Decision No: C34/03-04(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 21 November 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 26 August 2001 and is not entitled to any rate of the mobility component of DLA from and including 26 August 2001.  Leave to appeal was granted by a Commissioner on 22 December 2003 for the following reasons: -

“It is arguable that the decision was wrong in law, because there is an issue as to whether the Tribunal either did consider or ought to have considered whether sleep apnoea was a relevant factor in any decision in this case in relation to the lower rate of the mobility component of disability living allowance.”

2.	Having considered the circumstances of the case I am satisfied that the appeal can properly be determined without a hearing.  

3.	Mr Fletcher, and later Mr Toner, of the Decision Making and Appeals Unit represent the Department in this appeal while the claimant represents himself.

4.	The claimant was in receipt of middle rate of the care component of DLA (day attention) from 26 August 1999 until 25 August 2001.  A renewal claim in respect of the period from 26 August 2001 was received in the Department on 12 April 2001 indicating that the claimant suffered from sleep apnoea, chronic recurring psoriasis, psoriatic arthritis and abdominal/bowel dysfunction.  After a report was completed by the claimant’s general practitioner (GP) and after an examination of the claimant by an examining medical practitioner (EMP), it was decided on 25 July 2001 that the claimant satisfied the conditions of entitlement for an award of the lowest rate of the care component from and including 26 August 2001.  After this decision was disputed the decision of 25 July 2001 was reconsidered on 2 September 2001.  However, it was not changed.  Thereupon the claimant appealed. 

5.	The appeal came before the Tribunal on 15 August 2002.  As the GP records were not available this Tribunal adjourned the appeal.  The case came before a differently constituted Tribunal on 21 November 2002 which came to the decision as set out in paragraph 1 herein.  

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

“We accept that [the claimant] suffers from psoriatic arthritis, sleep apnoea, psoriasis, prostatitis and has a history of alcohol problems and a peptic ulcer.  His original form and indeed his evidence to the hearing revealed quite marked restrictions in terms of both the mobility and care components.  His General Practitioner confirmed that he had difficulties with activities of daily living.  However the benefit claimed is directly related to his walking and his ability to perform his bodily functions.  He is already in receipt of the low rate care component (main cooked meal) which is not in dispute.  His General Practitioner confirmed that there is no history of falls which contradicts [the claimant’s] evidence.  The Examining Medical Practitioner who examined him on 17.7.2001 found only slight impairment of his limbs.  He was of the opinion that [the claimant] could walk 150 yards on the flat a little slower than normal but with satisfactory balance and without the need of guidance/supervision on unfamiliar routes.  We accept that opinion.   He considered that [the claimant] would need help with his psoriasis creams, dressing (pullover and shoes) and help to take a shower.  We accept that opinion.  It is not contradicted by the opinion of the General Practitioner whose letter of 8.8.2002 is some 13 months after the date of the decision and therefore does not help the Tribunal.  We consider that [the claimant] overstates his disability, a view shared by the Examining Medical Practitioner.  We reject his evidence.  We prefer the opinion of the Examining Medical Practitioner.  He can walk a reasonable distance in a reasonable time, manner and speed.  Walking would not lead to a deterioration of his health nor would it be life-threatening.  He can clearly manage outdoors on unfamiliar routes.  He requires help as outlined above.  However we are satisfied that this is neither frequent throughout the day nor prolonged nor repeated at night.  We do not accept that he has the extensive night time needs he claims.  He is left at home unsupervised for a good part of the day.  We do not accept that supervision or watching over is required.  It is not referred to anywhere in the General Practitioner’s notes.  The appeal must therefore fail.”

7.	The Legally Qualified Member made the following composite record of the Tribunal’s proceedings: -

	“1.	DOCUMENTS CONSIDERED:

		Written submission.
		General Practitioner’s notes and records.

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

	Chairman introduced the Tribunal and explained the procedure.  The Presenting Officer had viewed the General Practitioner’s notes but [the claimant]did not wish to do so.

	[The claimant]

	I use a machine – CPAP machine – to help with sleep apnoea – danger of heart disease and loss of concentration – psoriasis with arthropathy – knees, hips and elbows the worst – on flat area possibly 50 yards in total without pain – can’t walk to shop or bus-stop – only been out walking 6 times in the last year – got lift here and lift home – I drive to Carrick – wife does the shopping – I drive to Dr T’s clinic at the City Hospital – last time out was theatre last year.

	Mr Garrett

	Submission is whether the current award is appropriate – no mention of sleep apnoea – withdraw that part of the submission about low rate mobility.

	[The claimant]

	I’m not up to driving today – trouble with gears and steering – don’t drive the car at night – I was a company representative – I could cope with finding an unfamiliar route – my condition had not improved but my award was reduced – I’ve had the stick 3 years – 2 sticks and zimmer frame – only at home.

	Care

	Wife turns off CPAP machine – I can’t reach it – bad morning she pulls the mask off – I have a perching stool in bathroom – wife helps me wash and dress – need help from the toilet at times – generally deal with the toilet myself – need supervision in bath at all times – 2 major falls – need help into bath – Occupational Therapist said shouldn’t take bath unsupervised – that was 2-3 months ago – bowel and urinary problems – need help into bed – getting dressed – couldn’t bend to dress – trouble with shirt – need help downstairs.

	Mr Garrett

	He got middle rate previously – we might say previous award was not appropriate – we look at the current award.

	[The claimant]

	I’m on my own from 8.15 am for 50% of the time – can’t make cup of tea – balance problem – I can grip but can’t twist – smoke – no problems  - I’m up before 8.00 each morning – watch television read – do my own paper work – difficulty cutting up food – couldn’t do medication – some if it – I need daughter to take tablets out – psoriasis was constant and chronic – creams once every day – twice every day if it’s chronic – flares up every 6-8 weeks – takes 4 weeks to treat it – affected on whole body – can’t do back and feet – takes me 20 minutes – at bed time need help with machine – splint on my hand to keep it open at night – turns the machine on – I can lie down – she has to put the mask on  - I can get to sleep some time – I get up 2-3 times at night to go to toilet – need wife to help me – machine came off 4-5 times in the last year – was falling asleep in strange places – got it at Royal – the reduction of the award wasn’t fair – nothing else – don’t drive at night – there are flare-ups at times – Examining Medical Practitioner said he arrived at 9.15 – he arrived at 9.04 – I went to get medication didn’t go to toilet – when I came back I fell down – I hadn’t fallen between January and July 2001 – we have covered all of the issues I am happy with this panel.

	Mr Garrett

	In June 2002 arthritis described as inactive – some dispute as to whether he was driving at the time – [the claimant] has signed statement of his needs in the doctor’s report – Examining Medical Practitioner felt he could use a commode – doctor saw him go to toilet unaided.”

8.	The claimant then sought leave from the Legally Qualified Member to appeal to a Commissioner.  However, such leave was refused on 23 May 2003.  The claimant then sought leave from a Commissioner and, as stated in paragraph one, leave to appeal was granted on 22 December 2003.

9.	The grounds set out by the claimant for his application for leave to appeal can be summarised as follows in that the Tribunal has erred in law because: -

(1)	the Tribunal did not comply with the terms of a previous adjournment regarding GP’s medical records;

(2)	the claimant did not receive notice that the Tribunal would be differently constituted from the original Tribunal;

(3)	the Department’s Presenting Officer submitted that medical evidence should be disregarded;

(4)	the Presenting Officer stated that there was no mention of sleep apnoea.

10.	There is no substance in the first ground of appeal as, according to the record of proceedings, the Tribunal that heard the case was in possession of the GP’s medical records.  It is also clear from the record of proceedings that, while the Presenting Officer viewed these records, the claimant declined the opportunity to do so.  

11.	In relation to the second ground of appeal there is no suggestion within the terms of the original adjournment that it was desirable that the reconvened Tribunal should be identically constituted.  In any event the new Tribunal dealt with the matter by way of rehearing and the claimant raised no objection to the case proceeding before the freshly constituted Tribunal.  In the circumstances the fresh Tribunal did not err in law in deciding the case.  

12.	It is not entirely clear what point the claimant is making in the third and fourth ground of appeal but it is noteworthy that the Presenting Officer is quoted by the Legally Qualified Member in the record of proceedings as stating “no mention of sleep apnoea”.  Nevertheless it is clear from the Tribunal’s statement of reasons for its decision that it accepted that the claimant suffered from sleep apnoea.  While it is also not entirely clear what submission the Presenting Officer was making, it is in order for the Presenting Officer to make any points that he or she thinks fit when contesting an appeal and it is not and cannot be an error in law for the Tribunal to hear such submissions.

13.	However, as is clear from the reasons that have been given granting leave to appeal to a Commissioner, there is an issue in this case as to whether the Tribunal either did consider or ought to have considered whether sleep apnoea was a relevant factor in relation to the lower rate of the mobility component of DLA – section 73 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992.  At issue is whether the claimant is entitled to the lower rate of the mobility component because, even though he is able to walk, he is so severely disabled physically or mentally that, disregarding any ability he may have to use familiar routes, he cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time. 

14.	It is noteworthy that in the original written submission to the Tribunal the following point was made in the Departmental written submission: -

“I would respectfully ask the Tribunal to consider all evidence available to them and to decide if [the claimant] suffers episodes of sleep apnoea that are so unpredictable or frequent that he would require guidance or supervision when walking outdoors in unfamiliar areas.”

15.	Clearly the Tribunal was originally referred to the possibility of the lower rate of the mobility component being appropriate for the claimant.  It seems, however, that the claimant, not unreasonably, is concerned with the reference in the record of proceedings to the phrase “withdraw that part of the submission about low rate mobility”, clearly a reference to a statement by the Presenting Officer at the hearing.

16.	However, it is evident from the reasons for the Tribunal’s decision that the Tribunal accepted that the claimant suffered from sleep apnoea but, mainly because it preferred the evidence of the EMP who examined the claimant on 17 July 2001, it found that he could clearly manage outdoors on unfamiliar routes without guidance or supervision.  While it might have been preferable for the Tribunal to be more specific about its findings in relation to the lower rate of the mobility component of DLA, I do not consider that the Tribunal, by dealing with the matter in the succinct way that it has done, has erred in law.

17.	In the circumstances, for the reasons set out in paragraphs 10 to 16 herein, I dismiss the appeal.

(signed):John A H Martin QC
Chief Commissioner

20 April 2004