Decision No:  C39/03-04(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 23 September 2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by the legally qualified member of the tribunal, against the decision of the tribunal affirming a decision maker’s decision, by way of supersession, to the effect that the claimant is not entitled to either component of disability living allowance (DLA) from and including 8 January 2003. 

2.	A renewal claim was made by the claimant in respect of the period from 27 September 2000 on 16 May 2000.  The basic grounds were that the claimant suffered from depression and hypertension.  After a report was completed by the claimant’s general practitioner it was decided on 20 July 2000 that the claimant satisfied the conditions of entitlement for the lower rate of the mobility component and the middle rate of the care component from 27 September 2000 until 26 September 2003.  Some time after 18 September 2002 a copy of a medical report form IB85 dated 18 September 2002 was received in the disability living allowance branch from the incapacity benefits branch.  On 18 December 2002 another report was completed by the claimant’s general practitioner.  On 8 January 2003 the decision of 20 July 2000 was superseded and it was decided that the claimant was no longer entitled to either component of DLA from and including 8 January 2003.  The claimant then appealed to a tribunal.

3.	On 23 September 2003 the tribunal unanimously affirmed this decision.

4.	The legally qualified member, who was the chairman of the tribunal, made the following record of the tribunal’s proceedings: 

“1.   Documents Considered:
Appeal submission and indexed bundle.
General Practitioner’s notes – Dr D J O’H, Crumlin Road Health 	Centre.

RECORD OF PROCEEDINGS [including evidence considered and details of the adjournment application (if any)]
[The claimant] has asked the Tribunal to proceed with his appeal in his absence.  With benefit of the notes from his General Practitioner on this occasion.

Ms McDonald for the Department says clear grounds for discontinuance of previous awards.  Psychiatrist has not seen him apparently since October 2002 – illness characterised by setbacks but he does not appear to self neglect and he can go out on his own. There has been an improvement and we think the disallowance was correct.”

The tribunal papers included a letter from the claimant received on 11 June 2003 referring it to a copy of a decision notice of another appeal tribunal dated 14 March 2003, allowing the claimant’s appeal in an incapacity benefit (IB) case.

5.	The tribunal in the present case gave the following reasons for its decision in relation to the mobility component:

“The medical evidence considered by the panel is listed in the Reasons for Decision in respect of the Care Component.

[The claimant] stated in his DLA questionnaire that he had no physical problems walking; this is consistent with all the medical evidence and so the high rate of the mobility component is not in issue in this appeal.

[The claimant] also said that he rarely went out alone because he could suffer from panic attacks.  In particular he said he found it difficult to tolerate public transport, crowds or strangers and that he would need his wife or children for reassurance.  There is no evidence of any cognitive impairment to explain why he might be unable to seek directions from a stranger in an unfamiliar place.

The test to be applied is whether [the claimant] is so disabled mentally that, disregarding his ability to use familiar routes on his own, it would be completely unreasonable to expect him to walk out of doors without guidance or supervision most of the time.  The date under review is 8 January 2003.

[The claimant] twice declined to attend the hearing of his appeal, with or without company, and so we have no more direct evidence available than is contained in the written submission and the surgery notes.  However it is not clear to us what actions [the claimant’s] wife or children would have taken around the beginning of this year to ensure that [the claimant] did not have panic attacks, or how their presence would diminish the effect of a panic attack, when they accompanied him to unfamiliar places.

In his report of 18.12.02 Dr O’K says in answer to Q.10 that he is not aware of any attention and/or supervision being required from another person to enable [the claimant] getting around in unfamiliar places most of the time, although Dr O’K does record panic attacks as a feature.

The Incapacity Benefit medical report records that [the claimant] was able to attend the medical examination on the day of examination and that he seemed to cope reasonably well.  He was noted as being able to communicate well that day and that he could go out alone for a walk.  [The claimant] says in his appeal letter that he does not go any further than local shops (Abbey Centre).

On the balance of the evidence, we consider that the test for the low rate of the mobility component was not met on 8 January 2002 and that the Department had grounds for superseding the earlier award”.

As the care component was no longer an issue – see paragraph 12 below – normally the reasons for that part of the decision would not be relevant.  However, as the reasons for the two components are inextricably linked, I set out the tribunal’s reasons for its decision in relation to the care component, as follows:

“In addition to the evidence [the claimant] has put forward in the DLA form about his medical condition we have had the benefit of reading not only the 3 medical reports in the Department’s submission but also the notes in his general practitioner’s file.  [The claimant] declares no physical disability in his DLA form and the needs and limitations he sets out are caused by mental and not by physical ill health.  This is also consistent with all the medical evidence.

There are 2 reports from Dr O’K - in the Department’s submission - and respectively dated 7.7.00 and 18.12.02.  The third report - … - was prepared on 18.09.02 by a doctor from the Medical Referee Service for the purposes of [the claimant’s] claim to Incapacity Benefit.

In his first report Dr O’K, general practitioner, describes [the claimant] as presenting with depression/anxiety and hypertension.  In the second report of 8.12.02 Dr O’K repeats the same diagnosis although this time adding “panic attacks” as one of the conditions.  Dr O’K says in both reports that the approximate date of onset of the condition was 6 February 1997 and in both reports the medicines and dosages prescribed differ little.  We accept that [the claimant] has suffered long term symptoms of anxiety and depression.

We are obliged to consider firstly the question of whether the Department had grounds to supersede (overturn) the earlier award and then go on to consider if the statutory tests for any rate of the care component are met by the evidence.  Finally, we must consider [the claimant’s] condition at the date on which the Department made the decision under appeal which was 8 January 2003.

The medical evidence closest in time to the decision date, and therefore evidence to which we would attach considerable weight, is Dr O’K’s second report.  According to his doctor, [the claimant] could self medicate, could safely be left unsupervised by day and night, there was no history of self harm although he may have been prone to self neglect because of lack of motivation.

Prior to an incident at the Belfast Institute in the summer of 2002 in which [the claimant] was disgracefully intimidated, along with other students, it is evident that to his credit he was well enough to attend a training course.  The Incapacity Benefit report of September 2002, prepared just under 4 months prior to the decision under appeal, reports that [the claimant] does not self neglect, that he cooks a little and that he goes out alone to walk.  He can drive or walk to Abbey Centre shopping complex.

The surgery notes reveal that [the claimant] was last reviewed by Dr L, consultant psychiatrist, at Alexandra Gardens Day hospital in October 2002.  His only medication at that time was noted as Mirtazapine 30mgs nocte (standard dose).  At that time he had been unable to re-start his course at BIFE and some fluctuations of mood were noted, but otherwise Dr L observed that [the claimant] was “coping quite well” and he had “not arranged a further review but would be pleased to see him again on request.”

[The claimant] remained unwell in January 03 but on all the medical evidence, and the members of the panel bringing their own judgment to bear, [the claimant] is not so disabled as to meet the conditions for this benefit.  On the basis of all the medical evidence before us, including in particular the estimation of [the claimant] ’s doctor that he could safely be left unsupervised by day and night, we accept that the Department had grounds on 8 January 03 to supersede the previous award of the middle rate of the care component and that [the claimant] did not satisfy any of the tests of the care component at any rate.”

6.	The claimant, now represented by Mr McVeigh of the Citizens Advice Bureau, sought the leave of the chairman to appeal to a Commissioner and such leave was granted on 17 December 2003. 

7.	A hearing of the appeal was arranged at which Mr McVeigh represented the claimant, who was not present, while the Department was represented by Mr Kirk of Decision Making Services.

8.	The first ground of appeal was that the tribunal had erred in law by misinterpreting the statutory test for entitlement to the care component as set out in section 72 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, by failing to take into account the support and encouragement required by [the claimant].  However, Mr McVeigh at the hearing indicated that he was no longer relying on this ground as it was, to some extent, based on a misunderstanding and that he did not feel able to argue that there was any error of any substance in the tribunal’s decision in this respect.

9.	The second ground of appeal was that the tribunal failed to give adequate reasons to support its decision to disallow entitlement to the lower rate of the mobility component of DLA.  In particular, he submitted that the tribunal erred in relying on the general practitioner’s answer to question 10 in the report of 18 December 2002 in which a doctor stated “N/A” (which I take to mean “not applicable”) in answer to the question; “Are you aware of any attention and/or supervision (which can include reassurance, cajoling, encouragement) required from another person to enable the patient to get around in unfamiliar places most of the time?”  Mr McVeigh submitted that this was a very particular question and somewhat different to the direct questions asked elsewhere in the form.  He relied on Great Britain decision CDLA/4580/2003 in which Mrs Commissioner Jupp stated at paragraph 11 and 12 as follows:

“11.   I accept that it is clear that the tribunal interpreted the general practitioner’s statement that he did not know what distance the claimant could walk before the onset of severe discomfort as meaning that the claimant did not have any difficulty with walking; what I do not accept is that the tribunal was right to make this interpretation.  Although it is an interpretation often made, it is without justification.  If a doctor cannot confirm that a patient has no walking problems, this raises an equal possibility that the claimant may have such problems.  A tribunal should not conclude that general practitioners know a patient’s overall condition, and would indicate if there were any problem.  In many circumstances, the general practitioner completing the enquiry form may not know the claimant personally, and have no information from the patient’s papers on which to base an opinion.  In this case the claimant confirmed she knew the general practitioner “fairly well” according to the Record of Proceedings, yet he dealt only with her angina (…).

12.   Where a general practitioner states “unknown” in response to the request for information as to the distance the claimant can walk before the onset of severe discomfort, the tribunal must treat that reply as neutral, in the absence of further qualification or amplification, and the doctor’s comment is not a basis for a finding of fact.  In this particular case, I contrast the reply of “unknown”, given to the question as to walking ability with the reply to question 5 which states “please describe any abnormality of his/her gait, balance or speed of walking”, where the same general practitioner in this case has replied “none known”.  That is an indication confirming there is nothing in the claimant’s medical notes or his recollection of his patient which indicates any such problems.”

10.	However, as Mr Kirk pointed out, in the present case the general practitioner did not state that anything was “unknown” but, rather, stated that the question was “not applicable”.

11.	In my view the tribunal was entitled to support its reasoning by referring to the doctor’s answer to question 10 which was to the effect that he, the doctor, was not aware of any attention and/or supervision being required from another person to enable the claimant to get around in unfamiliar places most of the time.

12.	Mr McVeigh also submitted that the tribunal ought to have considered adjourning the appeal for further evidence, as it appears in its reasoning to have taken the view that it would have wished to have had more direct evidence other than the written submission and the surgery notes.  However, the tribunal had already adjourned the case which was originally intended to be a paper hearing and had done its best to encourage the claimant to attend the resumed hearing as an oral hearing.  In the circumstances I do not consider that it is appropriate for me, hearing an appeal on a point of law, to come to the conclusion that the tribunal erred by dealing with the case on the substantial evidence available for it.  Mr McVeigh also submitted that the tribunal erred by stating that “the test to be applied is whether [the claimant] is so disabled mentally that, disregarding his ability to use familiar routes on his own, it would be completely unreasonable to expect him to walk out of doors without guidance or supervision most of the time.”  Mr McVeigh submitted that the statute referred to “unreasonable” rather than “completely unreasonable” and in applying that test the tribunal erred in law.

13.	However, there appears to have been a misunderstanding as the relevant statute, namely section 73 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 states as follows:

“73(1) Subject to the provisions of this Act, a person shall be entitled to the mobility component of a disability living allowance for any period in which he is over the relevant age and throughout which – 

(a)…

(b)…

(c)…; or

(d) he is able to walk but is so severely disabled physically or mentally that, disregarding any ability he may have to use routes which are familiar to him on his own, he cannot take advantage of the faculty, out of doors without guidance or supervision from another person most of the time.”

Therefore, the statute does not use or refer to the terms “unreasonable” or “completely unreasonable”.  The use of these terms arises out of case law and I will deal with these issues in the next four paragraphs.

14.	Has the tribunal erred in the respect alleged?  Mrs Commissioner Brown in R2/99(DLA), a reported decision, set out at paragraph 19 what she considered to be the relevant test under section 73(1)(d) at paragraph 19;

“It therefore seems to me that a claimant, to satisfy the conditions of section 73(1)(d) of the Act has to show that by reason of physical or mental disablement, he is either actually unable or it would be completely unreasonable to expect him to take advantage of his faculty of walking out of doors on unfamiliar routes (and routes are not the same as areas) without guidance or supervision from another person most of the time while walking.  It would not be sufficient to qualify for it merely because it is reasonable for a person to be supervised.  For something to not be allowed (whether by the claimant or another) it must be completely unreasonable.  The test of whether or not it is so unreasonable would be an objective standard, ie what a reasonable person would consider impermissible.  Tribunals and other adjudicating authorities, when dealing with entitlement to the low rate of the mobility component, should ask the following questions –

(1)	Can the claimant walk?

(2)	Is the claimant so severely disabled physically or mentally that, disregarding his ability to use familiar routes on his own, he is actually unable to walk out of doors without guidance or supervision most of the time?

(3)	Is the claimant so severely disabled physically or mentally that, disregarding his ability to use familiar routes on his own, it would be completely unreasonable to expect him to walk out of doors without guidance or supervision most of the time?

If the answer to question 1 and either question 2 or question 3 is yes, provided other conditions are satisfied the claimant will be entitled to lower rate mobility component.  If the answer to question 1 is ‘no’ there will be no such entitlement and if the answer to questions 2 and 3 is ‘no’ there will be no such entitlement.”

15.	While I, in C41/98(DLA), an unreported decision, cast some doubt on the concept of “complete unreasonableness” in a decision relating to the care component and, in particular, section 72(1)(a)(ii), that decision did not relate to the lower rate of mobility component.

16.	In any event, Mrs Commissioner Brown in C18/99(DLA), another unreported decision, at paragraph 11 has satisfactorily resolved any slight disagreement between R2/99(DLA), (the reported decision) and C41/98(DLA) by holding that the word “completely” is tautologous in the circumstances.

17.	Accordingly, I conclude that the tribunal has not erred in the respect alleged and, whilst I would prefer the word “completely” not to be used in the standard question asked by tribunals when considering section 73(1)(d), I do not consider that there is an error in law in this particular case because of the use of the word “completely”.

18.	A third point arose at the hearing of the appeal before me.  The issue was whether the DLA appeal submission to the tribunal should have provided information explaining how and why the incapacity benefit medical report form (IB85) was obtained and shared with DLA branch.  Arising out of this the question arises whether such a failure constitutes an error of law in the circumstances.  An opportunity was given to the representatives to make further written submissions in these matters.

19.	The circumstances of the receipt of the IB85 by DLA branch became an issue in the case.  Therefore the basic factual background set out in paragraph 2 herein had to be expanded to understand what had happened.  According to the Department the following was the sequence of events:

“.	[The claimant] was awarded the lower rate mobility component and middle rate care component from 27 September 1999.

 .	[The claimant] was examined by a medical examiner on 18 September 2002 and his report (IB85) was forwarded to IB branch.

.	On 4 November 2002 the decision maker decided that [the claimant] did not score sufficient points to pass the PCA therefore his claim for IB was disallowed from and including 4 November 2002.

.	[The claimant] appealed this decision on 4 November 2002.

.	A copy of the IB85 report was forwarded to DLA branch on 19 November 2002 with a covering minute.

.	On 14 March 2003 an appeal tribunal decided that [the claimant] did satisfy the PCA and re-instated IB from and including 4 November 2002.

.	On 23 September 2003 an appeal tribunal disallowed [the claimant’s] appeal against the decision to disallow his award of DLA from and including 8 January 2003.”

In addition it appears that IB branch has no record of DLA branch informing it of any DLA decision, either before or after the IB85 report was referred to it.

20.	I asked specifically for comments on the Great Britain Commissioner’s decision CDLA 2998/2003, a decision of Mr Commissioner Williams, which has similarities with the present case.  In the Great Britain case the claimant was also in receipt of IB and the disallowance of the DLA was instigated by the receipt of an approved doctor’s report.  Again, as in the present case, the DLA appeal did not mention why the report was obtained from IB branch, nor did it mention the fact that subsequently there was a successful challenge to the IB decision in an appeal to an appeal tribunal.  However, as also in the present case, the tribunal had further medical evidence which was relevant to the entitlement conditions for DLA and it based its decision on this additional evidence.

21.	Mr Commissioner Williams, at paragraph 11 of the decision, held that it was fundamental to the production of the evidence that those who seek to rely on evidence before a tribunal make full disclosure in relation to that evidence – so if there is a challenge to the evidence, the tribunal must be told.  Mr Commissioner Williams also held that the fair production of evidence requires that it should be clear why additional evidence, such as an approved doctor’s report, has been obtained when the process is not automatic.

22.	Mr McVeigh relies on this case to support his submission that the tribunal erred in law.  However, whilst there is no overt explanation why the IB85 form was made available to DLA branch, I agree with Mr Kirk that it is implicit from the case summary in the appeal submission that the IB85 form was forwarded because it raised a doubt about possible entitlement to DLA.

23.	The tribunal was aware that the claimant’s IB appeal had been successful but the criteria for receipt of IB and DLA are entirely different.  It is clear that the tribunal directed its collective mind on the legislative test for DLA.  Unlike the decision maker, who based his decision on the IB85 as well as a report from Dr O’K from the claimant’s general practice, the tribunal also had evidence from more detailed notes from the general practice.  It is clear that the tribunal dealt with the medical evidence in an exemplary way and has come to an entirely sustainable conclusion on that evidence.

24.	I am reminded of the relevant words of Mrs Commissioner Brown in paragraph 15 of C5/00-01(DLA) set out as follows:

“15.  I am also satisfied that the evidence of the Examining Medical Officer and the Incapacity Benefits Medical Report were both correctly before the Tribunal.  Mr Breslin is correct in stating that the tests for Incapacity Benefit and for Disability Living Allowance are different.  However, information obtained in connection with one benefit can be relevant to the entitlement to another benefit though a decision on entitlement in relation to one benefit is not binding in relation to entitlement to the other.  Also, of course, the assessment of evidence by one Authority does not bind another.”

The IB85, therefore, was relevant to the issues in the DLA case and was properly considered by the tribunal.

25.	In addition Mrs Commissioner Brown’s comments set out below; in C51/99-00(DLA) at paragraphs 18 and 19 are also relevant: 

    	 “18.  I can see no objection to the Incapacity Benefit medical report being forwarded to the Disability Living Allowance Branch.  Indeed as the Department has charge of the payment out of public money it is advisable that it has the fullest information available.

19.  lt therefore does not appear that the Adjudication Officer or the Tribunal were in ignorance of the Incapacity Benefit appeal having been successful.  Even if they had been, I do not consider that their respective decisions would have been in error of law for that reason.”

So even if the Tribunal had not been aware of the result of the IB case, the tribunal decision in the present DLA case would not necessarily have been in error of law for that reason.

26.	However, the tribunal had been informed by the claimant of the other tribunal’s decision in the IB appeal.  I would have expected it to have been informed by the Department of the earlier decision and to some extent it is regrettable that it was not.  Just as Mr Commissioner Williams criticized the Secretary of State in CDLA 2998/2003 (at paragraph 13), I consider it only right to criticize the way the Department presented the case to the tribunal.  Nevertheless, as was also the case in CDLA 2998/2003, the tribunal was not misled in any way. Accordingly, there was no error on the part of the tribunal in deciding with the issues that were properly before it.  Therefore, the claimant is not assisted by the third issue that has arisen in this case.

27.	Therefore, for the reasons stated, I dismiss this appeal.

(signed):  John A H Martin

Chief Commissioner

18 January 2006