Decision No:  C12/01-02(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 10 October 2000

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by myself, by the claimant, against a decision dated 10 October 2000 of an Appeal Tribunal sitting at Newtownards.  That Tribunal had allowed the claimant’s appeal against a decision of an Adjudication Officer dated 4 October 1999.  A decision maker (successor to Adjudication Officer from 18th October 1999) made a decision dated 1 November 1999 which was a decision reconsidering but not revising an earlier Adjudication Officer’s decision dated 4 October 1999.  The decision of 4 October 1999 had reviewed an earlier decision dated 11 February 1995 on foot of which the claimant was awarded the higher rate of the mobility component and middle rate of the care component of Disability Living Allowance from and including 16 January 1995.  The decision of 4 October 1999 reviewed that decision and revised it to disallow both components from and including 4 October 1999.  The Tribunal decision allowing the appeal was to the effect that the claimant was not entitled to the mobility component of Disability Living Allowance from 4 October 1999 and was entitled to the low rate of the care component of that allowance from 4 October 1999 on the basis of having satisfied the cooked main meal test.

2.	The claimant’s grounds of appeal to me were set out on an OSSC1 form received in the Commissioner’s Office on 28 March 2001 and amplified in a letter dated 13 December 2001 from Ms Loughrey of the Law Centre (NI) who has represented the claimant throughout the proceedings before me.  The grounds were:

1.	That the Tribunal focused exclusively on the findings and opinion of the Independent Medical Assessor who examined the claimant on 21 June 2000.

2.	That the Tribunal’s reasons were inadequate in that they did not state why the Tribunal preferred the opinion of the Independent Medical Assessor (IMA) to that of the claimant’s General Practitioner who had examined the claimant one week earlier and concluded that his disability was somewhat greater than that found by the IMA, suggesting a greater level of need.

3.	Observations on the appeal were made by letter dated 16 November 2001 from Mrs Gunning of the Decision Making and Appeals Unit of the Department for Social Development.  I am grateful to both representatives for their assistance in this case.

4.	Mrs Gunning opposed the appeal and submitted with regard to ground one, that the Tribunal recognised that the previous hearing had been adjourned to obtain expert medical opinion, as there was a conflict in medical evidence.  She further submitted (relying on Commissioner’s decision C48/97(IB)), that to determine the appeal, this Tribunal (which was differently constituted to the one which had adjourned to obtain the IMA’s report) was required to consider afresh all the evidence presented in the case.  In Mrs Gunning’s submission it was apparent from the Record of Proceedings that it did so.

5.	Mrs Gunning submitted with regard to ground two that the Tribunal accepted that the IMA’s report was an independent view of the claimant formed following an extensive interview and examination and the Tribunal considered that it should only be rejected if the IMA’s views were obviously inaccurate in terms of the claimant’s condition.  The Tribunal had stated it was satisfied that those views were a fair reflection of the claimant’s condition.  In Mrs Gunning’s submission the reasons for decision implied that the other evidence was rejected because the Tribunal felt it was not a fair reflection of his condition.  She further submitted that the Tribunal had given adequate reasons for accepting the IMA’s report i.e. that it was an independent view given following extensive interview and examination.  

6.	For clarity’s sake, I set out hereunder the “Reasons for Decision” recorded by the Tribunal:

“The Adjudication Officer (AO) in this case has reviewed the life time award of high rate mobility and middle rate care component on the basis of a change of circumstances i.e. that claimant’s condition has improved based on medical evidence from the Examining Medical Practitioner (10.9.1999) and the General Practitioner’s report of 18.5.99.  He relied particularly on the Examining Medical Practitioner’s report when disallowing both components despite the fact that the General Practitioner in his report indicated that an award of low rate mobility might well have been appropriate.  We feel that the Adjudication Officer was right to review the award on this basis.  Because of the clear conflict in the medical evidence the previous Tribunal adjourned for the purposes of a report from a Independent Medical Assessor (IMA).  This has now been provided.  We accept the assessment by the Independent Medical Assessor.  It is an independent view of claimant formed following an extensive interview and examination.  There seems little point in adjourning for this purpose if we then decide to ignore his views.  They should only be rejected if they are so obviously inaccurate in terms of claimant’s condition.  We do not feel that they are such.  We are satisfied that they are a fair reflection of claimant’s condition not just at the date of the Tribunal but also at the date of the disallowance – viz 4.10.99.  Certainly claimant has not made any case as to a fluctuation in his condition.  If we accept the views of the Independent Medical Assessor we must therefore dismiss the appeal in relation to the mobility component and replace the middle rate care award with one for the low rate on the basis of claimant’s inability to prepare a main cooked meal.  In taking this decision we are satisfied that claimant walked 50-60 yards on the day of the examination and accept Dr Baird’s opinion that he could walk further at a reasonable pace and in a reasonable gait and time.  The process of walking would not be life threatening nor would it lead to a deterioration in claimant’s condition.”

7.	In its Record of Proceedings the Tribunal recorded under the heading “Documents Considered” that it had considered the written submission, the General Practitioners notes and records, a photograph, a letter from Dr Armstrong dated 7 September 2000, a letter from Dr Mathison dated 14 June 2000 [this last, I take to be the report of the examination referred to by the claimant in his grounds of appeal] and a letter from Dr Armstrong dated 1 September 2000.  The “written submission” of the decision maker had various documents tabbed 1-13 attached to it and I accept that the consideration of the written submission also included consideration of these documents.

8.	I have no reason to doubt and I accept that the Tribunal did consider the documents, which it stated it considered.  I am concerned that there is no record in the Record of Proceedings that it was explained to the claimant that this was a complete re-hearing.  That absence would not necessarily in itself constitute an error of law if the Tribunal did conduct such a re-hearing.

9.	However, I have some concern as to whether a complete rehearing was conducted in this case and as a matter of good practice think a differently constituted Tribunal following an adjournment should explain and clearly record that it has explained that it is conducting a re-hearing.  I need deal no further with that matter here, however, as I am setting the decision aside for other reasons.

10.	My main concern in this matter is as to the manner in which the Tribunal approached the report of the IMA.  The Tribunal states as part of its reasoning:

	“We accept the assessment by the Independent Medical Assessor.  It is an independent view of claimant formed following an extensive interview and examination.  There seems little point in adjourning for this purpose if we then decide to ignore his views.  They should only be rejected if they are so obviously inaccurate in terms of claimant’s condition.  We do not feel that they are such.  We are satisfied they are a fair reflection of claimant’s condition not just at the date of the Tribunal but also at the date of the disallowance – viz 4.10.99...”
 
11.	This reasoning indicates that the Tribunal was not approaching the evidence from the IMA with an open mind.  Certainly the Tribunal has indicated the possibility of rejection of the IMA’s evidence and has not therefore considered itself absolutely bound by that evidence.  It has, however, expressed an attitude to the IMA’s evidence which indicates a favourable view of that evidence before it is compared and contrasted with the other evidence.  The Tribunal having considered all the evidence would have been perfectly entitled to prefer the IMA’s evidence on the basis that it was independent.  It was independent, it was not produced by either of the parties and the IMA was disinterested in the outcome.  Those are valid factors to be taken into consideration in the assessment of evidence and had that been the total of the Tribunal’s reasoning I would not have found it to have erred in law.  The other medical evidence was adduced by one or other of the parties and in the case of the General Practitioner’s letters does not appear to contain the recording of informal observation and expression of objective opinion on care and mobility needs related to the benefit entitlement which is contained in the IMA’s report.  The Tribunal would have been quite entitled to prefer and rely on the IMA’s report, provided that it had preserved an open mind in its approach to the evidence.  No piece of evidence is to be given a favourable status at the outset and before assessment as it appears was done in this case.  The Tribunal to my mind was saying to itself before it looked at the IMA’s report or the other evidence:

	“We are bound to accept the IMA’s report unless the parties can show it is obviously inaccurate.”

That is an error of law and I set the Tribunal’s decision aside as in error of law for that reason.

12.	For completeness sake I would wish to deal with a further matter raised by Ms Loughrey in the grounds of appeal.  She mentioned that the GP had concluded (it seems in his letter of 14 June 2000) that the claimant’s disability was greater than that found by the Independent Medical Assessor, suggesting a greater level of need.  Having closely examined both the letter of 14 June 2000 and the Independent Medical Assessor’s report, I am uncertain as to what is meant by Ms Loughrey in terms of disability in this context.  However I would state that the GP in his letter of 14 June 2000 did not seem to give any objective opinion as to how he objectively assessed the claimant to be affected by the conditions found on clinical examination.  Neither did he record whether or not informal and formal observations agree. The IMA, of course did.  Any discrepancies in clinical findings in the two reports may of course be raised to the new Tribunal.  My impression was that they were not very extensive but that is for the new Tribunal, with its expertise, to decide and I leave the matter to that new Tribunal.

13.	I did consider giving the decision, which the Tribunal should have given.  However, I have decided not to do so as I would wish the full evidence to be considered by the new Tribunal as it will have a range of expertise, having a Medically Qualified Panel Member and a Panel Member with experience of the problems of disabled persons as well as a Legally Qualified Panel Member.  I consider it would be preferable to have the evidence assessed by that body.  The claimant should ensure that any medical or other evidence which he wishes to produce is before the Tribunal at the next hearing and should remember that any evidence must be relevant to the situation as at the date of the decision under appeal.  It should also be available to the Department’s representative in adequate time.

14.	I direct that no person who was a member of either Tribunal which heard this case should be a member of the new Tribunal.  I further direct that the new Tribunal conduct a full rehearing of this case and make its own assessment of the evidence.  This should include an assessment of the medical evidence and the evidence of the claimant.

15.	One further matter remains I have not received argument on it and my views set out below are not therefore concluded.  The Department’s submission to the original Tribunal had referred to the Adjudication Officer’s decision of 4 October 1999 being a nullity because it failed to record certain matters.  I fail to see how a failure to record certain matters can of itself render the decision a nullity.  Either jurisdiction exists or it does not.  A failure to record is no more than that.  It does not of itself make the decision a nullity.  It appears that the Tribunal of 10 October 2000 also took this view and neither representative has made any point with regard thereto.

16.	 I direct both representatives to comment on this matter to the new Tribunal and if either wishes to continue to make the point that the decision of 4 October 1999 was a nullity, a reasoned written submission to this effect should be prepared and submitted to the Tribunal and to the other party in adequate time.

17.	The claimant’s appeal is allowed.

(Signed):  M F BROWN

	COMMISSIONER

	20 FEBRUARY 2002