Decision No: C6/02-03(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Application by the claimant for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 8 November 2000

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application, by the claimant, for leave to appeal against a decision dated 8 November 2000 of an Appeal Tribunal sitting at Belfast.  That Tribunal had disallowed the claimant’s appeal in relation to Disability Living Allowance and had found that the claimant was not entitled to any rate of either component of that Allowance from and including 8 October 1999.  The claimant’s grounds of appeal were set out on an OSSC1 (NI) form dated 16 May 2001 and letter dated 30 May 2001, which were received in the Commissioner’s office on 1 June 2001.  The claimant also sent a further letter dated 18 January 2002 and a skeleton argument and submission was made on his behalf by letter dated 3 May 2002 from Miss Loughrey of the Law Centre (NI), who became his representative in the application and appeal to me.  Observations on the application were made by Mrs Gunning of the Decision Making and Appeals Unit of the Department for Social Development by letter dated 29 April 2002.  I held a hearing which Mrs Gunning and Miss Loughrey attended but which the claimant did not attend.  I am obliged to both representatives for their assistance in this case.

2.	The Record of Proceedings of the Tribunal was not available to either representative nor to me, the claimant not having made application for that Record within the applicable time limit for so doing.

3.	The claimant’s own representations to me consisted largely of an assertion that the decision was wrong on factual grounds.  The claimant also considered that the Tribunal had erred in that it had not medically examined him and also that the Tribunal had not had time to consider his medical records.  Miss Loughrey essentially had four grounds of appeal.
4.	The first ground related to the adequacy of the Tribunal’s reasoning with relation to the frequency of the claimant’s asthma attacks.  Basing its contention on decision C2/01-02(DLA) and in particular paragraph 15 thereof, the Law Centre submitted that the Tribunal had not followed the guidance given by the Commissioner in that case in that it had not recorded findings as to how frequently the relevant disabling conditions occurred within a selected period, the effects on the claimant and the condition of the claimant between attacks.  It had failed to ascertain the frequency of asthmatic attacks, how they affected the claimant and how he was affected between attacks.

5.	Miss Loughrey’s second ground of appeal was that the Tribunal had failed to correctly apply Regulation 12(4)(a) of the Disability Living Allowance Regulations (Northern Ireland) 1992 in its consideration of the case.  That provision is as follows:-

“(4) Except in a case to which paragraph (1)(b) [not relevant] applies, a person is to be taken not to satisfy the conditions mentioned in section 73 (1)(a) if he – 	

(a)	is not unable or virtually unable to walk with a prosthesis or an artificial aid which he habitually wears or uses,”

The Law Centre submitted that, whilst not expressly stated in the above provision, it should be presumed that the measurement of a person’s ability to walk with the use of a prosthesis or artificial aid which he habitually wore was one which was well fitting.  It submitted that the claimant had been fitted with 5 or 6 prostheses which had been ill fitting, resulting in him suffering discomfort, pain, pressure sores, bruising, skin eruption and swelling around the site of the stump.  This had been described in the self-assessment form which the claimant had completed in connection with his claim for the Allowance.  Miss Loughrey submitted that, based on this information, the claimant might reasonably be expected to suffer significant mobility problems, bringing him within the ambit of the requisite test for high rate mobility.  She submitted that the Tribunal should have considered whether the claimant could walk or whether his ability to progress was by means of some other locomotion.  Miss Loughrey referred to decision R(M)2/89 and in particular paragraphs 8-10 thereof as to the correct interpretation of the question and of the regulation itself.  Apart from its recording that the claimant was unable to wear his prosthesis 4-5 days per month the Tribunal, in the Law Centre’s submission, had not made an evidential assessment in connection with the claimant’s ability to wear the prosthesis at other times and whether in fact it was a prosthesis habitually worn.  The Law Centre contended that the Tribunal had given insufficient regard to the statutory test in the regulation and its application to the facts in the claimant’s case.

6.	Miss Loughrey’s third ground of appeal was that the Tribunal had failed to apply the tests set out in Section 73(1)(a) of the Social Security (Contributions & Benefits) (Northern Ireland) Act 1992 and regulation 12(1)(a)(ii) of the said Disability Living Allowance Regulations.  She submitted that the Tribunal had not had sufficient regard to the speed at which the claimant could walk and the manner in which he could walk.  The Tribunal, in her view, had overlooked the fact that the Examining Medical Practitioner had recorded that the claimant waddled.  The Law Centre submitted that rather than walking the claimant made progress by means of other locomotion and that the Tribunal had not taken account of the claimant’s physical condition as a whole in that it had not addressed the degree of discomfort experienced on the four criteria mentioned in Regulation 12(1)(a)(ii), these being distance, speed, length of time and manner.  The Tribunal had noted in its reasons that the claimant on his own evidence rested up to 3 times when walking a distance of 200 yards but had given no indication in its findings of how long he was required to rest after walking this distance.  It was also not possible to ascertain from the reasons the point at which he experienced severe discomfort.  In Miss Loughrey’s submission the claimant’s own evidence was that he had constant severe discomfort but the Tribunal’s reasons offered no insight into its assessment of the discomfort he would have experienced other than that he could walk a reasonable distance, in a reasonable time and in a reasonable manner before the onset of severe discomfort.  In light of the evidence before it the Tribunal should have given account to all the above four factors and Miss Loughrey submitted that it did not fully address the relevance of all four.

7.	The fourth ground of appeal was that the Tribunal had, in dealing with what was essentially a fluctuating condition, failed to follow the guidance provided at paragraph 11 of decision C58/98(DLA) and failed to adopt the “broad brush” approach suggested therein.

8.	Mrs Gunning opposed the appeal.  With relation to the claimant’s submissions as to the non-examining of his stump and the medical records not having been available in sufficient time for the Tribunal to study them, Mrs Gunning stated that the Tribunal was forbidden to carry out a physical examination in cases relating to entitlement to Disability Living Allowance.  As regards the claimant’s allegations that he had recently fallen, Mrs Gunning submitted that the Tribunal could only consider his condition at the date of the decision under appeal, i.e. 25 February 2000.  She therefore submitted that there was no merit in relation to these points.  As regards the claimant’s submission that the Tribunal had not had enough time to study his medical records, Mrs Gunning was unable to comment as there was no Record of Proceedings available and she was not present at the hearing.

9.	As regards the claimant’s contention that the decision was factually incorrect and that the Tribunal had failed to look at the whole picture of his disability and health, Mrs Gunning stated that there was no Record of Proceedings available but the reasons for the decision would indicate that the Tribunal took account of the Examining Medical Practitioner’s report, the General Practitioner’s records and the evidence from the claimant.  She submitted that the Tribunal had explained why it decided as it did, that the decision was sustainable on the evidence and accordingly she submitted that there was no merit in this point.

10.	I should mention at the outset that I am in agreement with Mrs Gunning in relation to the matter of the medical examination.  Miss Loughrey indeed did not pursue this ground of appeal conceding very properly that the Tribunal was not entitled to examine the claimant.

11.	At hearing Miss Loughrey had little to add to the arguments already put forward in writing but she did refer to CDLA97/2001, paragraph 14 and submitted that on the 4-5 days when the claimant was unable to wear his prosthesis his ability to walk did not constitute walking.  On the other days of the month the Tribunal had to consider his walking ability.  Miss Loughrey conceded that she was handicapped by the absence of the Record of Proceedings.  Miss Loughrey was unable to refer me to any authority for her assertion that the prosthesis habitually worn had to be well fitting.  She conceded that she did not know what evidence the claimant had given to the Tribunal as regards his prosthesis but he had told her that for 4-5 days per month he did not wear it and would leave it off for part of other days.  The claimant did not remember what he had said at the Tribunal.

12.	As regards her second ground, in response to my question Miss Loughrey readily conceded that she did not know what evidence the claimant had given to the Tribunal as regards his prosthesis.  As regards her third ground, Miss Loughrey, again in response to questioning, conceded that waddling did not necessarily suggest poor balance that people often adopted that gate without poor balance but submitted that the Tribunal had erred in not addressing the question of falls.  She considered it hard to reconcile the Examining Medical Practitioner’s statement and his note that the claimant had good balance with the claimant’s evidence that he had recent falls.

13.	As regards her fourth ground, Miss Loughrey submitted that the Examining Medical Practitioner had not conducted a walking test and that his report was based on medical opinion rather than clinical findings.  The Tribunal appeared to have founded its finding that the claimant could walk 200 yards in 3-4 minutes on that report.  The report contained a statement that the claimant had stated that he walked to his mother’s house a distance of some 150-200 yards but the claimant stated that he had not walked that distance in eight years.  Miss Loughrey stated that she had the impression that the Tribunal relied more on the claimant’s evidence before it on the day of the hearing than on the documentary evidence.  In response to my question she admitted that this was not an error on the Tribunal’s part but submitted that all the evidence had not been weighed.

14.	As regards her grounds three and four, Miss Loughrey submitted that the fact that the claimant worked as a chef at the time of the hearing appeared to have influenced the Tribunal.  His so working was not a bar to receipt of the Allowance.  She did not dispute that the Tribunal was entitled to take the work as a chef into account but did not know if it took into account the activities of being a chef, as opposed to the mere fact of his so working.  Miss Loughrey submitted that the claimant did not stand for the entire four-hour shift as a chef but conceded that she did not know what he had told the Tribunal and that in the absence of the Record of Proceedings there was no error of law necessarily indicated in this respect.

15.	At hearing Mrs Gunning submitted that in R(M)2/89 the Commissioner, in remitting that case, had directed the Tribunal to decide whether or not there was habitual use of the prosthesis and on the walking ability with it.  In this case the evidence was that the claimant was able to wear the prosthesis and did wear it except on 4 or 5 days per month.  The test was of being unable or virtually unable to walk.  The Tribunal had found the claimant to be able to walk 200 yards before the onset of severe discomfort in 3-4 minutes and in a reasonable manner.  In Mrs Gunning’s view that was not compatible with a conclusion of virtual inability to walk and the Tribunal had not erred in this respect.

16.	With regard to the evidence relating to falls in Mrs Gunning’s submission, that appeared to relate to an incident which occurred at night when the claimant did not have the prosthesis fitted and the Tribunal considered it to be a one-off event.  Mrs Gunning accepted that the Examining Medical Practitioner did not actually see the claimant walk 200 yards but his opinion was based on him having seen and examined the claimant and the claimant having told him that he could walk for 150-200 yards on the flat.

17.	In addition, in Mrs Gunning’s submission, it could not be ignored that the claimant worked as a chef and the reasons indicate that he told the Tribunal that he stood for a considerable time on each shift of his working day.

18.	In Mrs Gunning’s submission, the Tribunal’s decision that the claimant did not satisfy the test was sustainable on the evidence.  As regards falls generally, the Tribunal appeared to have relied on the Examining Medical Practitioner’s report and that, in Mrs Gunning’s view, indicated that falling was not a regular occurrence or a particular problem.

19.	I grant leave to appeal and with the consent of both representatives treat the application as an appeal and proceed to determine any questions arising thereon as though they arose on appeal.

20.	I set out below the Tribunal’s statement of the reasons for its decision.  As regards the mobility component the Tribunal stated:

“The tribunal accept that [the claimant] following the loss of his leg has a serious disablement, we accept that it impacts on his ability to secure life assurance, mortgages, loans etc.  However we feel that whilst left with walking disabilities as a result of his accident, it cannot be said that he is virtually unable to walk.  We believe, that with the use of his appropriate aids (ie an artificial leg and crutches) he can walk a reasonable distance in a reasonable time in a reasonable manner before the onset of severe discomfort.  We note that he also has asthma but his General Practitioner record these attacks to be infrequent.
	
We feel the Examining Medical Practitioner’s report indicating a walking ability of 200 yards in 3-4 minutes is reasonable and note that at todays hearing [the claimant] states he can walk 200 yards to his mother’s house with up to 3 stops.  Given Commissioner’s decisions C16/98(DLA) and (SDLA)252/94, 3 stops within 200 yards would still constitute a reasonable walking distance and would not constitute a virtual inability to walk.

Further we cannot overlook the fact that [the claimant]’s job as a chef would entail him standing for long periods of time.  He states he is on his feet 3-4 hours at work.  We cannot correlate an ability to stand for such a long period with a claim to be unable to walk only short distances at a time, especially for so long a period as up to 3-4 hours.

[The claimant] is mentally clear and alert and aware of common dangers.  We note the Examining Medical Practitioner’s report that his balance is good.  We believe that with the use of his crutches out of doors any propensity towards falling would be reduced.  We cannot see why [the claimant] would require guidance or supervision out of doors on unfamiliar routes.  We see no reason why [the claimant] would be unable to identify objects such as manhole covers himself and take necessary avoiding action.

We note in any event that the claimant only claims supervisory needs in his claim form on 4-5 days per month.  Even if these needs were accepted they would not satisfy the qualifying and prospective tests necessary for an award of low rate mobility component.”

	As regards the care component the Tribunal stated:

“The claimant by his own evidence is capable of attending all of his bodily functions, unaided, by both day and night.  He confirms that he is able to cook a meal for himself.

His partners obtaining for him during the night an occasional glass of water or medication if he fails to bring it upstairs is attention which would neither be repeated or prolonged.

[The claimant] is clear and alert and aware of common dangers.  He does not require supervision either by day or night to avoid substantial danger to himself or others.

We note a fall downstairs resulting in a toe fracture but believe this to be a one off fall resulting in serious injury as opposed to a regular occurrence.  We note the Examining Medical Practitioner’s comments that he has good balance.”

21.	It is quite clear to me that the Tribunal’s findings are based on the Tribunal’s assessment of the claimant’s walking ability.  It does not appear to have made findings on what should be his ability but on what the actual ability was.  On the basis of those findings I consider that the Tribunal’s conclusion that the claimant was not virtually unable to walk was sustainable.  The Tribunal has considered the speed, the distance, the length of time and the manner in which the claimant can walk before severe discomfort and its findings thereon are sustainable on the evidence.  I can ascertain no error of law in that respect.

22.	I can similarly ascertain no inadequacy in the Tribunal’s reasoning as regards either rate of the care component.  The Tribunal has, in my view, clearly explained its assessment on the evidence and on the accepted evidence its conclusions are reasonable.  It has ascertained that asthmatic attacks are infrequent and I can see no reason why it needs to go into any further detail.  Indeed this finding would seem to indicate that the Tribunal did adopt the broad brush approach in determining the claimant’s care needs.  It does not appear to me that the Tribunal failed to adopt the approach indicated at paragraph 15 of decision C2/01-02(DLA).  Its findings quite obviously relate to the situation most of the time for the claimant and that being the case it is quite obvious that the broad brush approach has been adopted.  The claimant’s own evidence would appear to have been to the effect that he could attend to all his own bodily functions both day and night, could make a meal and did not require supervision most of the time.

23.	The Tribunal was entitled to take into consideration, as it did, the fact that the claimant held down a job as a chef and the demands of that job.  In light of its findings I think it did consider the demands of his job.  The claimant’s own evidence to the Examining Medical Practitioner would not indicate that he required attention or supervision and the Tribunal’s conclusion that he did not require either appears to be supportable on the accepted evidence.

24.	As regards ground two and the use of the prosthesis I do not accept Miss Loughrey’s contention that the prosthesis referred to in regulation 12(4)(a) must be one which is well fitting.  There is no provision in regulation 12(4)(a) so stating.  I can see no reason to read one into the provision.  Indeed that provision states that if the claimant habitually uses the prosthesis his walking ability with it must be taken into account.  In this case it does appear that the claimant did habitually use the prosthesis.  I do not know the claimant’s full evidence to the Tribunal but even on the evidence which I have available it is quite apparent that the claimant made regular use of the prosthesis and that it appears that it was used most days in any given month.  I can see no error in the Tribunal’s implicit conclusion that the claimant habitually used the prosthesis.

25.	As regards the application of the tests in section 73(1)(a) of the Act and regulation 12(1)(a)(ii) of the said Regulations it does not appear to me that the Tribunal failed to take into consideration any of the factors delineated therein.  It appears to me that the finding, that the claimant was able with the use of his artificial leg and crutches to walk a reasonable distance in a reasonable time in a reasonable manner before the onset of severe discomfort, was sustainable on the evidence before the Tribunal.  It does not appear to me that the Tribunal was taking into consideration anything other than walking with alternate legs bearing weight, one of the legs being the artificial one.  Indeed the finding that the walking was with the use of the artificial leg would indicate that that was the case.  It therefore seems to me that this case is quite distinct from that indicated in CDLA97/2001.  There was no indication in this case that with the use of his artificial limb the claimant merely swung through on crutches nor that on most days per month the claimant could not place any weight on his prosthesis.  Indeed the evidence would indicate that he did bear weight on it on most days per month.  I can find no error of law in relation to this ground.

26.	Miss Loughrey mentions that there is no finding of fact as to the length of time for which the claimant would have to rest after the walking of 200 yards.  That is correct but the findings on walking are as to walking before the onset of severe discomfort which would be the most likely reason for resting.  On the evidence, I cannot ascertain that the necessity to rest for any length of time after walking was a matter which was raised or apparent as an issue.  It should also be remembered that what was being considered here was virtual inability to walk and if the existing evidence showed that the ability to walk was too great to fall within virtual inability to walk there was no real need for the Tribunal to explore that matter further.  I am unable, in the absence of the Record of Proceedings, to ascertain whether or not any evidence was taken at hearing in this respect or whether the matter was ever raised at hearing but certainly on the evidence before the Tribunal it does not appear to me to be a live issue.

27.	As regards ground four I have already indicated that in my view the Tribunal did adopt the “broad brush approach” and I do not think that there was any error in this respect.  The Tribunal has quite obviously taken into consideration the days when the claimant cannot wear the prosthesis and it has relied on the Examining Medical Practitioner’s report.  This report is largely based on the claimant’s own evidence, an examination and observations and it was perfectly reasonable for the Tribunal to rely on it.  It has also relied on the fact that the claimant worked as a chef which entailed him standing for longish periods of time.  This also it was entitled to do.

28.	As regards the question of falls I again can ascertain no error in the Tribunal’s decision.  Without the Record of Proceedings I do not know the level at which this question was explored at hearing but the Tribunal was, in my view, entitled to regard the fall which was mentioned to the Examining Medical Practitioner as being a “one off”.  It was also, in my view, entitled to its finding that the claimant did not satisfy the lower rate of the mobility component on the accepted evidence.

29.	Miss Loughrey has mentioned that the Tribunal may have erred by preferring the claimant’s oral evidence to his written evidence.  I do not know whether or not the Tribunal did do that as it appears to me that, even on the written evidence as assessed, the Tribunal was entitled to its conclusions. However, even if it was the case that the Tribunal preferred the oral evidence that is not an error of law.  Oral evidence can be explored for inconsistencies and tested for veracity and I would not fault a Tribunal for giving it greater weight than written evidence.  However, it must be remembered that the weight to be given to evidence is a matter for the Tribunal which has the opportunity of seeing the claimant and testing the evidence.  Whether, in the event of a conflict between the two, a Tribunal prefers oral or written evidence or considers neither to be wholly reliable, is a matter for the Tribunal as the fact finding body.

30.	I would, as certain of the grounds here appear to relate to whether or not the Tribunal had adequate evidence for its conclusions, wish to make mention of the effect of the absence of the Record of Proceedings.  In the absence of that Record I am not entitled to assume that the Tribunal did not have evidence for its conclusions nor to conclude that issues were raised at hearing which the Tribunal did not deal with.

31.	The claimant has indicated that he considers the Tribunal did not have adequate time to read the General Practitioner’s records.  I am unable to ascertain any error of law in this respect.  The Tribunal has quite obviously perused those records and taken them into account.  It must be remembered that the medical number of the Tribunal would have considerable experience in the reading and sifting of such records.  Again, I do not have the Record of Proceedings, so am unable to ascertain whether or not the claimant raised any issue as to adequacy of time at the Tribunal hearing.

32.	As regards the other matters raised by the claimant, I can ascertain no error of law on the Tribunal’s part as regards its conclusions of fact.  They do appear to have been sustainable on the evidence.

33.	I can ascertain no error of law in this decision either as indicated by the claimant and his representative or otherwise and I therefore dismiss the appeal.

Signed):  M F   BROWN

COMMISSIONER

13 JUNE 2002