Decision No: C33/99(DLA)

	SOCIAL SECURITY ADMINISTRATION (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 Omagh Disability Appeal Tribunal
	dated 4 December 1998

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant against the decision of a Tribunal.  The Tribunal disallowed the claimant's appeal and, in relation to the care component, held that the claimant was not entitled to the lowest rate of the care component of Disability Living Allowance from and including 4 June 1997 and was not entitled to any rate of the mobility component of Disability Living Allowance from and including 4 June 1997.  Leave was granted by the Chairman on 21 July 1999 to appeal to a Commissioner.

2.	On 4 June 1997 the claimant made a claim for Disability Living Allowance stating that he suffered from osteo-arthritis in his left knee, low back pain, asthma and hypertension.  After the completion of two medical reports by the claimant's General Practitioner an Adjudication Officer considered the claim and on 27 June 1997 awarded the lowest rate of the care component (because of an inability to prepare a cooked main meal) from and including 4 June 1997.  A request for a review was then received on 10 July 1997 and the request was worded in such a way that it is clear that the claimant was putting forward the case that he was entitled to the mobility component of Disability Living Allowance.  On 31 October 1997 the claimant was examined by a Examining Medical Practitioner.  On 7 February 1998 a different Adjudication Officer reviewed the decision of 27 June 1997 but did not revise it, after taking all the available evidence into account.  On 24 April 1998 the claimant appealed to an Appeal Tribunal.  The appeal came before a Tribunal on 19 June 1998 but was adjourned to enable the claimant's representative to address the argument for the removal of the lowest rate of the care component of Disability Living Allowance.  The case again came before a Tribunal on 26 October 1998 but it was adjourned for a second time to enable the claimant's General Practitioner's notes to be made available.  The matter finally came before a Tribunal again on 4 December 1998.

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

		"Appellant awarded low rate care component from and including 
		4 June 1997.  On the basis of help with a main meal due to 
		Examining Medical Practitioner report of 31 October 1997 which 
		found help required to use a cooker and cope with hot pans 
		"due to pain in back and left knee" and General Practitioner 
		factual report of 13 June 1997 which stated that appellant 
		could turn taps on and off, use cooker and peel and chop 
		vegetables but not cope with hot pans "due to low back pain 
		has difficulty in lifting up heavy pans."

		The Tribunal considered section 31(6) of the 1997 Act.

		The Tribunal found that the appellant's osteoarthritis is in 
		his left knee only in his oral evidence today.  He has 
		rheumatic pains elsewhere.  The Examining Medical Practitioner 
		found that he had full function of both upper limbs.  He has 
		had no occupational therapy referral, no recent orthopaedic 
		referral.  The information from both Examining Medical 
		Practitioner and General Practitioner regarding inability to 
		cook refer to problems with back and left knee.  The Tribunal 
		found that these findings amount to reasonable grounds for 
		believing that the entitlement to the low rate care component 
		right not to continue.

		We found that the appellant if given the opportunity to sit and 
		stand and given the use of a slotted spoon would not require 
		assistance with the activities of cooking.

		Given the findings of his General Practitioner that he could 
		turn taps on and off, use a cooker and chop vegetables and the 
		findings of the Examining Medical Practitioner that he has full 
		function of his upper limbs.  We accept that he has pains in his 
		hands and shoulders but do not find that there is evidence to 
		indicate that he is so disabled that he is unable to use his 
		upper limbs for cooking given the appropriate aids as mentioned.

		There was no case presented in relation to middle or high rate 
		care."

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

		"The award of low rate care component is removed because the 
		Tribunal are satisfied that there were reasonable grounds for 
		believing that the award of the component right not to continue 
		as set out in S31(b).  The Tribunal then took into account the 
		detailed findings in relation to the appellant's medical 
		condition of the Examining Medical Practitioner in relation to 
		his upper limb function and the reasons given for inability to 
		cook of both the Examining Medical Practitioner and the General 
		Practitioner.  We also considered the question of the use of 
		aids in preparing a cooked main meal as set out in 31/98DLA.

		It is out view taking all these factors into account that the 
		appellant is not entitled to the low rate care component."

5.	The unanimous decision of the Tribunal in relation to the care component was in the following terms:-

		"Appeal disallowed.  The appellant is not entitled to the low 
		rate care component from and including 4 June 1997."

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

		"The appellant has osteoarthritis of left knee.  He was advised 
		by orthopaedic consultant 1996 that he was too young for 
		transplant and knee not yet bad enough.  In his application has 
		said that he could walk 100 yards.  Today he stated he could 
		walk 50 yards on a good day which is 3-4 per month.  There has 
		been no referral back to orthopaedic consultant and no MRI scan 
		performed.  Appellant has had no injection into the knee and no 
		occupational therapist referral.  Physiotherapy was only for the 
		purposes of giving advice on exercises.

		The Tribunal accepted the findings of the Examining Medical 
		Practitioner in respect of walking ability which was that 
		appellant could walk 50-100 yards on level ground slowly with 
		no halts; a slight stoop and limp due to knee pain.  Balance 
		good.

		We did not accept the appellant's evidence that his condition 
		had deteriorated since that examination.  His General Practitioner 
		notes mention pain in right knee due to 'overuse'."

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

		"While the Tribunal accepted that the appellant has osteoarthritis 
		of left knee and pains in his back and elsewhere.  We did not 
		accept that this rendered him virtually unable to walk.  We 
		found that he could walk 50-100 yards at a slow pace with a limp 
		in 5 to 10 minutes without halting and without severe discomfort.  
		We did not therefore find that he was virtually unable to walk.  
		We rejected his evidence that he could only walk 50 yards 3-4 
		times per month as being exaggerated and would have expected 
		further medical intervention if this was the case if such rapid 
		deterioration had taken place.

		There was no claim made in respect of the low rate."

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

		"Appeal disallowed.  The appellant is not entitled to the 
		mobility component from and including 4 June 1997."

9.	The claimant, who is represented by the Law Centre (NI), sought leave to appeal to a Commissioner on the following grounds:-

		"It is respectfully submitted that the tribunal made an irrational 
		decision based on insufficient evidence.  The tribunal decision 
		of 4 December 1997 erred in law to the extent that no tribunal 
		properly directing itself could have reached the decision it did, 
		based on the evidence available to it.

		There is insufficient evidence, under Section 31(6) of the Social 
		Security Administration (NI) Act 1992, upon which to base a 
		decision to withdraw a component of DLA, in this case the care 
		component, not previously the subject of appeal.

		The same evidence, namely the report by the EMP and GP, had been 
		used by Adjudication Officers on two previous occasions to support 
		the award of care component and there has been no relevant change 
		of circumstances to the date of hearing on 4 December 1998.

		In decision C21/96 the Commissioner states "in a case where the 
		tribunal takes upon itself the onus of re-opening a matter which 
		is not under appeal, it has a heavy duty to discharge and can only 
		do so by setting out in precise terms the evidence upon which it 
		based its opinion".

		It submitted that the tribunal did not have fresh evidence which 
		would have allowed it to interfere with the lifetime award."

10.	As stated at the first paragraph the Chairman granted leave to appeal on 21 July 1999.

11.	The Adjudication Officer (now the Departmental Official) made relevant submissions opposing the appeal by letter dated 3 November 1999.  In particular he made the following submissions:-

		"Section 31(6)(a)(b) and (c)(ii) of the Social Security 
		Administration (Northern Ireland) Act 1992 prescribes that -

		"The tribunal shall not consider -

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

		(b)	the rate of a component so awarded; or

		(c)	the period for which a component has been so awarded, 
			unless

			(i)	.....

			(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."

		It is clear [the claimant] did not appeal against the life award 
		of lower rate care component and therefore this award could only 
		be disturbed if section 31(6)(a)(b) and (c)(ii) applied.  The 
		record of proceedings relating to the adjourned hearing on 19 
		June 1998 indicate the presenting officer submitted the General 
		Practitioner's report dated 13 June 1996 suggested [claimant] 
		could prepare a main meal with the use of suitable a utensil to 
		overcome difficulties with lifting heavy pans.  As this report 
		was tabbed as evidence before the tribunal, I submit the tribunal 
		was entitled to use this information to decide it had reasonable 
		grounds for believing that entitlement to the component ought not 
		to continue.  There is no legislative requirement that the 
		information must be new, previously unconsidered, information 
		(see Commissioner's decision C57/97(DLA), paragraph 11 ....

		Having informed [claimant] that his entitlement to the lower 
		rate care component would be considered, I submit the tribunal 
		complied with the rules of natural justice by adjourning the 
		hearing to allow the representative time to address this issue 
		(see Commissioner's decision C12/98(DLA), paragraph 10 ...).  
		At the subsequent hearing on 26 October 1998 [claimant's] 
		representative accepted the tribunal had the jurisdiction to 
		consider the care component.  It was also agreed that sight of 
		General Practitioner's notes would be useful and that there 
		should be an adjournment in order for the to be produced.

		On 4 December 1998 the reconvened tribunal considered all the 
		evidence including [claimant's] oral evidence at the hearing 
		and decided he was not entitled to the lower rate of care 
		component.  It is apparent the tribunal had regard to 
		Commissioner's decision C31/98(IB) ... which was referred to 
		in the adjudication officer's submission.  This decision was 
		issued on 27 May 1998 and as such was not available to the 
		adjudication officer who carried out a review of the benefit 
		award on 7 February 1998.  In paragraph 6 the Commissioner 
		endorsed the view that it is the ability to perform the tasks 
		involved in preparing and cooking a main meal given normal 
		reasonable facilities that should be considered.  I submit the 
		tribunal finding that [claimant] would not require assistance 
		with the activities of cooking given the opportunity to use 
		reasonable facilities (including a slotted spoon to cope with 
		difficulties handling hot pans) was not perverse on strength of 
		the evidence presented.

		I agree that the tribunal must set out in precise detail the 
		evidence upon which it relied to apply section 31(6) of the 
		Social Security Administration (Northern Ireland) Act 1992.  
		However, the tribunal's explanation (under the heading 
		"Findings of Fact Material to the Decision") that it relied 
		on:-

		.	[Claimant's] oral evidence at the hearing that 
			osteoarthritis was present in his left knee only;

		.	the Examining Medical Practitioner's finding that 
			he had full function of his upper limbs and

		.	evidence that he had no occupational therapy or 
			recent orthopaedic referral

		as the basis upon which it considered entitlement to the lower 
		rate care component seems adequate to comply with the 
		requirements of Commissioner's decision C12/98(DLA), paragraph 
		10 ....

		For the reasons above I submit there has been no apparent error 
		in law and therefore I oppose the appeal."

12.	The claimant did not appeal against the life award of the lowest rate care component of Disability Living Allowance.  Therefore this award could only be disturbed if the provisions of section 31(6)(a)(b) and (c)(ii) were applicable.  However, for the reasons stated by Mr Fletcher, I take the view that the Tribunal was entitled to consider this award as information was clearly available to it which gave it reasonable grounds for believing that the entitlement to the lowest rate care component ought not to continue.  As Mr Fletcher has pointed out, the information need not be new or previously unconsidered information.  Mrs Commissioner Brown has made this clear in decision C57/97(DLA) in which she stated at paragraph 11:-

		"... there is no requirement of new information being available 
		to the Tribunal to enable it to consider an award under section 
		31(6).  Had the legislature wished to state that new information 
		was necessary it could quite easily have expressly done so.  I 
		do not think that it intended to do so by implication, firstly 
		because it was not necessary to do so by implication, the matter 
		could have been clearly set out.  Secondly because I think any 
		such implicit restriction could produce an inherently absurd 
		situation.  For example, where an Adjudication Officer has 
		awarded the high rate of the mobility component to a claimant 
		who has stated throughout his claim that he can walk a mile 
		without any discomfort whatsoever and at a brisk speed and 
		normal gait and who is appealing only in relation to the care 
		component, it would be patently ridiculous for the Tribunal to 
		continue the award of mobility component. ..."

13.	I am also satisfied that the original Tribunal complied with the rules of natural justice by adjourning the original hearing to allow the claimant's representative to address this issue.  This is entirely consistent with the legal position as set out by Mrs Commissioner Brown in decision C12/98(DLA) at paragraph 10 where she stated:-

		"It is also important that the rules of natural justice be 
		borne in mind throughout.  How these are to be applied is 
		obviously particular to each case but it is desirable that 
		a claimant is not taken by surprise by the Tribunal's 
		consideration of a component under section 31(6)(ii).  Where, 
		therefore, consideration under section 31(6)(ii) appears likely, 
		I can see no error (rather the reverse) in a Chairman warning a 
		claimant at the outset that this consideration may or will take 
		place and indicating why and seeking comment.  Adjournment may 
		have to be considered but it is not desirable or correct to be 
		prescriptive on that matter."

14.	It is also noteworthy that Mr McGale, of the Omagh Independent Advice Centre, who then represented the claimant, accepted at the 26 October 1998 hearing that the Tribunal had the jurisdiction to consider the care component.

15.	The main thrust of the claimant's present appeal, as set out by the Law Centre (NI), is that once a Tribunal takes upon itself the onus of reopening a matter which was not involved in the original appeal it must set out in precise detail the evidence upon which it based its opinion.  The claimant relied upon the statement of Mr Commissioner McNally in decision C21/96(DLA) in which the Commissioner stated:-

		"... In a case where the Tribunal takes upon itself the onus of 
		reopening a matter which is not under appeal, it has a heavy 
		duty to discharge and can only do so by setting out in precise 
		terms the evidence upon which it based its opinion. ..."

16.	However, as Mr Fletcher has pointed out, the Adjudication Officer on 7 February 1998 did not have the benefit of the decision of Mrs Commissioner Brown of 27 May 1998 C31/98(DLA) which stated at paragraph 6 that it is the ability or inability to perform the tasks involved in preparing and cooking a main meal given normal reasonable facilities that ought to be considered.  It seems to me that the Tribunal, in December 1998, was properly taking this decision into account when stating that "given the opportunity to sit and stand and given the use of a slotted spoon" the claimant "would not require assistance with the activities of cooking."

17.	In addition Mr Fletcher has submitted that the Tribunal has set out, in detail, the evidence upon which it was relying and in particular he has drawn my attention to the Tribunal's reference in its findings of fact to (i) the claimant's oral evidence at the hearing that osteoarthritis was present only in his left knee, (ii) the Examining Medical Practitioner's finding that the claimant had full function of his upper limbs and (iii) that there was evidence that he had no occupational therapy nor had he any recent orthopaedic referral.  As Mrs Commissioner Brown stated in decision C12/98(DLA) at paragraph 10, once a Tribunal's jurisdiction under 31(6)(ii) is established:-

		"...It can then proceed to consider the claimant's entitlement 
		to the component and the rate and period of the award of the 
		relevant component but must as the Chief Commissioner stated 
		(paragraph 7) (that is paragraph 7 of Determination A84/96(DLA)), 
		make its own findings of fact on these matters.  There is a two 
		stage process - (1) to indicate the information giving grounds 
		to consider the component under section 31(6)(ii) and (2) once 
		jurisdiction under section 31(6)(ii) is established, to decide 
		on entitlement, and if entitled, rate and period of that 
		component."

18.	In conclusion I take the view that the Tribunal was entitled to come to the conclusion that it did in removing the award of the lowest rate care component of Disability Living Allowance in light of the evidence available to it.  Therefore I dismiss the claimant's appeal for the reasons stated. 

(Signed): J A H Martin

CHIEF COMMISSIONER

26 April 2000