Decision No: C51/03-04(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 30 September 2002

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant against the unanimous decision of the Tribunal, affirming the decision of the decision maker, to the effect that the claimant is entitled to the lowest rate of the care component of disability living allowance (DLA) from and including 16 May 2002 and is not entitled to either rate of the mobility component of DLA from and including 16 May 2002.

2.	Leave to appeal was granted by the legally qualified member of the Tribunal on 3 March 2004 on the grounds that the decision under appeal might be invalid.  

3.	At the hearing of this appeal the claimant, who was present, was represented by Mrs Carty, Solicitor, of the Law Centre (NI) while Mr Kirk, of the Decision Making and Appeals Unit, represented the Department.

4.	The claimant was in receipt of highest rate care component and higher rate mobility component of DLA from 16 May 1999 until 15 May 2002.  A renewal claim in respect of the period from 16 May 2002 was received in the Department on 19 December 2001 indicating that the claimant suffered from right knee pain, a paralysed left arm, a fractured skull, crushed vertebrae and a broken bone in his neck.  On 5 February 2002 it was decided that the claimant satisfied the conditions of entitlement for an award of the low rate care component from and including 16 May 2002.  At the claimant’s request the Department reconsidered entitlement but on 18 February 2002 it was decided that the decision ought not to be changed.  On 26 February 2002 the claimant requested a written statement of reasons for the decision of 5 February 2002 and this was subsequently issued on 12 March 2002.  Thereupon the claimant appealed to a Tribunal.

5.	The Tribunal gave the following composite reasons for its decision in relation to both components: - 

	“  We accept that [the claimant] suffers from injuries to his left arm as a result of a left brachial plexus injury together with neuralgia pain and depression.  In his application form he outlined substantial difficulties in respect of the care component.  He indicated that he could walk 400 yards and did not need guidance/supervision out of doors on unfamiliar routes.  He repeated these assertions at the hearing of the appeal.  His General Practitioner confirmed that his mobility had improved following an operation to the ligaments of his right knee.  He confirmed that [the claimant] uses a walking stick on occasions and that he almost fell 3 times.

	In the General Practitioner’s opinion [the claimant] is capable of performing the bodily functions listed in the report with the exception of using stairs if he only had one handrail – [the claimant] does, in fact have 2 handrails.  The General Practioner’s notes contain an entry from the Orthopaedic clinic dated 18.09.2000 which reads “…right knee stable by his own admission”.  A further note of a visit to his General Practioner on 4.5.2001 indicates that [the claimant] was hit on the head with a 5 kilogram weight when moving a wardrobe.  There is nothing in the General Practioner’s notes to suggest major functional problem with his knee or indeed his left arm and certainly nothing to suggest that he has a paralysed left arm.    He was discharged from psychiatric review in 1999.  He was not pleased with the way he was being treated.  His General Practioner saw him on 5.1.2002 some 3 weeks prior to his report. We are satisfied that he knows [the claimant’s] conditions well and we accept his opinion in relation to [the claimant’s] capabilities.  We are satisfied that he can walk a reasonable distance in a reasonable time, speed and manner and that he does not require guidance/supervision when outdoors on unfamiliar routes.  Similarly we are satisfied that he can attend to all of his bodily functions.  There is no evidence of a requirement for motivation/prompting in relation to his bodily functions.  The risk of falling can be greatly reduced by the use of a walking stick.  There is no evidence of a need for supervision in order to prevent a risk to [the claimant] or others.  

 The General Practitioner confirms the need for assistance in relation to the preparation of a main cooked meal.  We accept that opinion.  The appeal otherwise must be dismissed”.

6.	A legally qualified member made the following composite record of the Tribunal’s proceedings: -

     “ DOCUMENTS CONSIDERED:

  Written submission.
  General Practitioner notes and records.

RECORD OF PROCEEDINGS [including evidence considered and details of adjournment application (if any)]

Chairman introduced the Tribunal and explained the procedure.  Appellant had examined his General Practioner notes and records.

[The claimant]

	Uneven surfaces are a problem – foot and stick get caught in kerbs – not really a problem on flat ground – out of breath from multi-storey to here – the awkwardness of it – had to stop twice – out of breath and sore leg – stick helps – fell twice since Christmas – can’t do without it – grazed the elbow – knee gave way – have someone with me for reassurance – could go 400 yards – didn’t need someone with me at that time – first fall in May of this year.  I would avoid uneven ground – nothing further.

Ms G 

We try to plan route – to avoid uneven ground.

CARE

[The claimant]

Don’t need help out of bed – need help washing left arm.  I have a shower.  Linda might help with left arm some time – every day need help with right arm.  Showering and washing hands and toileting I can do okay.  Need to have help with trousers – laces on shoes – if I go out somewhere swanky I’d use laced-up shoes – normally wear trainers with laces – need help with one cuff.  I can take medication okay – don’t need help at night.  Try to stay with Linda more in a bungalow.  I could ask directions in an unfamiliar area.

Ms G

Mood swings – very volatile – different since the accident – on medication for mood swings – deteriorated this last wee while.  I used to be his partner – needs more help – try to do all the wee mundane things – nothing else to say.

[The claimant]

Occupational Therapist gave me the stick – nothing further”.

7	  Mrs Carty, by letter dated 10 June 2004 had already made it clear that she was not proceeding on the ground of appeal accepted by the legally qualified member as being the appropriate ground of appeal for granting leave to appeal.  This was because it was based upon the mistaken assumption that the renewal claim had been disallowed in advance when in fact an award of the lowest rate of the care component had in fact been made.  However, Mrs Carty proceeded on two other grounds of appeal which where originally brought before the legally qualified member in the application for leave to appeal.  These can be encapsulated as follows:-

(i)  	The Tribunal’s decision was based on a mistake as to a material fact on two grounds: -

(a)	  The Tribunal’s statements regarding his left arm were incorrect in light of the evidence before the Tribunal and:

(b)  The Tribunal erred by not seeking the claimant’s comments in relation to the discrepancy in the record of the General Practitioner’s notes regarding an incident involving the claimant being struck on the head when moving a wardrobe.

(ii)  The Tribunal’s delay in issuing the reasons for decision was called into question the accuracy of the reasons and, accordingly it was contended that the statement of reasons in the circumstances was inadequate.

8.	This case took an unduly long time to come before a Commissioner.  The reason for this is that, following the Tribunal’s decision, the claimant applied for a statement of reasons. As the request appeared to be late the legally qualified member treated the request as an application to extend time for the Tribunal to issue a statement but refused to extend time.  There then followed what can only be described as protracted correspondence between the claimant’s representative and the Appeals Service (TAS) as to the date the actual decision was issued.  In November 2003 it was eventually accepted that the request for the statement of reasons was made within time and as a result the statement of reasons were issued on 13 January 2004, and subsequently, leave to appeal to a Commissioner was granted on 3 March 2004.

9.	Mrs Carty submitted that the Tribunal was not entitled in light of the evidence to come to the conclusion that “there is nothing in the General Practitioner’s notes to suggest a major functional problem with his knee or indeed his left arm and certainly nothing to suggest that he has a paralysed left arm”.  As Mrs Carty has pointed out, the General Practitioner’s notes contain many entries from both General Practioners and Consultants to the effect that the claimant has a paralysed left arm.  These include a reference by Mr E , Orthopaedic Registrar, dated 18 February 1999 that the claimant has “complete avulsion of the left brachial plexus resulting in a flacid insensate arm”.   A letter dated 4 June 1999 from Mr B, Consultant Plastic Surgeon, to Mr C, Consultant Orthopaedic Surgeon, stating: -  “There is no evidence of any motor activity.  The limb is completely flail and he has only a small area of sensation on the back of the upper arm.  This kind of complete dense brachial plexus lesion is not amenable to surgical correction by exploration of the plexus.  He has almost certainly sustained a complete avulsion injury and I don’t think there will be any significant improved (“sic”) in his limb in the future”.  On 5 July 1999 the claimant’s General Practitioner recorded that the claimant has “permanent loss of arm use”.  On 15 June 1999 Mr C, Consultant Orthopaedic Surgeon recorded that “the arm is still lifeless …. there is no useful treatment for the limb”.  On 31 August 1999 the General Practitioner’s records state that the claimant is “unable to use left arm at all” and there also is a note stating:  “Left brachial plexus injury, paralysis of left arm…..”.    On 14 September 1999 Mr C, after seeing the claimant on 14 September 1999 recorded that “there is absolutely no motor involvement of the left arm and thus no place for surgical management”.

10.	In the circumstances Mrs Carty submitted that the Tribunal’s decision is based on a mistake as to a material fact that the claimant did not have a paralysed arm when in fact he clearly did.  She also submitted that this particular finding was especially material as it was highly relevant in the consideration of such issues as bathing and dressing where consideration would have been given as to how these acts could have been performed in light of paralysis of the left arm.  In addition she submitted that the erroneous finding also crucially undermined the claimant’s credibility.

11.	Mr Kirk accepted that the Tribunal’s finding in relation to the lack of paralysis of the left arm was erroneous and unsustainable on the evidence.  However, he submitted that the Tribunal, even though it made a gross mistake in relation to this point was still entitled to come to the conclusion to which it came as a person who had a paralysed left arm would not, in the circumstances of the present case be entitled to anything other than the lowest rate of the care component.

12.	 It is difficult to understand how the Tribunal overlooked the references in the medical notes to the paralysis of the left arm.  However, it seems that the point was not emphasised either by the claimant or by his representative who turns out to have been a friend of the claimant who had no experience in conducting Tribunal cases.  It is most unfortunate, however, that when the Tribunal was considering that the claimant might have no paralysis in his left arm that the point was not put by the Tribunal directly to the claimant so he could deal with it.  The voluminous papers in this case are all based on the assumption that the claimant’s left arm was paralysed and the only issue in relation to the arm was how it affected him.  For some reason, which cannot be explained, the Tribunal appears to have come to the conclusion that the whole basis of the claimant’s claim was false in that he was pretending to have a paralysed arm as, according to the Tribunal, there was “certainly nothing to suggest that he has a paralysed left arm”.

13.	Once the claimant’s paralysis, or lack of paralysis, became an issue in the case, the Tribunal ought to have asked material questions in pursuance of its duty to act inquisitorially.  Mr Commissioner Rowland in R(IS)11/99 (a Great Britain case) gave useful guidance, at paragraph 31, which I consider helpful to quote:-

  “There does, however, arise the question whether the tribunal erred in law by failing to act inquisitorially.  In Regina v Deputy Industrial Injuries Commissioner, ex parte Moore, [1965] 1 QB 456 (CA) (also reported as an appendix to R(I) 4/65), Diplock LJ said: 

“ In dealing with appeals of these kinds, the insurance tribunal, namely the local appeal tribunal or the Commissioner or Deputy Commissioner as the case may be, is exercising quasi-judicial functions, for at this stage it has conflicting contentions before it, those of the claimant and those of the insurance officer who has disallowed the whole or part of the claim.  But there is an important distinction between the functions of an insurance tribunal and those of an ordinary court of law, or even those of an arbitrator.  As was pointed out by the Divisional Court in Regina v Medical Appeal Tribunal (North Midland Region), ex parte Hubble [1958] 2 QB 228, 240, a claim by an insured person to benefit is not strictly analogous to a lis inter partes.  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 upon 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.”

 In Hubble, the Divisional Court had used the analogy of an inquest rather than an action.  It seems to me that there is clearly a duty upon a tribunal to ensure that all relevant questions have been asked of the claimant.  It could not be otherwise, given the complexity of social security law and the fact that few claimants have advisors and that many are poorly educated.  The asking of questions is largely achieved by ever-more sophisticated claim forms but even the Income Support claim form, which runs to several pages, cannot ask all possibly relevant questions.  Some questions are designed merely to elicit an answer, which will reveal whether further questions need  be asked later.  When a case goes on appeal, it seems to me that a tribunal are not bound to ask questions that have already been asked by the Secretary of State or by an Adjudication Officer, unless the points have been put in issue, but they are obliged to ask those questions that have not previously been asked but which should have been asked.”

14.	In the circumstances I feel impelled to conclude that the Tribunal in the present case erred in its inquisitorial function and acted in the breach of the rules of natural justice by not, at the very least, putting the issue of the possibility that the left arm was not paralysed to the claimant.

15.	In relation to the second limb of Mrs Carty’s first ground – that the Tribunal ought to have sought the claimant’s comments in relation to the discrepancy in the General Practitioner’s notes about the wardrobe incident – I consider that this issue is no longer crucial in my decision.  It seems to me that it is subsumed into the points made by Mrs Carty on the issues set out in the preceding paragraphs, as the significance, in the Tribunal’s mind, of the apparent ability to move a wardrobe was based on its conclusion that the claimant’s left arm was not paralysed and I have already decided that this was a conclusion to which the Tribunal should not have come without the matter being put directly to the claimant.

16.	In light of my finding in relation to the two limbs of the first ground of appeal, the second ground becomes somewhat academic.  However, I basically agree with Mr Kirk’s submission that there is nothing to indicate that the error made by the Tribunal in dealing with the General Practitioner’s notes was due to any delay in issuing the statement of reasons.  Suffice to say, the delay in the production of a statement of the Tribunal’s reasons in the present case was unfortunate.  However, I have no reason to think that this is a general practice within Tribunals in Northern Ireland and am prepared to accept that the unusual circumstances of the present case were the probable cause of the late production of the statement.  In any event, as stated earlier, it is not appropriate for me to speculate as to whether it was a significant factor in the present case, especially in light of my finding on what I consider to be the main issue.

17.	Nevertheless Mr Kirk submitted that, in spite of the Tribunal’s failure to deal with the paralysis issue appropriately, the Tribunal was entitled to come to the conclusion to which it came, as the General Practitioner’s factual report did not support the claimant’s contentions.  However, I conclude that the Tribunal would not necessarily have come to the conclusions to which it came if it had appreciated that the claimant in all probability had a paralyzed left arm.  Accordingly, while accepting that Mr Kirk may have a valid point to make, I am far from being persuaded that this case is one in which the Tribunal, in spite of its error in relation to the left arm issue, was entitled to come to the conclusion to which it came. Accordingly, under the provisions of Article 15(8)(b) of the Social Security (Northern Ireland) Order 1998, I conclude that this case is one in which a fresh tribunal is in the best position to re-assess the evidence and decide the issues in the case in light of that evidence.

18.	For the reasons stated I allow the appeal, set aside the Tribunal’s decision and refer the matter back to a differently constituted Tribunal for a re-hearing.

(signed): J A H Martin QC
Chief Commissioner

25 October 2004