Decision No:  C29/04-05(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 27 April 2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by me, by the claimant against a decision dated 27 April 2004 of an appeal tribunal sitting at Coleraine.  My decision is given in the final paragraph.  The tribunal had disallowed the claimant’s appeal in relation to Disability Living Allowance (DLA) and decided that from and including 27 November 2001 to 3 March 2002 the claimant was not entitled to that allowance.  The background to the tribunal decision was that the Department, by a decision dated 27 November 2001, had superseded a decision in 1994 awarding the claimant the higher rate mobility and lowest rate care components of DLA from and including 22 June 1994.  The decision on 27 November 2001 superseded that decision on the grounds that a relevant change of circumstances had taken place.  This change was that the claimant’s care and mobility needs had lessened.

2.	The claimant appealed to the tribunal and the tribunal conducted several hearings which were adjourned for various reasons prior to the hearing on 27 April 2004 which reached the above decision.  Amongst the adjourned hearings was one dated 21 February 2003.  The record of proceedings at that hearing indicate that the tribunal outlined to the parties that it was not restricted to considering the claimant’s award of benefit up to and including 3 March 2002.  It stated that “in view of evidence in the General Practitioner’s records that the current award of benefit could also be looked at.”  On the basis of that statement the claimant’s representative  requested an adjournment and this was granted.  The record of proceedings in relation to that hearing also records:

“The Legally Qualified Member was concerned that if the major thrust of [the claimant’s] argument was that her condition was stable and had not changed since 1994 then they were concerned that medical reports in the records indicated very minimal disability with a walking ability of between ½-1 mile reports were as recent as 2000.  Reports in recent years do not indicate any significant deterioration in her MS.”

3.	When the tribunal resumed the hearing on 27 April 2004 it was composed of the same panel as at the adjourned hearing.   The record of proceedings for 27 April 2004 records inter alia:

“Reintroduced parties.  Mrs Adair confirmed date under consideration was from the date of supercession (sic) 27 November 2001–3 March 2002 – the date of the fresh claim.  

Legally Qualified Member stated they would not be looking at other periods as contemplated at the last Tribunal as that award has now expired.”

4.	The “current award” and “other periods” appear to refer to a fresh claim received in the Department on 4 March 2002 on foot of which the claimant was awarded lower rate mobility component and middle rate care component from 4 March 2002 to 3 March 2004.  In that fresh claim form the claimant had been asked about her ability when walking out of doors.  She had referred to pain in her back and lower limbs and also stated that she had “poor balance when walking”.  On a subsequent page in the form when asked whether she needed to have someone with her when she was out of doors she stated that she did and stated that she tended to stumble because of the pain in her hip and knees and that she usually had someone with her for support to stop her falling.

5.	The Tribunal disallowed the claimant’s appeal.  That part of its reasoning which has formed the basis of one of the grounds of appeal to me is as follows:

“Regarding the lower rate care component of Disability Living Allowance whilst we accept that [the claimant] only goes out with company we do not believe that she requires for most of the time guidance and supervision when walking out of doors on unfamiliar routes.  We believe the use of a stick would improve her balance.  We accept that while there is some dizziness that it is not so bad as to want either guidance or supervision.  We note that in her fresh claim received by the Department on 4th March 2002 the dizziness was not mentioned as a factor in supervisory requirements when walking out of doors.  We note she can drive and no restrictions have been put in her driving by the authorities or General Practitioner due to her dizziness.”

	I take it that the “lower rate care component” is a misprint for the lower rate mobility component.  

6.	The claimant appealed to me.  The grounds were set out on an OSSC1 Form received in the Commissioners Office on 27 July 2004 and were, in summary, as follows:

1.	In considering the lower rate mobility component the tribunal considered inadmissible evidence, this evidence being the fresh claim received by the Department on 4 March 2002.

2.	The Tribunal failed to make adequate findings of fact with regard to the lower rate of the mobility component in that it failed to refer in its reasons to the claimant’s oral evidence at hearing of panic attacks when she went outdoors and because it failed to expressly consider the representations made on the claimant’s behalf that she required supervision and guidance when outdoors on unfamiliar routes because she suffered from some vertigo which was substantiated in her General Practitioner’s report.

7.	The Department opposed the appeal.  In observations dated 30 September 2004 it submitted that there was no indication in the record of proceedings that the claimant or her representative had objected on the day of the hearing to the tribunal considering the fresh claim documents or that they believed such evidence to be inadmissible.  The Department referred to Article 13(8)(b) of the Social Security (Northern Ireland) Order 1998.  Article 13(8) provides as follows:

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

(a)	need not consider any issue that is not raised by the appeal; and

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

8.	The Department accepted that the claim form was completed on 25 February 2002 and received in the Department on 4 March 2002 and that this was after the date of the decision under appeal (27 November 2001).   It submitted however that the claimant had stated at page 22 of the said claim form that she started having the problems described therein in relation to mobility in June 1993.  It submitted that the tribunal was entitled to consider the fresh claim received on 4 March 2002 as it contained evidence of needs said to exist from June 1993 and therefore it was relevant to the circumstances obtaining up to the date of the decision under appeal.  It submitted that therefore the evidence was admissible and no error in law had been identified.

9.	As regards ground 2 the Department submitted that while panic attacks were not specifically mentioned the tribunal heard evidence from the claimant that if she was out on her own she panicked if she thought she could not make it back or if she went too far.  The tribunal had stated in its reason for decision:

“… whilst we accept that [the claimant] only goes out with company we do not believe that she requires for most of the time guidance and supervision when walking out of doors on unfamiliar routes.”

10.	The Department submitted that this indicated that the tribunal had not accepted that any propensity to panic equated to a requirement for guidance or supervision when walking outdoors.  The Department also submitted that it was incorrect that the tribunal had failed to consider representations that guidance and supervision were required when the claimant was outdoors due to vertigo.  Although the tribunal had not specifically used the term “vertigo” in its reasons for decision it had referred to balance problems and dizziness which were both symptoms of vertigo.  The tribunal had set out in its reasons why it did not accept that these problems resulted in a requirement for guidance or supervision out of doors and as such the tribunal had not erred in the respect contended.  The Department opposed the appeal.

11.	In further observations dated 27 October 2004 the claimant’s representative, Miss McCormack of the Law Centre (NI) submitted that mention had been made by her at the hearing which did indeed question the relevance of the fresh claim documents.  She submitted that these were clearly relevant to the needs on the date of completion of the claim form – 25 February 2002.  The fact that the needs were stated to have started in June 1993 was clearly different from their providing evidence of needs from that date.  This was merely a generalised statement as to when the condition began.

12.	As regards the omission of dizziness as a factor in supervisory requirements when walking out of doors Miss McCormack submitted that it was questionable whether this omission from the claim form should have been considered as evidence by the tribunal in the first instance.  She reiterated her submission that there was no indication that the evidence in the claim form suggested that the care and mobility needs set out therein had any relevance to the date of the decision under appeal.  She submitted that to decide otherwise would mean that all claim forms completed after relevant decisions could be taken into account by tribunals and this would in effect render Article 13(8)(b) superfluous.

13.	With regard to the panic attacks and the dizziness Miss McCormack submitted that there was no evidence that the tribunal had directed its mind to the claimant’s evidence in that respect and submitted further that there was a medical distinction between vertigo and dizziness.

14.	I issued a direction dated 4 February 2005 which set out certain provisional views and directed the parties to make comments as to whether, on the assumption that those views were correct, the tribunal had erred in taking account the new claim form and if so the manner of that error.  I expressed the view that essentially this appeared to relate to whether or not evidence in the new claim form was relevant to the circumstances obtaining at the date of the decision under appeal (27 November 2001).

15.	In a letter dated 9 February 2005 Miss McCormack made her submission in response to the direction.  She submitted that there was no evidence that the needs stated in the new claim form related to needs other than at 25 February 2002, the date it was completed.

16.	The Department submitted in response to the direction that the claimant’s contention throughout had been that her care and mobility needs had not improved since 1994 but, if anything, had deteriorated.  The claimant had stated in the new claim form that she had started to have the problems described therein from June 1993.  Her contention was that her condition was not improving but if anything was deteriorating.  It was therefore reasonable for the tribunal to assume that if dizziness did not give rise to supervisory requirements when walking outdoors in February 2002 then it would not have caused such requirements up to 27 November 2001.  The Department therefore submitted that the decision was not in error of law.

17.	I begin by stating that I do not consider that there is any universal rule that a fresh claim form cannot be considered by a tribunal even though that the form was completed after the date of the decision under appeal.  I also do not consider that a statement that the “problems” related in the claim form began some years previously is necessarily the same as a statement that the “problems” were at the same level when they began.  It is, however, correct that neither dizziness nor vertigo was mentioned.

18.	Both parties have referred to my decision C24/03-04(DLA) where I stated that Article 13(8)(b) of the Social Security (Northern Ireland) Order 1998 prevented the tribunal from taking account of circumstances not obtaining at the date of the decision and did not relate to evidence whenever, it came into being, which is relevant to what the circumstances were up to the date of the decision under appeal.  I also stated with reference to Article 13(8)(b)

“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.”

19.	My views have not changed in this matter.  It is therefore necessary to ask whether the evidence in the first claim form was relevant to the circumstances up to the date of the decision under appeal.  In my view the Department was quite correct in its submission that the claimant was contending throughout that her condition had not improved but, if anything, had deteriorated.  That was, in fact, the basis of the claimant’s appeal against the supersession decision.  That remained her contention right up to and including the date of the tribunal hearing.  She was contending that she was not in an improving situation.  That being so it is quite obvious that the evidence within the fresh claim form could have had relevance to the circumstances obtaining at the date of the decision under appeal.  I therefore consider that the evidence in the fresh claim form was not inadmissible.  

20.	I would also wish to emphasise that it has long been held by Commissioners that the tribunals are not bound by the rules on admissibility of evidence which apply in the ordinary courts.  Mr Commissioner Bano in Great Britain  recently made this point in his decision CDLA/2014/2004 at paragraph 10.  Article 13(8)(b) is not concerned with admissibility of evidence but with circumstances which may be taken into consideration.  It does not say that evidence after a certain date cannot be taken into consideration and it does not say that evidence expressly related to circumstances after the date of decision cannot also be evidence of circumstances at the date of the decision.  To give a hypothetical example, it is quite obvious that if a claimant contended that her walking distance had decreased since the date of the decision under appeal, evidence that after the date of that decision she was able to walk for six miles would be relevant to her circumstances at the date of the decision.  In that example and in the present case it is the claimant’s own contention that her circumstances have not improved or have deteriorated which makes the fresh claim evidence relevant to the circumstances at the date of the decision under appeal.  I consider this ground of appeal to be without merit.  That being so I do not need to comment on whether or not objections were raised to the evidence in the fresh claim form.

21.	As regards the second ground of appeal, I also find this ground to be without merit.  It is quite obvious that the Tribunal was using the word “dizziness” to cover the claimant’s balance problems.  A tribunal’s decision is not a statutory provision nor a deed which should be parsed and analysed word by word.  In common practice words like “vertigo” and “dizziness” will be used interchangeably.  I have no doubt that is how they were used here and indeed “dizziness” was used by the claimant herself.  

	As regards the “panic attacks” mentioned by Miss McCormack, I cannot ascertain any indication that the claimant at hearing said anything other than that she had had one panic attack “quite early” apparently about 1996.  She also stated “If out on own I panic if I think I can’t make it back or go too far, get wound up and breathless.”  This sentence is quite readable as referring to feelings of panic rather than a full blown panic attack. Even the latter does not necessarily lead to a requirement for guidance or supervision.  It all depends on the facts. 

	Against the background of a person of normal intelligence who understood her own limitations it does not appear that those statements were readily understandable as an assertion they led to a requirement for guidance or supervision.  I do not consider the tribunal erred in not specifically commenting on that evidence.  The claimant herself had stated that “dizziness” was her big problem.  I consider there is no merit in the second ground.

22.	However, I do consider that there was an error in this case.  I can trace no indication that the tribunal ever raised any issue arising out of the fresh claim form.  That, in most cases, would not necessarily be in error of law.  The evidence was before the parties and the parties could have made submissions relating thereto.  A tribunal is not obliged to raise with the parties every piece of evidence on which it intends to rely.   However, the circumstances in this case are somewhat unusual in that the tribunal had initially stated that it might be looking at the fresh claim period and had then stated, at the hearing on 25 May 2004, that it would not be doing so.  It is also important to note that it was an omission from the form on which the Tribunal relied.   Against that background, in the absence of this matter being expressly raised by the tribunal, I consider that there was an error of law in that there was a breach of the right to a fair trial.  The claimant should have been given an opportunity to comment on the omission.

23.	I set the decision aside as in error of law for that reason.  I do not consider this is a case where I can give the decision which the tribunal should have given.  I remit the matter to a differently constituted tribunal for re-hearing and re-determination and I direct that the parties be prepared, at that hearing, to deal with all evidence relevant to circumstances obtaining at the date of the decision under appeal.

24.	The claimant wins her appeal.

(Signed):  M F Brown

Commissioner

13 April 2005