal granted leave to appeal and I arranged an oral hearing of the appeal at which the claimant was present and was represented by Ms Slevin of the Law Centre (NI), the Adjudication Officer was represented by Mrs Gunning.  

6.	Ms Slevin first dealt with the findings of fact and argued that the Tribunal did not make adequate findings of fact and did not satisfy the test set down in CDLA/206/1997.  She said the Tribunal should have assessed how much time was spent on the activities and in this connection. 

	In relation to the findings of fact Mrs Gunning referred to CSDLA29/94 which is Starred in as "14/95" in which the Commissioner set out guidelines in respect of assessing the time taken for the various assistance given to a claimant.  Mrs Gunning said that the Tribunal accepted the findings contained in the Examining Medical Practitioner's report that claimant needed help to dress and undress lower garments, on the stairs and in the bath and shower, she said that even though the Tribunal accepted that opinion it found that he could attend to all his bodily functions unaided. She suggested that these findings of fact were inconsistent for the reasons for the decision and it may well be that that inconsistency itself amounted to an error of law.   

	Ms Slevin then dealt with the second point in her notice of appeal, that the Tribunal found that the claimant did not suffer from migraine.   She said that this finding was completely irrational as the GP stated in his report of 1997, the claimant suffered bad migraine headaches and suggested that it may well be that the Tribunal had not read all the documents in the case.  

	On this point Mrs Gunning said that she accepted that on the face of it, it was difficult to reconcile the Tribunal's findings of fact that the claimant did not suffer from migraine with the evidence on the case.   She noted that on page 3 of section 1 of Form DLA580 the claimant stated that migraine headaches was one of his disabilities and made reference to needs arising from these headaches.   His GP completed statement 2 on page 31 stating that the main disabling condition was low back pain from laminectomy with sciatica, another disabling condition.   In the box relating to other information he stated "bad migraine".  Mrs Gunning said that the only explanation for the Tribunal's finding was that it did not accept the doctors diagnosis and that it rejected that evidence.  She submitted that the Tribunal was entitled to do so.  Mrs Gunning said in the reasons for this decision the Tribunal indicated that it had considered all the documentary evidence and decided that claimant grossly overstated his condition and that on the balance, the condition (migraine) did not exist.  Mrs Gunning argued that the question at issue was one of entitlement, the onus was on the claimant to show that he satisfied the entitlement conditions.

7.	I have considered all and have considered the findings of fact made by the Tribunal and I have attempted to relate them to the medical evidence.

8.	The Examining Medical Practitioner found that he needed help in dressing, undressing, going to the bathroom, on the stairs and that as far as cooking a meal he would probably have to sit down to peel vegetables or use a cooker.  As far as walking is concerned the Examining Medical Practitioner estimated that he could walk 50-60 metres with probably one rest and without any pain.  He also recorded that the claimant stated that he fell 3 or 4 times a week, but that the Examining Medical Practitioner could not substantiate this.  He finished his report by saying "he is probably significantly disabled but I feel he overstates his disability to a degree".  I have also considered what the Tribunal refers to as the "evidence" of Dr Turkington which sets out the fact that he has low back pain but records that he has no record relating to the claimants ability to walk.

9.	I have also considered the report from Mr H Consultant Orthopaedic Surgeon who saw the claimant in 1996.  Mr H recorded that his spinal movements were very restricted, straight leg raising on both sides was only possible to 10 degrees, that his MRI scan showed 2 gross levels of disc degeneration in L4/5 and L5/SI and recorded:-

		"My overall impression is that this man is suffering from chronic low 
		back pain which pre-dates to some extent his onset of sciatica.  He 
		is not a suitable candidate for further simple discectomy.  His 
		options are to continue to live with his problem as it is, go to a 
		pain management program or consider having major spinal surgery to 
		try and help his pain.  He does not like the idea of having further 
		surgery unless there was an absolute guarantee of success which of 
		course I could not offer him.  He, therefore would prefer to go to 
		the Pain Management Program and I am referring him to the Belfast 
		City Hospital for assessment for this Program.  He has been warned 
		that this will not take away his pain but may make it easier for him 
		to cope with it."

	What surprises me is that there is no reference whatever in the Tribunal record of the Tribunal having considered the Consultant's report.  Also, the negative approach taken by the Tribunal when it comments, in relation to the claimants care component needs, that his GP had no record of how his condition would effect his ability and considered it was significant that he had not confirmed claimant's view of his own extent of care needs.  On reading the reasons for the decision one is faced with so many contradictions, for example, as was pointed out his complaint of migraine, Yet the Tribunal said it accepted the views of both the GP and the Examining Medical Practitioner.  I am at a loss to know what the views of the GP were.

10.	I am quite satisfied that the Tribunal erred in not making proper findings of fact relating to `the time spent relevant to claimant's care needs and in that regard the Tribunal should have considered CSDLA/29/94 now Starred 14/95, but I think that the Tribunal was misled by the submission made by the Adjudication Officer. The Adjudication Officer in his submission to the Tribunal refers to back pain and said it is often a factor in limiting mobility , however, "this can usually be controlled by analgesics and a surgical corset may also be helpful in reducing pain" whereas there was evidence in fact that the claimant did wear a surgical corset.  Also it referred to CDLA/757/1994 and said this had been followed by a Northern Ireland Commissioner in C40/95(DLA).  It is clear that that opinion has been rejected time and time again and it is time that the Adjudication Officer's in their submissions brought their argument up to date.

11.	I am satisfied that the Tribunal erred in the matters which I have set out above and it did not make proper findings of fact or properly apply the care test, that it did not properly apply the law relating to mobility because the evidence was that he had to stop once because of pain in 50 - 60 yards.  Taking into consideration the consultant's report which I have referred to, it is quite clear that his entitlement to a mobility component of DLA and also the care component, should not have been rejected without giving proper reason and making proper findings of fact, what that entitlement amounts to would need to be examined more carefully.  Consequently I allow the appeal and set aside the decision of the Tribunal and refer the matter back to be reheard by a differently constituted Tribunal.  That Tribunal should take into account all the medical evidence and make proper findings of fact relating to not only the medical evidence but the evidence of the claimant himself.

(Signed):  C C G McNally

COMMISSIONER

2 July 1999