Decision No: C24/03-04(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 29 August 2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by me, by the claimant against a decision dated 29 August 2002 of an Appeal Tribunal sitting at Belfast.  The Tribunal had disallowed the claimant’s appeal and decided that he was not entitled to Disability Living Allowance (DLA) from and including 27 June 2001.

2.	The claimant’s grounds of appeal were contained in an OSSC1 form dated 3 July 2003 and further comments dated 4 December 2003.  The claimant has amplified these comments in further letters from his representative, Mr Hatton of The Law Centre (Northern Ireland) dated 23 February 2004 and 18 March 2004.  In the event Mr Hatton has proceeded only with three grounds of appeal.

3.	The Department has been represented in the appeal by Mrs Gunning of the Decision Making and Appeals Unit who has opposed the appeal and made representations thereon in letters dated 20 November 2003 and 9 December 2003.  I am grateful to both representatives for their assistance in this matter.  My decision is given in the final paragraph.

4.	The three grounds upon which the claimant’s appeal is founded are as follows:

(1)	That the Tribunal erred in making its determination that the claimant was not virtually unable to walk.  The alleged error is that the Tribunal focused only on the distance the claimant could walk, without taking into account the other factors – speed, time and manner of walking which the legislation provides are also to be taken into consideration.

(2)	That the Tribunal erred in relying on an irrelevant factor (the claimant’s ability to keep a record of his daily events) in determining that the claimant did not have supervision needs.  

(3)	That the Tribunal took into consideration evidence relating to a period after the decision under appeal and in particular took into consideration evidence as to the state of the claimant’s knees in July 2002.  It is submitted that this was not a circumstance obtaining at the date of the decision under appeal to the Tribunal (the Department’s decision dated 27 June 2001) and that the Tribunal was therefore barred from taking this evidence into consideration by Article 13(8) of the Social Security (Northern Ireland) Order 1998.  

5.	Mrs Gunning submits in response that: -

(1)	The Tribunal did consider whether or not the claimant was virtually unable to walk.  She accepted that when deciding whether a person satisfied the condition of being virtually unable to walk factors other than distance did have to be taken into consideration.  She referred particularly to the mention by Mr Hatton of the factor of speed and submitted that this meant more than merely considering how many miles a person could walk in an hour.  She submitted that the Tribunal had obviously considered all the evidence, had not misinterpreted the law, had applied the relevant test and that there was no merit in the point made by Mr Hatton in this respect.

(2)	The fact that the Tribunal had commented on the claimant’s ability to keep records may have been unnecessary but did not render the Tribunal’s decision erroneous in point of law.  The needs asserted by the claimant related to attention in connection with his bodily functions rather than supervision.  He did contend that his propensity to fall resulted in him requiring supervision but the Tribunal had clearly indicated that it did not accept that the evidence supported that contention.  The assessment of the evidence was a matter for the Tribunal and the Tribunal had sufficient evidence before it on which to determine the relevant issues.

(3)	The Tribunal had made a reference to the comment by the claimant’s General Practitioner on 27 July 2002 that his knees did not appear to be “that bad” but this remark followed a list of other comments in the General Practitioner notes relating to the claimant’s knees.  Mrs Gunning submitted that when the reasons for the decision were read in their entirety, it was clear that the Tribunal arrived at its decision after careful evaluation of all the evidence in the case and she did not consider that the Tribunal had been influenced by the General Practitioner’s remark of 27 July 2002.  In addition, Mrs Gunning submitted that in cases such as the present where the claimant was suffering from a degenerative condition, the Tribunal was entitled to use contemporary evidence as a yardstick by which to assess the claimant’s condition at the relevant date (the date of decision under appeal).  She therefore submitted that the Tribunal had not erred in this respect.

6.	I shall deal first with the third ground of appeal.  The ground is based on the provisions of Article 13(8)(b) of the Social Security (Northern Ireland) Order 1998.  That provision is as follows: -

“In deciding an appeal under this Article, an appeal tribunal –

a)	…

b)	Shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.”

7.	This is a mandatory provision.  It prevents the Tribunal from taking account of circumstances not obtaining at the date of the decision under appeal. It does not relate to evidence whenever it came into being, which is relevant to what the circumstances were up to the date of the relevant decision.  It does not prevent the Tribunal taking into account evidence obtained after the decision under appeal was made, for the purpose of drawing inferences as to the circumstances obtaining when or before the decision was made.  For example, if a claimant tells the Tribunal that his situation now is the same as it was at the date of the decision under appeal and produces evidence as to his present walking ability, why should that latter evidence if accepted not be used to determine the circumstances at the date of the claim? 

The Tribunal in deciding the appeal must not take into account circumstances which did not obtain at the time of the decision under appeal.  However, it is entitled to take account of any evidence which indicates what those circumstances were.

 In this connection I would refer in particular to decision CDLA/4734/99, a decision of Mr Commissioner Jacobs in Great Britain.  As Commissioner Jacobs stated at paragraph 57 of that decision: -

“There is a difference between a circumstance and evidence of that circumstance.”

At paragraph 58 he stated: -

“Section 12(8)(b) [the Great Britain equivalent to Article 13(8)(b)] limits an Appeal Tribunal’s jurisdiction by preventing it taking into account a fresh circumstance.  It is only concerned with evidence in this respect: evidence is not admissible unless it relates to circumstances obtaining at the date of the decision under appeal.  I stand by the statement of the law that I set out in CDLA/2934/1999, paragraph 9: -

“In the case of a claim for a Disability Living Allowance, the jurisdiction [of an Appeal Tribunal] is limited to the inclusive period from the date of claim to the date of the decision under appeal.  The effect is also to limit the evidence that is relevant to the appeal.  The only evidence that is relevant is evidence that relates to the period over which the tribunal has jurisdiction.  However, it is the time to which the evidence relates that is significant, not the date when the evidence was written or given.  It does not limit the tribunal to the evidence that was before the officer who made the decision.  It does not limit the tribunal to evidence that was in existence at that date.  If evidence is written or given after the date of the decision under appeal, the tribunal must determine the time to which it relates.  If it relates to the relevant period, it is admissible.  If it relates to a later time, it is not admissible.””

8.	I can put the matter no better than Mr Commissioner Jacobs did in the above extract with the caveat as regards the final sentence in relation to which I would add only this, that the evidence may relate to the period over which the Tribunal has jurisdiction even though it also relates to a later time so long as it sheds light on the circumstances obtaining at the date of the decision under appeal.  I do not think, contrary to the submission made by Mr Hatton in his letter of 18 March 2004, that the Tribunal was considering the General Practitioner’s remark of 27 July 2002 as indicating an improvement since the date of the decision under appeal.  The Tribunal refers to that remark in the following extract from its reasons: -

“[The Tribunal] noted however that there was no plan for knee replacement surgery, that it was recorded that he responded well to injections (General Practitioner notes 2 October 2000), that his General Practitioner recorded on January 2001 that his knees have settled quite well, and on 27 July 2002 that his knees do not appear to be that bad.”

It is quite apparent to me that the Tribunal was regarding the remark of 27 July 2002 as part of a continuous picture and that it did not consider that there had been an unexpected improvement in the claimant’s knees nor indeed an unexpected worsening.  It was gaining, from earlier and later medical evidence, a picture of the general state of the claimant’s knees at the time by reference to which it had to make its determination.  That was ending at the date of the decision under appeal.  Mrs Gunning is correct that in a case such as this, where the claimant is suffering from a degenerative condition, the Tribunal is entitled to use examination evidence obtained on examination after the date of decision as a yardstick by which to assess the condition at the relevant date.  It was not submitted that the claimant had improved at all since the date of the decision, rather the reverse.  The Tribunal was therefore entitled to use later examination evidence to assess the claimant’s condition at the date of the decision under appeal.  I consider that there is no merit in this ground of appeal.  Mr Hatton has mentioned various hypothetical situations but they appear to me to be based on an incorrect interpretation of the provisions of Article 13(8)(b).  I can see no objection to a Tribunal taking into consideration medical evidence after the date of the decision under appeal provided that the Tribunal is satisfied that it is relevant to the circumstances as at the date of the decision under appeal.  That is not prohibited by Article 13(8)(b) and it is what the Tribunal did in this case.

9.	In this connection Mr Hatton mentioned other evidence contained in the General Practitioner’s notes which the Tribunal could have considered.  I can find no indication that the Tribunal did not consider all the evidence in the notes which were before it on the date of its decision.

10.	Mr Hatton has made an alternative submission based on this ground in that he states that if the Tribunal was entitled to consider evidence dated July 2002 it should have taken account of still further evidence.  In his submission that evidence would suggest that the claimant’s condition was still severe and had got worse over the last few years.  He submits that the evidence chosen by the Tribunal suggested an on-going improvement.  I have dealt with this matter above but it does not seem to me that the Tribunal was suggesting that the evidence showed an on-going improvement, simply that the evidence showed that, as at the date of the decision, the claimant’s knees were not in such a state as to indicate that he was virtually unable to walk.  I find no merit in this submission.

11.	As regards the second ground of appeal, that relating to the claimant’s ability to keep records of his condition, the Tribunal’s reasoning over both components was clearly that supervision was not reasonably required.  At hearing neither the claimant nor his representative made any case for a requirement for supervision in connection with the care component due to lack of concentration.  It is possible, as Mrs Gunning submits, that the Tribunal’s remarks on the record keeping ability may be irrelevant but it does seem to me and I consider that the Tribunal was considering the claimant’s contention that he was somewhat depressed and deciding that any mental difficulties which he might have did not interfere with his concentration to an extent that he needed to be supervised.  I consider that on the evidence before it the Tribunal was entitled to this conclusion and in reaching it was also entitled to take into consideration the fact that the claimant’s concentration was good enough to enable him to keep excellent records of his condition.

12.	The claimant did not indicate that he had required help to keep the records nor that he had any other difficulties in connection therewith.  The Tribunal was entitled to accept records claimed to be compiled by the claimant as actually so compiled.  It did not have any obligation to enquire further into that matter.

13.	In general terms and because the matter appears to arise from the terms of Mr Hatton’s submission I would state that the Tribunal is not obliged in every case to put forward to the claimant its possible conclusions from the evidence and enable the claimant to dispute those conclusions.  The Tribunal will not err in law if it reaches conclusions which are sustainable on the evidence.  Mrs Gunning is quite correct in that respect.  The hearing is the claimant’s chance to put his case.  He cannot expect a two stage process of the Tribunal hearing the case, reaching provisional conclusions on the evidence and then putting those conclusions forward to be rebutted by more evidence.  In this case the Tribunal’s conclusions on the care component were quite sustainable on the accepted evidence.  It was not an error of law for it to explore the matter of supervision in relation to concentration.  I can find no merit in that ground.

14.	I then come to the ground relating to the mobility component.  This is the first ground.  The Tribunal’s reasoning is set out as follows: -

“Mobility

Higher Rate

The Tribunal decided that the claimant was not virtually unable to walk.  It took account of the medical evidence that he has osteoarthritis in his neck/knees and hip joints as per letter from Dr B... and x-ray of 24 June 2002.  It also took account of Examining Medical Practitioner’s assessment of reduced function.  It noted however that there was no plan for knee replacement surgery, that it was recorded that he responded well to injections (General Practitioner notes 2 October 2000), that his General Practitioner recorded on January 2001 that his knees have settled quite well, and on 27 July 2002 that his knees do not appear to be that bad.  It also took account of the claimant’s evidence that he can shop, walks to the Royal Victoria Hospital appointments from the Grosvenor Road and walked ½ a mile to his daughter’s house, as recorded in Examining Medical Practitioner’s report.  It noted the claimant stated he experienced pain and stiffness but considered that the clinical evidence did not support this to the extent that he was virtually unable to walk.  It noted also that the claimant stated he was prone to falls, and that he had letters in support of this.  However his General Practitioner was unaware of a history of falls, on his own account he could get up after a fall.  Falls therefore did not impact on his mobility.

Lower rate

The Tribunal noted that the claimant can go out on his own (Examining Medical Practitioner report, paragraph 3) and that although 2 falls were documented in the relevant period, the General Practitioner’s records showed he had missed a step in one of them.  There was therefore no evidence to support need for guidance or supervision or unfamiliar routes.”

15.	The Tribunal’s conclusions that the claimant was not virtually unable to walk and that he did not satisfy the conditions of the lower rate of the mobility component are certainly sustainable on this evidence and I can find no indication that the Tribunal did not take into consideration all four factors involved in determining whether the claimant was virtually unable to walk – speed, distance, manner and time of walking.  It has recited that it took account of the Examining Medical Practitioner’s assessment of reduced function and Dr B...’s letter.  The Examining Medical Practitioner’s assessment in relation to the walking ability covers all of the relevant factors including that there would be a stop to rest due to pains in the knees.  The assessment is that the claimant could walk half a mile in the twenty to thirty minutes with some stop to rest. The Examining Doctor determines the speed of walking as being normal.  

16.	Mr Hatton submits that a person walking at normal speed would walk half a mile in ten minutes.  This is quoted by many authorities as being the average walking speed.  In his view this would indicate that there would be a ten to twenty minute rest when walking the half mile.  That might indeed be correct but the speed of walking while walking could still be normal.  

17.	However, what I have to decide is whether the Tribunal took into consideration all the factors involved.  It appears to me that it did. It also appears to me that the Tribunal was quite entitled on the evidence to reach its conclusion that the claimant’s walking limitations were not such that he could be considered as virtually unable to walk.  It is quite apparent that the Tribunal considered the contention of pain and stiffness and therefore the walking ability without severe discomfort.  I can find no indication that the Tribunal ignored any of the conditions for entitlement to the higher rate of the mobility component.  Its conclusion on that rate of the component was certainly sustainable on the evidence.  Even if the claimant did have to rest for ten to twenty minutes in a walk of half a mile this would not indicate that the Tribunal was in error of law in determining that the claimant was not virtually unable to walk.  Mrs Gunning is quite correct in that the standard of virtual inability to walk is a high one.  The Tribunal’s conclusions are sustainable on the accepted evidence and I consider that there is no merit in this ground of appeal.

18.	My decision is that the appeal is dismissed.

	(signed):  M F Brown

Commissioner

	28 April 2004