Decision No:  C11/00-01(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 Ballymena Appeal Tribunal
dated 6 April 2000

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant, with the leave of a Commissioner, against the decision of the Tribunal to the effect that the claimant is entitled to the middle rate care component and lower rate of the mobility component of Disability Living Allowance from 21 July 1999 to 30 April 2002 but is not entitled to any rate of the care component or either rate of the mobility component of Disability Living Allowance from 4 August 1998 to 20 July 1999.

2.	Having considered the circumstances of the case and the reasons put forward in the request for a hearing, I am satisfied that the appeal can properly be determined without a hearing.

3.	On 29 August 1998 the claimant was awarded higher rate mobility component and lowest rate care component of Disability Living Allowance from and including 4 August 1998.  On 4 February 1999 he applied for review contending that his condition had deteriorated and that he had increased care needs.  On 25 May 1999 an Adjudication Officer reviewed but did not revise the decision of 29 August 1998.  This decision which contained an obvious error was corrected on 28 June 2001.  The claimant then sought review of that decision.  On 17 September 1999 a different Adjudication Officer reviewed but did not revise the decision of 25 May 1999.  The claimant appealed against that decision.

4.	At the hearing the claimant was represented by Ms McCauley of the Citizens Advice Bureau while the Departmental Presenting Officer was Mr Delargy.  A Mrs S... was a witness on behalf of the claimant.  The relevant question before the Tribunal was whether there were grounds to review the decision of 29 August 1998 which awarded Disability Living Allowance.  The claimant sought review on the basis that his care needs had increased.  He did not mention the mobility component and this was not surprising as he was already in receipt of maximum amount of that component.

5.	The Tribunal decided that there had been a relevant change in the claimant’s circumstances and awarded him middle rate care component and lower rate of the mobility component of Disability Living Allowance from 21 July 1999 to 30 April 2002 but, in addition, decided that he was not entitled to any rate of the care component or either rate of the mobility component of Disability Living Allowance from 4 August 1998 to 20 July 1999.

6.	The details of the Tribunal’s decision plus the supporting documentation relating to the decision were as follows: -

(i)	The Legally Qualified Panel Member’s record of proceedings in relation to the care component was in the following form: -

“Mr Delargy

No initial points to make.

Mrs McAuley

Prior to accident – emphysema, arthritis, asthma.

Mrs S...

Prior to accident – he lived alone – in a 2 storey house – spent most of days with me in bungalow – nights in home.  Stairs difficult.  No history of falling.  Toilet upstairs.  Lived alone.

Nebuliser had to be carried upstairs at night and down in morning.

Injections into shoulder in past.

Mrs S...

Still with me in a bungalow.  After accident he was in severe pain – headaches – couldn’t stand noise – still very confused.  Depression – coaxed into doing things.  Bad dreams.  Thoughts of self harm.  Gets more confused as time goes on.  Doesn’t know day of the week.  Would be able to shave/dress after 1½ hours – sometimes wouldn’t bother.  In “a world of his own”.  Not concerned about condition of house.  Television would be on but he wouldn’t discuss it.  Can’t do crosswords.  Would forget.”

(ii)	The Tribunal’s reasons for its decision in relation to the care component were as follows: -
“By a decision dated 29.8.98 the claimant was awarded lowest rate care component (and higher rate mobility component) from and including 4.8.98.  His claim detailed care and mobility needs based on chronic lung disease and arthritis affecting his back and hips.  An out of time review request was made on 4.2.99 and prior to determination of this on 25.5.99 the claimant was involved in a Road Traffic Accident on 21.4.99 in which he sustained a head injury, and we have accepted the contents of Dr M...’s letter of 3.2.00 with regard to the consequences of this.

We are satisfied therefore that on 17.9.99 the Adjudication Officer had grounds to review the decision of 29.8.98, being relevant change of circumstances, in that the claimant had then new disabilities.

Having considered all the medical records and the self-assessment form completed by the claimant on 14.8.98, and the report of Dr O... dated 19.3.99, we have concluded that prior to the Road Traffic Accident, the claimant did not, despite his medical condition, reasonably require help with bodily functions, except to carry his nebuliser upstairs at night and down again in the morning, nor did he require supervision at any time to avoid substantial danger to himself or others.  We do not consider that on the evidence he would have been unable to carry out all the activities involved in planning and preparing a cooked main meal for himself if he had the ingredients.  He did not indicate any such problems in his self-assessment form and his General Practitioner reported that he would only have problems with heavy pots.

After the Road Traffic Accident, however, we are satisfied that the claimant has required frequent attention throughout the day in connection with bodily functions, some of which is actual physical attention, and some in the form of encouragement to perform bodily functions, and we accept Mr Delargy’s concession in this regard.  We are satisfied that without this the claimant would be unable to care for himself adequately.

With regard to night-time, we do not consider on the evidence that the claimant requires prolonged or repeated attention at night in connection with bodily functions, nor does he require anyone to be awake and watching over him for prolonged periods or at frequent intervals.  He can get up to toilet himself if necessary.  We note Mrs S...’s evidence in relation to the claimant’s bad dreams and depression, and concerning his getting up to sit in the living room, but we do not conclude that it has been established that he would be in substantial danger if she did not watch over him at these times, there is no evidence of any dangerous or potentially dangerous behaviour, his General Practitioner has not considered that night time sedation is appropriate, nor did the Examining Medical Practitioner consider that night time care or supervision was required.

We have thought it appropriate to limit the period of award in view of Dr M...’s view that there is a possibility of some recovery of function and we consider that by April 2002 this should be clearer.” 

(iii)	The unanimous decision of the Tribunal in relation to the care component was in the following terms: -

			“Appeal allowed in part
There are grounds to review the decision of 29.8.98 awarding lowest rate care component from and including 4.8.98 being relevant change of circumstances.  The claimant is entitled to middle rate care component (for day care needs) from 21.7.99 until 30.4.2002.  He has satisfied the conditions of entitlement from 21.4.99.  He is not entitled to any rate of care component prior to 21.7.99.  We direct that the amount of disability living allowance already paid be treated as paid on account of that now awarded.”

(iv)	The Legally Qualifed Panel Member’s record of proceedings in relation to the mobility component was in the following form: -

“Mrs S...
Prior to accident couldn’t walk any distance.  Would have had to stop on hill – use inhaler.  On flat has to stop.  Can’t gauge footpath.  Road Traffic Accident April 1999.

He was by himself at time – heading home – left 2 friends at top of town – walking to Ballykeele.  Accident happened on North Road.  Hadn’t walked very far.

Using nebuliser – box of 25 nebules would last a month.

Mrs McAuley

Feels he has more pain in shoulder and hips now.

Mr Delargy

Not sure what his mobility needs are now.

Mrs S...

Can’t really walk anywhere now.

Smokes 5 a day now.  Uses 2, sometimes 3 pillows at night – uses a cushion.

Mr Delargy

Guidance and supervision – consider whether high rate mobility appropriate.  No-one had anything to add.”

(v)	The Tribunal’s reasons for its decision in relation to the mobility component were in the following terms: -

“There are grounds for review as noted in the AT3D’Disability Appeal Tribunal regarding care component.  The Department has queried the claimant’s entitlement, at any time, to high rate mobility component.  We have concluded that there is information before the Tribunal which provides reasonable grounds to consider the issue of entitlement to and the rate of entitlement to mobility component, being entries in the General Practitioner records, evidence from the claimant and Mrs S... to us today, and the findings on examination of the Examining Medical Practitioner in his report of 19.7.99 in relation to the claimant’s chest.  The claimant was attending Dr Todd, physician for his lung disease and on 2.9.98 it was noted that “symptoms are a lot better on inhaled steroid”.

Although the claimant’s General Practitioner had indicated that he was short of breath at rest, this was not consistent with the Examining Medical Practitioner findings, and although the claimant had stated in his self-assessment form that he could walk 40 to 50 before stopping due to severe discomfort, this was stated to be in a time of 6 to 10 minutes, which we consider too slow to be credible, and the evidence today indicates that walking up hills, rather than on the flat, would have caused the claimant to have to stop.  We agree with the comments in the appeal writer’s submission at page 7, paragraph 3, and conclude that the claimant’s own estimate of his walking ability was not reliable, and on the medical evidence as a whole, he could have walked a reasonable distance out of doors at a reasonable speed and in a reasonable manner without severe discomfort.

Neither the Examining Medical Practitioner nor the claimant’s General Practitioner had noted any impairment of lower limb function, which would have limited mobility.  We do not consider that the medical evidence indicates any significant change in the claimant’s physical ability to walk since the Road Traffic Accident.  Although his balance is noted to be poor by the Examining Medical Practitioner, he is safely mobile in his home on the flat and could use a walking aid outdoors to reduce the risk of injury of falling.

We are satisfied, however, that due to his cognitive and balance problems that guidance and supervision is required to enable him to take advantage of the faculty of walking out of doors and we accept Dr M...’s comments relating to this in her letter of 3.2.2000.  The evidence does not indicate that the claimant reasonably requires actual physical support when walking out of doors.”

(vi)	The unanimous decision of the Tribunal in relation to the mobility component was in the following terms: -

“There are grounds to review the decision of 29.8.98 awarding higher rate mobility component from and including 4.8.98, being relevant change of circumstances.  The claimant is not entitled to either rate of mobility component from 4.8.98 until 20.7.99 and is entitled to lower rate mobility component only from 21.7.99 having satisfied the conditions of entitlement from 21.4.99.  The period of award is from 21.7.99 to 30.4.2002.  We direct that the award of disability living allowance already paid be treated as paid on account of that now awarded.”

7.	The claimant sought leave to appeal to a Commissioner.  The Legally Qualified Panel Member refused leave to appeal on 17 August 2000.  However, a Commissioner granted leave to appeal on 18 October 2000.

8.	The grounds of appeal set out by Mr Barry McVeigh of the Northern Ireland Association of Citizens Advice Bureau were as follows: -

“1.	The tribunal erred in law by removing the award of the high rate mobility component without an opportunity for an adjournment to enable the claimant and representative to assess the position and produce a further submission and evidence.

The Department’s appeal submission to the tribunal did not cast doubt on the existing entitlement of high rate mobility component and low rate care component.  The tribunal found that there were grounds to review the decision of 29/8/00 awarding the higher rate mobility component.  The claimant and representative were taken by surprise by the tribunal’s actions and not afforded an opportunity of an adjournment to prepare a submission on this new issue.
In CDLA/2929/95, the Commissioner held that the tribunal’s decision “was fundamentally flawed because there was no warning given that the tribunal would consider taking away the award of the mobility component; if that was their intention they should have offered the claimant an adjournment to allow the case in respect of the mobility component to be prepared”.  This is also confirmed in CDLA/13853/1996, CDLA/5793/1997(*80/98) and CSDLA/362/1998”
9.	Examination of the Department’s appeal submission demonstrates that Mr McVeigh is not correct in his comment about the Department’s appeal submission.  In fact the submission included the following words:-

“… although [the mobility] component is not in dispute in this appeal I would ask the Tribunal to consider whether the current award of higher rate mobility component from and including 4.8.98 is appropriate.”

10.	Mrs Gunning, on behalf of the Decision Making and Appeals Unit of the Department for Social Development, made relevant submissions in a letter dated 29 November 2000 commenting on the claimant’s original application for leave to appeal.  She pointed out that Mr McVeigh had referred to decisions of the Commissioners in Great Britain which held that if a Tribunal intends to alter an existing indefinite award the claimant should be offered an adjournment to prepare a case.  She also mentioned that these decisions considered the application of section 33(6) of the Social Security Administration Act 1992 (the Northern Ireland equivalent was section 31(6) of the Social Security Administration (Northern Ireland) Act 1992), which prevented a Tribunal from considering a person’s entitlement to a component which had been awarded for life unless:

(i)	the appeal expressly raised 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.

She also pointed out that Mrs Commissioner Brown in various Northern Ireland decisions (see C70/97(DLA) paragraph 30, C12/98(DLA) paragraph 10, C53/98(DLA) paragraph 20 and C19/99(DLA) paragraph 6-9) held that if a Tribunal is exercising its jurisdiction under section 36(6)(ii) of the Administration Act it must set out the factual basis for its consideration that it had reasonable grounds for believing that current entitlement should not continue and give the claimant the opportunity to comment.

11.	However, section 31(6) was repealed with effect from 18 October 1999 when fundamental changes were introduced into the decision making and appeal process in Social Security matters.  Accordingly, as Mrs Gunning has indicated, when the claimant’s appeal came before the Tribunal on 6 April 2000 there was no legislation in force to restrict the circumstances in which the Tribunal could consider his existing entitlement.  Accordingly she submitted that Mr McVeigh cannot rely on the case law based on section 31(6) (Northern Ireland) or section 33(6) (Great Britain).

12.	However, the issue still remains as to whether the Tribunal ought to have given a warning or suggested an adjournment to allow the claimant’s representative to deal with the possibility of the Tribunal issuing a decision which was less advantageous to the claimant than the extant decision.  The matter is complicated by the fact that the Tribunal varied the decision to some extent in favour of the claimant and to some extent not in his favour.  From 21 July 1999 the claimant’s mobility component has been reduced from the higher rate to the lower rate but the care component has been increased from the lowest rate to the middle rate.  In addition the claimant lost the higher rate mobility component and the lowest rate care component from 4 August 1998 to 20 July 1999. 

13.	Also it is noteworthy that the appeal papers had specifically noted that the mobility issue was going to be raised.  It is also relevant that the claimant, who was represented by an official of the Citizens Advice Bureau, Ballymena, made no application for an adjournment.

14.	Article 13(8)(a) of the Social Security (Northern Ireland) Order 1998 provides that “in deciding an appeal … an Appeal Tribunal … need not consider any issue that is not raised by the appeal.”  This confers a discretion on a Tribunal but, in my view this discretion must be exercised judicially and also, in my view, this provision does not remove the inquisitorial role of a Tribunal which arises from the fact that Tribunals form part of the statutory machinery for investigating claims (see Social Security Legislation 2000 volume III Rowland and White at 1.304).  It is also relevant to bear in mind the following words of Diplock LJ in R v Deputy Industrial Injuries Commissioner [1965] 1 ALL E.R. at page 93 E and F in a reference to the statutory predecessors of the present Tribunal system: -

“Insurance tribunals form part of the statutory machinery for investigating claims, that is, for ascertaining whether the claimant has satisfied the statutory requirements which entitle him to be paid benefit out of the fund.  In such an investigation, neither the insurance officer nor the Minister (both of whom are entitled to be represented before the insurance tribunal) is a party adverse to the claimant.  If an analogy be sought in ordinary litigious procedure, their functions most closely resemble those of amici curiae.  The insurance tribunal is not restricted to accepting or rejecting the respective contentions of the claimant on the one hand and of the insurance officer or Minister on the other.  It is at liberty to form its own view, even though this may not coincide with the contentions of either …”

15.	However in my view Rowland and White are correct in stating at 1.304 that, if an entirely new point is being taken at a hearing, it is necessary for the parties to have the opportunity of dealing with it.  I also take the view that this does not mean that there must be an adjournment in every case because often it ought to be possible for the relevant points to be considered adequately at the hearing.

16.	Close examination of the record of proceedings in relation to the care component makes it clear that the claimant and his representative were never informed of the possibility of the removal of the claimant’s entitlement to the care component.  In the circumstances I conclude, with some reluctance, that the decision made by the Tribunal was sufficiently to the detriment of the claimant that the Tribunal ought have given the claimant or his representative some indication that it was considering removing the care component from 4 
August 1998 to 20 July 1999.  The fact that his care component was increased from 21 July 1999 does not change this circumstance.

17.	On the other hand, the record of proceedings in relation to the mobility component makes it relatively clear that the Department had put the mobility component in issue at the hearing, reinforcing the written submission (of the Department) that had been made available to the Tribunal and to the parties to the same effect.  Accordingly I conclude that the Tribunal did not err in law in considering the mobility component.

18.	Therefore I conclude that the Tribunal erred in law by not making clear that there was an entirely new point being taken at the hearing, namely the possible removal of the care component.  In my view this issue should have been specifically drawn to the attention of the claimant and his representative so that it could have been adequately dealt with by the claimant and his representative, either at the hearing or by the Tribunal giving the claimant an opportunity of an adjournment to prepare a relevant submission on the issue.  In the circumstances I conclude that, in not dealing with these issues, the Tribunal erred in point of law.

19.	An additional point arises which has not been adverted to by either of the parties. It seems from the papers that the claimant was in receipt of Disability Living Allowance up until 3 August 1998.  By virtue of the provisions of section 73(9)(a) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 and regulation 11 (as amended) of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992, where a person becomes entitled to the mobility component of Disability Living Allowance within two years of the last entitlement, the three month qualifying period is deemed to be satisfied.  In the Tribunal’s decision in relation to the mobility component it seems that this provision was not taken into account, as the period of award in relation to the lower rate mobility component was changed from 21 April 1999 (when the conditions of entitlement were satisfied) to 21 July 1999.  In not considering and applying these provisions the Tribunal has also erred in law.  There are similar provisions in relation to the care component (section 72(2)(a) of the Act and regulation 6 of the Regulations) but these provisions do not appear to be relevant in this case in light of the Tribunal’s finding that there is no entitlement to the care component before 21 July 1999.

20.	For the reasons stated I am satisfied that the Tribunal’s decision is erroneous in law.  Accordingly I allow the appeal and set aside the decision of the Tribunal.  Consequently I refer the matter back to a differently constituted Tribunal for a re-hearing.  However, the fact that this appeal has been allowed should not be taken as an indication as to the ultimate success of the claimant’s appeal to a Tribunal.

(Signed):  J A H MARTIN QC

	CHIEF COMMISSIONER

13 SEPTEMBER 2001