Decision No: C14/04-05(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 25 September 2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1	This is an appeal, leave having been granted by me, by the claimant against a decision dated 25 September 2003.  In that decision the Tribunal upheld the decision of a departmental decision maker dated 16 January 2003.  That decision had superseded an earlier decision of 20 February 2000 which had awarded the claimant the higher rate of the mobility component and the middle rate of the care component of disability living allowance (DLA) from and including 25 March 2000.  The decision of 16 January 2003 was to the effect that the claimant was no longer entitled to DLA from and including 16 January 2003.  

2	The Tribunal upheld that decision and the claimant appealed to me, his grounds being that his condition had not changed and indeed was worse on some days than when he had the award. In the appeal to me the claimant has been unrepresented and the Department has been represented by Mrs Gunning of the Decision Making Services. I am grateful to Mrs Gunning for her considerable assistance in this matter.  My decision is given in the final paragraph.

3.	Mrs Gunning submits that the Tribunal had grounds to consider the claimant’s entitlement to DLA on the basis that there had been an improvement in his situation in that his care needs had decreased.  She submitted that the Tribunal, on the available evidence, was entitled to conclude that the claimant no longer satisfied the entitlement conditions for the care component.  She submitted further that the Tribunal had erred in law in that it had failed to establish grounds to remove entitlement to the mobility component.  This submission was made by letter dated 23 August 2004.  In that letter Mrs Gunning requested me to give the decision which, she submitted, the Tribunal should have given.  This was that there had been an improvement in the claimant’s condition and therefore there were grounds to supersede the decision awarding DLA in that the claimant no longer satisfied the entitlement conditions for the care component but remained entitled to the mobility component.
4.	Mrs Gunning referred, in her submission, to Decision R2/95(DLA) paragraph 4 as authority for the proposition that DLA was a single composite benefit and once grounds for supersession had been established entitlement to both components could be looked at.  This was the basis for her submission that once it had been established that there was an improvement in the claimant’s condition the Tribunal was entitled to consider his entitlement to the mobility component.  She made the further submission that the Tribunal was not entitled to alter the award of the mobility component without establishing that the claimant’s mobility had improved since the initial award was made. Mrs Gunning referred to my decision C17/03-04(DLA) as authority for the proposition that the Tribunal was not entitled to remove entitlement just because it took a different view of the same facts.  In that decision I expressed agreement with the decision of the Court of Appeal in England in the case of Wood - v - Secretary of State for Work and Pensions [2003] BWCA CIV53.  This matter has since been further explored by a Tribunal of Commissioners in Great Britain in decision CIB/4751/2002.

5.	The claimant was given an opportunity to make further comment on the Department’s submission but, perhaps unsurprisingly, he has not done so.  

6.	I am in full agreement with Mrs Gunning that the Tribunal was entitled to remove the award of the care component.  There were clearly grounds to do so in that the claimant’s care needs were much less than they were found to be when the award to the care component was made.  This is even on foot of the claimant’s own evidence.

7.	The Tribunal also removed that part of the award which related to the mobility component and that issue is much more problematic.  I agree with Mrs Gunning that DLA is a composite benefit and that once grounds for supersession have been established both components can be looked at.  R2/95(DLA) and CIB/4751/2002 so indicate.  However, that is not the end of the matter.

8.	CIB/4751/2002 decided, inter alia, that where a claimant makes an application for supersession of a Secretary of State’s decision and the Secretary of State supersedes adversely, and makes a decision less favourable to the claimant than had previously been in existence, the Secretary of State does have power to do so but such supersession is to be taken as done on his own initiative and therefore to take effect from the date of the superseding decision.  [Paragraphs 195 and 95-97].  In Northern Ireland the Department has the functions of the Secretary of State.  The decision also decides that a decision can only be superseded if there is a ground for supersession and that ground forms the basis of the supersession decision in the sense that the original decision can only be altered in a way which follows from that ground (Paragraph 10(4) and 186).  Following the reasoning of Rix LJ (with which Dyson LJ agreed) in the Wood case the Tribunal of Commissioners decided that, unless one of the statutory criteria for supersession had been established and formed the basis of the new superseding decision, a superseding decision could not be made. 

9.	In this present case the Department undoubtedly did have grounds for supersession. Those grounds were that the claimant’s care needs had lessened.  This lessening constituted a relevant change of circumstances, one of the grounds for supersession contained in regulation 6(2) of the Social Security and Child Support Decision and Appeals Regulations (Northern Ireland) 1999.

10.	The Tribunal of Commissioners decided also that an appeal tribunal’s jurisdiction was not limited to affirming or setting aside the decision under appeal to it.  The Tribunal is a superior fact finding body and if, having made its own findings of fact it considered the awarding decision to be wrong it had power to make the decision on the claim which it considered the Secretary of State ought to have made on the basis of the facts which it had found (paragraphs 90 – 93).

11.	In the instant case, the award of DLA being a composite single award of one benefit, the Tribunal was entitled, if it had grounds to do so, to make a supersession decision which altered both components.  The Tribunal decision, however, had to flow from the grounds for supersession.  In this case those grounds were the relevant change of circumstances and the Tribunal was entitled to supersede the existing award in a way that flowed from those grounds.  The relevant change of circumstances was that there was an alteration in the care needs in that they had been reduced.  On the basis of the Tribunal’s findings of fact in relation to the care component, which were, in my view, sustainable on the evidence, the Tribunal was entitled to supersede the existing award to remove the care component on the basis of relevant change of circumstances.  The question of the mobility component was also dealt with by the Tribunal.  It found that grounds to supersede the decision and terminate that part of the award existed on the basis of both the report of the claimant’s General Practitioner dated 13 December 2001 and the examination and report of the EMP on 10 October 2002.  It found (in light of the findings on examination of the EMP and her assessment of the claimant’s walking ability):

“we accept that he could walk 100 yards a little slowly in 2 minutes approximately with no halts and a limp.”  

12.	The Tribunal also found that it would be reasonable to expect the claimant’s general practitioner to be aware if his walking was so limited as to render him virtually unable to walk and it found that he was not virtually unable to walk.  The reference to the General Practitioner presumably relates to the response by the General Practitioner to enquiries by the Department that he was unaware of any difficulty which the claimant experienced whilst walking on level ground.

13.	The Tribunal made a specific finding of fact as to the claimant’s walking ability, this being that he could walk 100 yards a little slowly in two minutes approximately with no halts and a limp.  Had this or any other finding been capable of being the basis for a conclusion that any of the grounds in regulation 6(2) applied to the award of the mobility component, the Tribunal could have superseded the award of the mobility component of DLA.  The only two grounds which appear to be possibly applicable are those relating to a relevant change of circumstances and those relating to an error of law on the part of the Department.  The earlier decision making the award appears to have been based on a claim form submitted by the claimant wherein he stated that he could walk 30 metres before feeling severe discomfort and it would take him an average of one hour to walk that far and on the replies to a questionnaire completed by the claimant’s General Practitioner, Dr B... regarding the claimant’s condition.  The General Practitioner therein stated that the claimant could not safely walk indoors unaided and could walk about 100 metres before the onset of severe discomfort.  Dr B... did not indicate, though he was asked to do so, how long it would take the claimant to walk this distance.  The decision maker who awarded the benefit recorded expressly that he placed most weight on the report dated 2 February 2000 of Dr B....  It therefore appears, that the awarding decision was based on the limitation in walking of 100 yards.  It is not stated how long the decision maker found this distance would take but in light of the record of his decision at tab 4 on the documents which were before the Tribunal it appears unlikely that the decision maker was relying on the claimant’s statement that it would take him one hour to walk 30 yards. The instant Tribunal found the walking distance to be 100 yards before the onset of severe discomfort and that this could be carried out in two minutes.  It does not appear that there was any indication of a relevant change of circumstances.  The fact situation appears to be as previously found in relation to the mobility component.

14.	It must then be asked whether the original award was in error of law.  The Tribunal reached no conclusion thereon and in my view, though the original decision is extremely generous and must be approaching the boundaries of what could reasonably be said to be virtual inability to walk, the original decision awarding the benefit was not so unreasonable that it could be considered as being in error of law.  I pause here, however, to state that if the conclusion had been unreasonable or perverse I would have considered the decision to be in error of law and that there were grounds to supersede it on that basis.  Paragraph 12 of my decision C17/03-04DLA states “The statutory provisions give the power to change decisions but not (so long as the original conclusion was reasonable) merely because a different adjudicator takes a different view of the same facts.”  I still adhere to that view.  Mrs Gunning’s submission based on paragraph 12 is too wide.  It appears to ignore the words “so long as the original conclusion was reasonable.”

15. 	The Tribunal did have indication that the care needs had very considerably reduced from those which had been accepted on the basis of Dr B...’s report.  It is of course possible that grounds for the supersession of an award of the mobility component can be found from information as to the care component.  However, in light of the very specific finding by the Tribunal in relation to the claimant’s walking ability it would not appear that any difference in the walking ability was such as to take the claimant’s outdoor walking beyond the 100 yards distance found by the Tribunal.

16.	I should mention in passing that I have some concerns that the Department did not properly investigate this matter before it made the original award of the middle rate care component in this case.  Section 5 of the GP’s report of 2 February 2000 refers to various activities which the claimant could safely perform unaided.  He is recorded as being able safely and unaided to carry out the activities of getting into and out of bed, dressing and undressing, rising from sitting to standing, peeling and chopping vegetables, using a cooker, using taps and using pots and pans.  In regard to the enquiry as to whether he could use stairs unaided the Doctor has replied:

“? No”
and in reply to the enquiry as to whether he could walk indoors the Doctor has replied
“No” 

It is presumably because of those last two replies that the award was made.

17.	However the same Doctor has also replied that the claimant could walk 100 metres out of doors without severe discomfort and that he needed no attention or supervision when walking outdoors on unfamiliar routes.  There appears to be an apparent issue as to why a person who could safely walk around outdoors on unfamiliar routes could not do so in his own home.  That being the case I would have thought that further enquiries would be necessary before an award of the middle rate of the care component would be made.  There is an inherent inconsistency in the Doctor’s evidence.  It also appears to me that enquiries should as a matter of standard practice be addressed to the GP as to whether an activity can safely be managed with the use of any aid which the claimant can reasonably be expected to use.  However that is a matter for the Department and not for me.

18.	I set the Tribunal’s decision aside as in error of law because the decision did not flow from the grounds of supersession, these being the alteration in the care requirements.  Mrs Gunning has asked that I give the decision which the Tribunal should have given.  I can do so in this case.  I adopt the Tribunal’s findings of fact in relation to the care component and in relation to the mobility component.  So doing I consider that there were grounds to supersede the decision dated 20 February 2000 on the basis of a reduction in the relevant care needs.  The decision which flows from those grounds of supersession is that the claimant is not entitled from 16 January 2003 to any rate of the care component of DLA but is entitled from and including that date (unless there has been an intervening decision) to the mobility component of that allowance at the higher rate.

(Signed):  M F Brown

Commissioner

14 December 2004