Decision No: C18/04-05(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 9 December 2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.   	This is an appeal, leave having been granted by the Chief Commissioner, by the claimant against a decision dated 9 December 2003 of an appeal tribunal sitting at Ballymena.  That Tribunal had disallowed the claimant’s appeal in connection with Disability Living Allowance (DLA) and decided that the claimant was not entitled to that allowance from and including 13 October 2002.  The decision was made on foot of a renewal claim.

2.   	The claimant’s grounds of appeal were contained in a letter dated 3 March 2004 attached to an OSSC1 Form received in the Commissioners Office on 20 April 2004 from Messrs R… & D…, Solicitors.  Observations on the appeal were made by letter dated 10 September 2004 from Ms Fleming of the Decision Making Services of the Department (DMS).  Further comment was made by Messrs R… & D… by letter dated 19 October 2004.  I am grateful to both representatives for their assistance in this matter.  My decision is given in the final paragraph.

3.   The grounds of appeal essentially were that the Tribunal had erred in placing too much reliance on the evidence of the Examining Medical Practitioner and that it had paid inadequate regard to the evidence of the claimant’s parents and Professor E….  With regard to Professor E…’s evidence the contention was that the Tribunal’s conclusions regarding the claimant’s attention and mobility needs were inconsistent with Professor E…’s evidence and that further evidence should have been sought from Professor E….

4.   The Solicitors also contended that the Tribunal’s conclusion that the claimant’s ability to summon help by way of mobile phone obviated any guidance or supervision that he would otherwise need was unsustainable in light of the claimant’s known condition.

5.   	I should mention here what I consider to be a factual inaccuracy.  In the letter of 3 March the Solicitors stated that Professor E… indicated that the claimant had lung function which was around 18% of that predicted for his age and height.  That, as I understand it, is not actually what Professor E… stated.  He stated that the claimant had very poor lung function with an FEV1 which was around 18% predicted for his age and height, but Professor E… did not state that the lung function itself was 18% of that predicted.

6.   	The Department opposed the grounds of appeal.  It indicated, in its letter of 10 September 2004, that the assessment of the evidence was a matter for the Tribunal and in support of this cited my decision C12/03-04(DLA).  It submitted that the Examining Medical Practitioner’s findings regarding the ability to cook a main meal were not inconsistent with the medical evidence of either the General Practitioner nor Professor E… and submitted that the Examining Medical Practitioner’s opinion was based on his examination and clinical findings.  It referred also, with regard to the cooking test, to the evidence of the claimant’s mother that the claimant did “home economics” at school.

7.	The Department submitted that the Tribunal did not disregard the evidence of the claimant’s parents.  It accepted that the claimant had certain needs but that these were not at a level required to satisfy the statutory tests.

8.   	With regard to whether there was any necessity to seek further evidence from Professor E…, the Department submitted that the Tribunal had sufficient evidence to decide the appeal and did not err in law by allowing the appeal to proceed without further evidence as it also had reports from the GP, Examining Medical Practitioner and the claimant’s parent’s evidence.

9.   	With regard to the point in relation to summoning help by mobile phone the Department submitted that there were no specific guidance or supervision needs described by the claimant’s parents when the claimant was walking out of doors but the evidence indicated that he had a mobile phone and could contact his mother if he wanted to be brought home from his cousin’s house.  The Department therefore submitted that the Tribunal’s conclusion was sustainable in the light of the evidence put to it and as such no error in law had been identified.  It therefore opposed the appeal.

10.	By letter dated 19 October 2004 the Solicitors reiterated that there should have been additional evidence sought from Professor E… in light of the severity of the claimant’s condition and the limited examination carried out by the Examining Medical Practitioner.  

11.   I will deal first with the Tribunal’s reliance on the evidence in this case.  It does not appear to me that the Tribunal relied by any means exclusively on the Examining Medical Practitioner’s report.  Indeed, as the Department has submitted, there is no great inconsistency between that report and the other medical evidence, in particular that from the hospital contained in the General Practitioner’s records.  The Tribunal has not found that the claimant has no exercise limitations.  Indeed it has found that he has limited exercise tolerance but has concluded that his limitations are not at such a level as to render him unable or virtually unable to walk.  That, on the generality of the medical evidence, including that of the claimant’s own General Practitioner, the General Practitioner’s records, the Examining Medical Practitioner’s report and Professor E…’s report is a conclusion which I consider it was entitled to reach.  Indeed on the claimant’s own statement to the Examining Medical Practitioner and on the evidence of his parents this conclusion would also be sustainable.  The standard of virtual inability to walk is a strict one.  A claimant must be almost or practically unable to walk to satisfy it.  The Tribunal was not satisfied that the claimant was virtually unable to walk.  On the evidence its conclusion was sustainable.

12.	With regard to the care component I again do not consider that the Tribunal relied by any means exclusively on the evidence of the Examining Medical Practitioner (EMP) nor that it placed too much reliance on that evidence.  The EMP’s evidence was not inconsistent with the GP’s evidence nor indeed with Professor E…’s.  Nor, indeed, was it inconsistent with the oral evidence of the claimant’s parents.  It was stated at the hearing that the claimant did home economics at school.  The claimant’s own General Practitioner indicated that there might be a limit to the weight of objects that the claimant could lift but, as the Department has submitted, the test here is the ability to prepare and cook a main meal for one person and the ability to lift heavy weights is not needed for doing that.  

13.   As regards the evidence of the claimant’s parents, I do not consider that this evidence was disregarded nor that inadequate regard was paid to it.  The Tribunal has quite clearly paid attention to that evidence, indeed it specifically refers to it in the reasons for the decision.  In particular, as regards the need for encouragement and support, the Tribunal has recorded

“He receives general encouragement and support from his parents and if occasionally distressed at night by exacerbations of pain would reasonably require some re-assurance and comforting, but such encouragement and re-assurance would not be required to the extent that he could reasonably be said to require attention for a significant portion of the day, or at frequent intervals throughout the day, or prolonged or repeated attention at night.”

It is perfectly clear from this passage that the Tribunal did consider the evidence of the claimant’s parents.  I consider that it was entitled to its conclusion that the encouragement and re-assurance needed was not such as to satisfy the conditions.  It must be remembered that the Tribunal had to apply the statutory conditions. Re-assurance and encouragement can constitute attention in certain circumstances but it does have to be at the level set out in Section 72 of the Social Security Contributions Benefits (Northern Ireland) Act 1992 before an award can be made.  The Tribunal has obviously taken on board the attention needs and indeed the supervision needs but has concluded that these were not at such a level as to satisfy any of the conditions in Section 72.  On the evidence I consider that it was entitled to this conclusion.  The claimant’s own statements to the Examining Medical Practitioner would indicate that he is able to self medicate, his General Practitioner indicated that he was able to be left unsupervised by day or by night and the Tribunal was, in my view entitled on the evidence to its conclusion that none of the statutory conditions were satisfied.

I do not consider that the Tribunal erred in relation to the regard it paid to Professor E…’s report.  As Kerr LCJ stated (delivering the judgement of the Northern Ireland Court of Appeal) in the case of Quinn v Department for Social Development [2004] NICA (29 June 2004) at paragraph 29

“The challenge to the Tribunal’s attitude to the report cannot proceed on the basis that they ignored it, rather it must be that they misconstrued it or they failed to give it sufficient weight.  As to the latter of these two possibilities, it is of course to be remembered that a view of the facts reached by a tribunal can only be interfered with by the Court of Appeal in limited and well-defined circumstances.  Carswell LCJ described those circumstances in Chief Constable of the RUC v Sergeant A [2000] NI261 at 273 F as follows:-

“A tribunal is entitled to draw its own inference and reach its own conclusions, and however profoundly the appellate court may disagree with its view of the facts it will not upset its conclusions unless –

(a)	there is no or no sufficient evidence to found them, which may occur when the inference or conclusion is based not on any facts but on speculation by the tribunal (Fire Brigades Union v Fraser [1998] IRLR697 at 699, per Lord Sutherland); or 

(b)  the primary facts do not justify the inference or conclusion drawn but lead irresistibly to the opposite conclusion, so that the conclusion reached may be regarded as perverse: Edwards (Inspector of Taxes) v Barstow [1956] AC14, per Viscount Simonds at 29 and Lord Radcliffe at 36.””

It does not appear to me that either of the above two categories applies here.  The Tribunal certainly had evidence to found its view of the facts and the conclusions drawn from that view were reasonable.

It must be remembered, as Kerr LCJ stated at paragraph 31 of the Quinn judgement

“the anterior question of the severity of the disability must be addressed before an examination of the causes of the disability becomes relevant.  If the claimant does not suffer the degree of disability to trigger entitlement to the benefit, the debate as to the cause of her complaint does not begin.”

The EMP’s report directly addressed the statutory conditions and the Tribunal was entitled to give weight to it.  It was in large measure consistent with the GP’s factual report and with the GP records.  The Tribunal has concluded that in exacerbations the claimant needed re-assurance and comfort and that he needed general encouragement and support but that these needs were not at such a level as to satisfy the statutory conditions.  That is not inconsistent with any of the medical evidence (including Professor E…’s report) and it is a conclusion which, on the evidence, was sustainable.  The same situation applies to the mobility component.

14.   As regards the contention that the Tribunal should have obtained further evidence from Professor E…, I would state that in general terms it is for a claimant to produce evidence to support his appeal.  The Tribunal would only require further evidence if it could not properly reach a decision on the evidence before it.  I do not consider that that was the situation here.  The Tribunal had the claimant’s evidence, the General Practitioner’s evidence, the General Practitioner’s records which included many hospital reports, the EMP’s report and Professor E…’s report.  The Tribunal’s purpose was to assess the claimant’s supervision, attention and mobility needs.  While, obviously, the claimant’s condition was rare and was relevant to those needs, I do consider that the Tribunal had adequate evidence to enable it to assess the needs.  It was aware that the claimant had the condition and it had adequate evidence relating to the needs.  That being so I do not consider that there was any breach of the inquisitorial role or of the rules of natural justice in the Tribunal proceeding without seeking further evidence from Professor E….  

15.	I come then to the contention in relation to the mobile phone.  The Tribunal’s approach thereto is indicative of it having asked itself the correct legal question i.e. whether the claimant could take advantage of his faculty of walking out of doors without guidance or supervision most of the time.  The Department submits that the Tribunal’s conclusion that such guidance or supervision was not required was sustainable in light of the evidence and I agree with the Department in that respect.  It had the EMP’s report and the General Practitioner had no record of any such needs.  Similarly the claimant’s parents did not indicate any such needs in oral evidence.  In the claim form his mother had stated that he needed someone at hand in case he got over exerted and needed help.  The Tribunal’s remark in relation to the mobile phone seems to relate to the parent’s statement at the hearing about walking to his cousin’s house, that he had a mobile phone and that he had contacted her if he wanted to come home from his cousin’s.  The Tribunal concluded that it was possible and that it was not unreasonable for the claimant to walk out of doors without some form of guidance or supervision.  He was able to summon help, should it be required, by mobile phone.  The evidence is indicative of the claimant being able to rest and then proceed further and of his seeking help by phone if he needed it.  That evidence is, I consider, relevant to whether he could reasonably be expected to walk out of doors without guidance or supervision.  Overall it is indicative of an awareness of and a keeping within his limitations.  He could seek help when he needed or wished it.  His ability to summon help indicated that there was no requirement for someone to guide or supervise him most of the time.

16.	I come now to the ground upon which the Chief Commissioner granted leave which was not put forward in such terms by either of the parties. This was that the Tribunal might have misinterpreted the report of Professor E….  I do not consider that it did so.  As I have already indicated Professor E… did not state that the claimant’s lung function was 18%.  Professor E… did not identify or quantify the attention, help and supervision required.  However, the Tribunal did have other evidence to assist it in this respect.  On his own evidence the claimant attended normal school most days of most months, shopped for half an hour, had no reported problems getting round school though he was permitted to use the lift, walked to a cousin’s house on a good day, walked 100 yards before severe discomfort, self medicated, painted and did home economics in school. The Tribunal did accept that the claimant had the condition diagnosed by Professor E….  It obviously considered all the evidence in reaching its conclusions.  These conclusions were not that the claimant did not have limitations and exacerbations.  Indeed the Tribunal concluded that he did and that he had needs arising from his condition.  It then proceeded, as it must, to consider whether those were of a duration and frequency which would satisfy the conditions for DLA.  It concluded they were not.  That conclusion is sustainable on the evidence.  That being so I am unable to ascertain any error on the Tribunal’s part in its interpretation of Professor E…’s report.  It was not stating that the claimant did not suffer from the condition as described by Professor E…, but actually acknowledged that he did.  The Tribunal was assessing the claimant’s care and mobility needs as a result of his disablement and in light of the evidence I consider that its assessment was reasonable and sustainable.

17.	I consider, for the reasons set out above, that there was no error in the Tribunal’s decision and I therefore dismiss the appeal.

(Signed):	M F Brown
Commissioner

			13 January 2005