[2005] NISSCSC C004_04_05(DLA) (10 May 2005)
Decision No:  C4/04-05(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 26 September 2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant, leave having been granted by the legally qualified panel member, (LQPM) against the majority decision dated 20 September 2003 of a Tribunal sitting at Ballymena.  Initially in the appeal to me the claimant was represented by Mr Gibson of the Citizens Advice Bureau and later by Les Allamby of the Law Centre (Northern Ireland).  The Department has been represented by the Decision Making Services branch (DMS), initially by Mr Kirk and later Mrs Gunning both of that branch.  I am grateful to all representatives for their considerable assistance in this case.  Both parties have expressed the view that the Tribunal’s decision was in error of law.  I also consider that there was an error of law in the decision.  I set the decision aside for reasons which I will indicate later and remit the matter to a differently constituted tribunal for re-hearing and re-determination with the directions which I also give later in this decision.

2.	The Tribunal’s decision was to disallow the claimant’s appeal against a Departmental decision dated 8 June 2002.  That decision superseded an earlier decision (dated 11 January 1996) whereby the claimant had been awarded the lower rate of the care component of disability living allowance (DLA) on the basis that her eczema problem would not permit her to prepare and cook a main meal for herself.

3.	The claimant had sought supersession of this decision by submission of claim forms on 29 January 2002.  It appears from those forms that the claimant was asserting that her care and mobility needs had increased since the original decision and seeking an award of DLA to reflect the asserted increase.

4.	Upon receipt of the forms the Department investigated the matter.  It had the claimant medically examined by an examining medical practitioner (EMP) on 13 May 2002 and it sought additional information by way of a report from the claimant’s general practitioner (GP).  This was supplied and dated 25 March 2002.  Following receipt of these documents the Department considered the matter and made a decision to terminate the existing award.  The Department was acting on its own initiative in so doing and was entitled so to do under Article 11(1) of the Social Security (Northern Ireland) Order 1998.  It had power to supersede adversely to the claimant.  However, a decision can only be superseded on certain grounds and these are set out in regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999.  

5.	The Department’s reasons for the supersession were that a lessening had occurred in the claimant’s care needs.  In reaching this decision the Department relied on the medical evidence.  The claimant appealed to the Tribunal.  At the hearing the claimant’s representative informed the Tribunal that there had been no change in the care requirements and that he was seeking restitution of the existing award and was seeking the high rate of the mobility component.

6.	As regards the care component the Tribunal explored with the claimant her ability to prepare and cook a meal with the use of cotton gloves inside rubber gloves.  The claimant’s representative had informed the Tribunal that the claimant could not wear rubber gloves.  The Tribunal recorded: -

“[The claimant] denied ever having been advised about wearing cotton gloves inside rubber gloves.”

7.	As regards the lower rate of the care component, the Tribunal reasoned (inter alia) as follows: 

“The panel was unable to reach a unanimous decision on whether or not the Department had grounds to supersede the decision of 14 September 1999.  In its submission the Department says that ‘there has been a relevant change of circumstances since the decision of 14 September 1999, that being that [the claimant’s] eczema is now mild to moderate and she can safely make a main meal unaided.’

The Legally Qualified Member, in the minority noted there was really no medical evidence to show that [the claimant’s] hand eczema had shown improvement since 1999.  The Legally Qualified Member broadly accepted the validity of the submission made by [the claimant’s] representative.  Dr M report of July 1999 (…) referred to chronic hand eczema and ‘eczema remains unchanged.’

The same General Practitioner says ‘eczema no change’ in his report of 28 March 2002 (…), are of the 2 reports upon which the supersession decision was made.  The Department nowhere addresses or explains away these assessments from the General Practitioner.

The medical members, in he [sic] majority, decided that [the claimant] ought to be able to cook a main meal for herself by wearing cotton gloves inside rubber gloves; the eczema was an irritant or an inconvenience rather than a disability.  The members noted that it was impossible for [the claimant] to keep her hands completely free of contact with water, a point [the claimant] readily conceded in giving evidence.

The majority referred to the Examining Medicals [sic] current assessment where on page 15 he finds the appellant able to peel/chop vegetables, use taps, use a cooker and cope with hot pans, all unqualified.  The members pointed to the Examining Medical Practitioner’s comment (…) that the clinical picture suggested considerable overstatement of disability and thought the earlier award possibly rather generous although accepting this was not something of which account could now be taken.

Moving beyond the preliminary supersession issue, all the members were satisfied that there was insufficient evidence to justify an award of the low rate of the care component, placing most weight on the findings of the Examining Medical Practitioner’s.”

	As regards the lower rate of the mobility component the Tribunal recorded as follows: -

“Low rate

In her evidence [the claimant] told us that despite anxiety she has recently been able to go into shops in the company of her boyfriend.  [The claimant] also related how she attended a Technical College course in [a neighbouring town] on the day before the hearing and although her boyfriend drove her there she remained unaccompanied in the College, a place unfamiliar to her, for about 3 hours.

[The claimant] drove to the Tribunal unaccompanied today, from which we deduce that she has a sense of direction.

We accept that [the claimant] has a documented aversion to crowded places but on the evidence and at the date of the decision under appeal this was not so strong an aversion as amounted to a disability; she does not reasonably require guidance or supervision for most of the time when walking outdoors on unfamiliar routes.”

8.	The claimant appealed to a Commissioner. The grounds of appeal as regards the care component were that the Tribunal had not given adequate reasons as to why the Department had grounds to supersede the award of lower rate care component in that, as the LQPM had recorded, there was really no medical evidence to show any improvement in the claimant’s hand eczema.  As regards the mobility component the grounds of appeal were that the Tribunal had taken into account irrelevant considerations and given inadequate reasons as to why the claimant was not entitled to the lower rate of the mobility component.

9.	The Department commented on the appeal by letter dated 25 August 2004.  It supported the appeal on the basis that there was no change in the claimant’s eczema condition.  It referred to decision C17/03-04(DLA) as authority for the proposition that a Tribunal was not entitled to remove an award merely because it took a different view of the same facts.  It submitted that although the majority of the Tribunal referred to the EMP’s comments that the claimant could do all the tasks associated with preparation and cooking of a meal this information was no different to the information before the original decision maker.  In light of decision C17/03-04(DLA) the Tribunal had erred in holding that there were grounds to supersede.

	As regard the mobility component the Department submitted that the Tribunal had taken into consideration irrelevant considerations and had applied the incorrect statutory test.  I arranged a hearing and a skeleton argument was submitted.  

10.	In the course of the appeal I obtained submissions from the representatives on various matters.  As I am setting the decision aside for inadequacy of reasoning it is not necessary that I comment on those matters.  I mention the under-noted agreed matters only for guidance for the new tribunal. There was agreement between the parties that functional ability such as ability to perform each of the tasks associated with preparation and cooking of a main meal could be a material fact.  I consider that to be correct.  The parties were also agreed that an improvement in functional ability could constitute a relevant change of circumstances without any change in the underlying medical condition.  I consider that also to be correct.

11.	It is unclear to me whether the majority of the Tribunal, which found that there were grounds for supersession, did so on the basis that there had been a relevant change of circumstances, or that the claimant had always been able to cook a main meal for herself by wearing cotton gloves inside rubber gloves (thereby raising possible grounds as to the original decision having been given in ignorance of a mistake as to a material fact) or thought that the original decision was in error of law for not having explored possible aids to the preparation and cooking of a main meal.  It is also unclear whether the majority of the Tribunal, accepting as it obviously did the EMP’s assessment, considered that even without the assistance of cotton gloves inside rubber gloves the claimant could prepare and cook a main meal for herself. It is also unclear whether the entire Tribunal, relying as it obviously did on the EMP’s report, considered that the award of the low rate of the care component should cease.  In this case I consider that lack of clarity rendered the reasons inadequate and I set the decision aside because of that.

12.	As regards the ground that the tribunal took irrelevant matters into consideration, this appears to relate to the reasoning extracted above on the low rate of the mobility component.  Having perused the evidence in the claim forms, I am not convinced that the Tribunal did err in this way.  The claimant contended that due to her fears, her tendency to fall and her anxieties she always had someone with her to reassure, help and encourage her when outdoors and needed supervision indoors.  The Tribunal considered evidence relating to whether or not this was necessary.  I refer to reported decision R(DLA)2/05, a decision of Mr Commissioner Williams.  This decision relates to the cooking test but the principle enunciated as to assessment of impairment is one which I consider to be relevant to any rate or component of DLA.  As Mr Commissioner Williams says at paragraph 8:

“The tribunal’s job, if there is a dispute, is to test for itself the claimant’s abilities against the hypothetical test.  It can do that by direct application – finding what difficulties the claimant actually has in cooking in the way he or she does so, if that happens.  And it can do that by indirect application – finding what limits the claimant has on gripping, lifting, bending, planning or otherwise by reference to other activities the claimant does undertake such as eating, washing, driving, shopping, cleaning, being aware of danger or any other physical or mental activity using the same bodily functions as are normally used in cooking.”

	The Tribunal was entitled to test the claimant’s ability to take advantage of her faculty of walking by indirect application and her ability to undertake the tasks mentioned without supervision was not, in my view, irrelevant to her ability to take advantage of her faculty of walking without such supervision.  Admittedly certain of the tasks referred to were performed indoors but the claimant had claimed that she was prone to knee locking and falling both indoors and out and was in need of supervision indoors and out.  The matters highlighted by the Tribunal in relation to the low rate mobility component are, in my view relevant to the assessment of the level of anxiety and to the ability to go outdoors without supervision.  It will be for the new tribunal to reach its own view of these matters taking all the accepted evidence into consideration.

13.	I direct the Department to prepare for that tribunal a written submission clearly setting out its grounds for supersession of the decision of 11 January 1996 with evidence in support.

14.	I direct the claimant to indicate clearly to the tribunal, preferably in writing, what are her reasons for considering that she was entitled at 8 June 2002 to the higher rate of the mobility component and/or the lower rate of that component with evidence in support of those reasons.  I direct her to do likewise if she considers that at that date she was entitled to a higher rate of the care component (than the lower rate).  Her representative indicated to the Tribunal that a higher rate of the care component was not being sought.  I direct the claimant and her representative (if any) to confirm to the new tribunal whether or not a higher rate is being sought.

15.	I direct the tribunal to bear in mind the views set out above and to give clear reasons for its decision.

16.	I further direct the tribunal, if it considers that an issue arises as to whether or not the use of certain aids would assist the claimant to prepare and cook a main meal, to explore with the claimant her ability to make use of those aids and to consider any comments she makes thereon.  It is of course a matter for the tribunal whether or not it accepts such comments.

17.	The claimant wins her appeal.

(Signed):  M F Brown

Commissioner

10 May 2005