C16/00-01(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 4 April 2000

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by a Commissioner, by the claimant against a decision dated 4th April 2000 of an Appeal Tribunal sitting at L…  That Tribunal had disallowed the claimant’s appeal in connection with Disability Living Allowance and decided that the claimant was not entitled to either component of that allowance from and including 27th January 1999.  

2.	For clarity’s sake I recite here some of the background to the Tribunal decision.  The claimant had applied for Disability Living Allowance on 3rd March 1999 stating that he suffered from a brain haemorrhage, headaches, dizzy spells and poor balance.  A report was completed by his General Practitioner on 14th April 1999 (which was before the Tribunal).  In that report the General Practitioner stated that the claimant could administer his own medication, could safely be left unsupervised by day and night, needed supervision of medication and emotional support, was not recorded as needing any assistance in relation to a variety of activities including dressing and undressing, using stairs, walking indoors, preparing and cooking a meal, that he was unaware of any difficulty that his patient experienced while walking on level ground, that there was no history of falls.  

3.	On 11th May 1999 the claimant was examined by an Examining Medical Practitioner (EMP).  This report was also before the Tribunal.  The EMP recorded the claimant as stating that he developed pain in his left leg after walking half a mile but would stop and rest and then could walk for another similar distance.  The claimant further informed the EMP that he got dizzy with exercise and had fainted 5/6 times since January 1999 so that now his mother would accompany him when he went out.  The claimant also informed the EMP that he could attend to all his own daily care (including medication) save that his mother shaved him because he could take cramps in his right hand.  The claimant also stated that his left leg was weak and he tended to go over on his left ankle and that he had fallen down a flight of stairs twice since January.  He stated that he was aware of all dangers and that the faints were associated with the dizzy spells, which were worsened by exercise, and as a result his mother would now accompany him when out of doors.  The claimant also reported to the EMP mood swings and being quick to anger with loss of temper almost every day.  He stated further that he was verbally aggressive but not physically aggressive.  The claimant attributed the mood swings and anger to the cerebral haemorrhage and not to his alcohol intake.

4.	On examination the EMP reported the clinical findings of slight weakness in left lower limb but no problem with tone, normal coordination, reflexes and sensation.  He also reported normal right limb and both arms normal.  The EMP was of the opinion that walking distance was of at least half a mile at normal to slow pace before the onset of severe discomfort with a normal gait and good balance while walking.  The EMP was also of the view that there was no need for guidance or supervision when walking outdoors along an unfamiliar route most of the time.  He was also of the view that the claimant could attend to all the listed functions of daily life including preparing and cooking a meal and that while he had had falls he now paced himself better and this would reduce the risk of injury.  He stated that the claimant was fully mentally component aware of common dangers, was verbally aggressive but not physically aggressive to others.  He also stated that the claimant had while at his ex-wife’s house put his fist through a wall and pulled a door off its hinges.  He was of the opinion that the claimant was not subject to inflicting self-injury or attempting suicide.  He also expressed the view that the mood swings, loss of temper and enuresis might be due to the alcohol intake.  He also did not feel that the claimant’s medication now required to be supervised nor that emotional support was now needed.  The EMP stated there had been no injuries because of the faints which mostly occurred out of doors with exertion and was of the view that the claimant could cope without daily emotional support.  He also expected improvement in the claimant’s condition and did not expect any problems beyond six months and did not feel that the dizziness was at a level to merit supervision.  He recorded further that the claimant had had no injuries in any of his falls.  The EMP expressed the view that the claimant somewhat overstated his needs.

5.	Following the receipt of the medical reports the Department made a decision disallowing the claim from and including 27th January 1999.  This decision was dated 22nd May 1999 and an in time request for the decision to be reconsidered was received.  The decision was reconsidered but on 16th December 1999 the Department issued a further decision stating that it was not prepared to revise the original decision.  This decision of 16th December 1999 was then appealed to the Tribunal.

6.	The claimant’s grounds of appeal to the Tribunal were that he believed that he had a right to Disability Living Allowance.  After considering that and how much his life had changed the claimant felt that he could not do the same things in his life now and therefore wished to appeal.  He did not seek a hearing of the appeal so that the Tribunal dealt with the matter as it was entitled to do on the basis of the papers.

7.	With leave of the Chief Commissioner the claimant appealed the Tribunal’s decision, his grounds of appeal being that: -

1.	He could not remember stating that he could walk half a mile without severe discomfort because he could not do that.

2.	That he was not allowed to cook for himself because his memory was not very good and he burnt things.

3.	That he suffered severe aggressive mood swings was depressed and attended a psychiatrist.

4.	That he was not the same person as he had previously been and feared that his prospects of employment were small.

8.	The Department was represented by Mr Fletcher of the Decision Making and Appeals Unit.  By letter of 6th March 2001 Mr Fletcher opposed the appeal.  He submitted that the Tribunal had considered that the claimant was exaggerating in that it considered the medical evidence did not support his mentioned care needs.  He further submitted that the Tribunal was entitled, on the evidence, to this conclusion.  He submitted also that in light of the Tribunal’s evidential assessment and in light of the medical evidence there was no need for it to go further in its reasons in connection with the question of supervision.

9.	There was correspondence in relation to review which in the event has proved irrelevant and other correspondence in response to a letter dated 26th February 2001 from the Commissioners Office, which I have considered.

10.	It is important to indicate firstly that the bare fact that a person has suffered from a particular unfortunate condition or that his life has changed as a result is not of itself necessarily sufficient to satisfy the conditions for Disability Living Allowance.  The conditions which must be satisfied are very specific.  The conditions for the higher rate mobility component (with exceptions which do not appear to be relevant here) relate to those who are either completely unable or virtually unable to walk.  The requirements for the lower rate of the mobility component relate to persons who can walk but who require guidance or supervision most of the time when walking on unfamiliar routes.  The requirements for the care component relate to those who are in need of attention in connection with bodily functions or who require supervision in order to avoid substantial danger to themselves or others or need help with meals.  This supervision in relation to day time requires to be continual or at night requires to be for prolonged periods or at frequent intervals.

11.	In addition the requirements have to be satisfied for a period of three months immediately preceding the date on which the award of the component would begin and be likely to remain satisfied for a period of six months beginning with that date.

12.	It is also important to note that the Tribunal was dealing with a claim which had been made some two and half months after the claimant suffered the cerebral haemorrhage.  It does not appear, from the claim papers, that there was any contention made to the Tribunal that the claimant had suffered the relevant problems at anytime prior to the date of this haemorrhage.  The haemorrhage seems to have taken place on or about 14th January 1999 as that is when the claimant went into hospital.

13.	The Tribunal when dealing with the matter was therefore dealing with a situation where the medical evidence after the date of claim was not, as the Tribunal stated, supportive of the level of needs mentioned in the claim form.  In addition to the medical reports mentioned above the Tribunal also had the claimant’s General Practitioner’s records and it has obviously perused these.  The claimant not having sought a hearing the Tribunal has dealt with the matter on the papers.  This being a fresh claim for benefit the Tribunal had to decide if the claimant satisfied the conditions.  If it was left not knowing if he did or not it had to dismiss the appeal.  

14.	I note that in his appeal to the Tribunal the claimant took no issue with the medical evidence.

15.	The Tribunal has obviously relied on the medical evidence and as that evidence was more up to date than the claim form its so doing is quite understandable particularly as there was medical evidence which indicated an improving situation.  In addition the fact that the medical evidence is or is not supportive of the stated levels of need is a factor which a Tribunal is entitled to rely on as one of the reasons for its decision.  I can find no evidence in this decision of the Tribunal having made a generalised assumption that a claimant’s uncorroborated evidence cannot be relied on.  The Tribunal obviously decided that in this case it was not prepared to find the conditions satisfied in circumstances where the medical evidence did not support what the claimant stated to be his level of need.  The Tribunal is perfectly entitled to take this view and particularly in this present case where improvement after the date of claim was likely and when the medical evidence was indicating that improvement had in fact taken place.

16.	Relying on that evidence as it did the Tribunal stated, “Whilst the appellant did have to have unfortunate surgery it is our view that there is no question of his satisfying the three months qualifying period plus likely to satisfy the six months perspective [sic] period.”  It has recited the medical evidence which it considered relevant and the fact that some of the evidence was from the General Practitioner has obviously weighed with the Tribunal as that is mentioned specifically.

17.	The Tribunal does not indicate whether it accepted or rejected the claimant’s evidence.  What it has clearly done is to give considerable weight to the medical evidence which was more up to date than the claim form.  Even taking the claimant’s signed statement to the EMP at its height it appears very doubtful that the claimant could have been considered to satisfy the conditions so no specific assessment of that evidence was necessary.  When the Tribunal also took the medical evidence into account it can be clearly seen that the Tribunal was entitled to its conclusion that the conditions were not satisfied.  As it stated the medical evidence did not indicate a significant problem with dizziness (with which faints were associated) and his own GP indicated no history of falls.

18.	It is true that verbal aggression was mentioned and two incidents of damage to property at the claimant’s estranged wife’s home.  However, the medical evidence was to the effect that the claimant was not physically aggressive, that there was no tendency to self-harm, that the claimant could be safely left unsupervised.  The claimant himself told the EMP that he was not physically aggressive and the EMP was uncertain that these incidents were attributable to disablement.  Against that background I do not see any necessity for the Tribunal to explore further the question of supervision needs.  The legislative provisions in relation to those needs relate to continual supervision being required “throughout the day in order to avoid substantial danger to himself or others” or to someone being awake and watching over a claimant by night for the same reason.  On the evidence the conclusion that this was not satisfied was open to the Tribunal.  

19.	The Tribunal was entitled to consider the appeal on the papers, the claimant not having requested a hearing and it does not appear to me that there was any issue either raised or apparent which should have led the Tribunal Chairman to direct a hearing.  The only two instances of actual physical aggression occurred in the claimant’s estranged wife’s home and were not of there being a risk of danger to any person as the legislation required.  It is unfortunate that the claimant did not seek a hearing but that was his decision and I can see no error in the Tribunal proceeding as it did on the papers.

20.	As regards the grounds of appeal raised by the claimant most of these are not points of law but are in fact indicative of a desire to have the matter reheard.  This cannot be done unless the Tribunal has erred in law.  I am unable to ascertain any such error in law and I cannot therefore set the Tribunal’s decision aside.  As I stated above the claimant might have been better to have sought a hearing and presented his case.  However, as he did not do so and as the Tribunal was entitled to deal with the matter on the papers and as its conclusions were quite supportable on the evidence, and as the reasons why the Tribunal reached the decision which it did are quite clear I am unable to ascertain any error of law in the decision.  There is certainly no indication that any evidence was ignored or that any wrong principle of law was applied.  The Tribunal having considered all the evidence simply found itself unable to find in the claimant’s favour, the onus being on the claimant and the medical evidence being unsupportive.  This is a reasonable conclusion the onus being on the claimant.  It is particularly so against the background of a situation where the claimant’s state would be expected to and indeed appeared to have improved since completion of the claim form in March 1999 I can find no error of law in the decision.  I therefore dismiss this appeal.

21.	The claimant produced to me further medical evidence.  It was not before the Tribunal which therefore did not err by not taking it into account.  It was in the form of a letter dated 13th March 2001 from his General Practitioner.  It was written in response to a letter from the Commissioners Office dated 26th February 2001 to the claimant.  If the claimant considers that he now satisfies any of the conditions for receipt of Disability Living Allowance he may wish to consider re-claiming.  I make no comment on the prospects of success of any such claim.  However if a claimant has to prove his case on appeal he is usually more likely to succeed if he requests and attends a hearing.

MOYA F BROWN
COMMISSIONER

9 JULY 2001