[2006] NISSCSC C26_05_06(DLA) (13 February 2006)

Decision No: C26/05-06(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Application by the claimant for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 11 May 2005

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This case begins as an application by the claimant for leave to appeal against a decision dated 11 May 2005 of an appeal tribunal sitting at Belfast.  I grant leave and with the consent of both parties treat the application as an appeal and determine any question arising thereon as if it arose on appeal.  My decision is given in the final paragraph.  The tribunal had disallowed the claimant’s appeal against a departmental decision dated 26 July 2004 which refused to change an existing award of the lower rate mobility component of disability living allowance (DLA) from and including 21 September 1996.  I held a hearing of the application.  The claimant did not attend but he was represented by Mr McVeigh of the Citizens Advice Bureau and the Department was represented by Mr McGrath of Decision Making Services branch.  I am grateful to both representatives for their considerable assistance in this matter.

2.	At hearing Mr McVeigh informed me that he was abandoning any grounds or submissions which related to the non-awarding of the higher rate of the mobility component.  I think Mr McVeigh is correct to do so.  On the evidence before me it appears quite apparent that the claimant did not at the relevant time satisfy any of the conditions relating thereto.

3.	Mr McVeigh put forward four grounds of appeal.  The first ground was based on decision CDLA/4580/2003, a decision of Mrs Commissioner Jupp in Great Britain.  Based on that decision Mr McVeigh contended that the tribunal had erred in law in deciding that, as there was no record in the General Practitioner (GP) notes of self-neglect or any need for continual supervision by day or watching over at night to avoid substantial danger to the claimant or others, these needs did not exist.

4.	Mr McVeigh submitted secondly that the tribunal had erred in not exploring further whether the claimant had night-time needs and/or supervision needs.  The tribunal had stated in its decision that:

“No night time needs were mentioned.  No supervision needs were mentioned.”

5.	As a third ground Mr McVeigh submitted that the tribunal had erred in not sufficiently exploring the claimant’s needs for encouragement.  

6.	His fourth ground, which he described as the main issue was that the tribunal was not entitled to its conclusions in relation to the claimant not being on medication for vertigo.  Mr McVeigh submitted that in fact the claimant was on medication, this medication being Prochlorperazine.  The claimant had been on this medication for five to ten years.  This conclusion, in Mr McVeigh’s submission, had affected the entire assessment of credibility.  The tribunal should have explored the matter more fully with the claimant before reaching its conclusion.

7.	Mr McGrath opposed the appeal.  He submitted that the tribunal had not erred in relation to its inquisitorial role.  With regard to the night-time and supervision needs the GP factual report dated 9 July 2004 indicated that there was no history of self-harm.  The tribunal was entitled to take that into account.  With regard to encouragement, the claimant had stated that he needed encouragement, to shower and change clothing.  The tribunal has taken this into consideration and dealt with it in the reasons.  The claimant stated that he had no difficulties with self-medication.  

8.	As regards the ground in relation to vertigo Mr McGrath submitted that it was unclear from the evidence in the file if the claimant had vertigo and in any event he had indicated that it was under control.  If the tribunal had erred in relation to that matter it was not enough to vitiate the decision, the vertigo being under control.  If it was under control it was difficult to see what needs would emanate therefrom.  Even if the tribunal should have raised with the claimant the fact that there was no mention of vertigo in the GP records, any omission to do did not vitiate the decision in light of the fact that the vertigo was under control with medication.

9.	As regards the first ground of appeal, that based on CDLA/4580/2003 I consider this ground to be misconceived.  Commissioner Jupp’s decision related to a tribunal having misinterpreted what a doctor had stated.  As Commissioner Jupp stated in paragraph 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. …”

10.	To begin with Commissioner Jupp was referring not to GP records but to a statement by the GP.  She decided, quite correctly in my view, that the tribunal in that case was not entitled to interpret the GP’s statement that he did not know what distance a claimant could walk as being a statement by the GP that a claimant did not have any difficulty with walking.  That is very different indeed from the situation where a claimant is stating that he suffers from very severe problems and a GP does not have any indication thereof.  It is perfectly reasonable for the tribunal to view the entirety of the evidence before it and to expect that a claimant would have mentioned severe problems to his GP.  He has, after all, seen fit to mention them to the social security authorities in claiming benefit and it is only to be expected that if the problem is genuine it would be mentioned to his GP.  I do not say that in any particular case a tribunal is bound to assume that an absence from the GP records means that a claimant’s evidence is not credible but it is a factor which the tribunal is certainly entitled to take into consideration in assessing the credibility of evidence given to it.  In CDLA/4580/2003 there was a misinterpretation of a GP’s statement.  In this case there was no misinterpretation of the records.  The tribunal simply considered the fact that there was no mention of certain problems in the GP records as a factor in assessing the reliability of the claimant’s evidence.  This it was entitled to do.

11.	Having said that, however, I do think that in such cases it is good practice and in certain cases it may be erroneous not to mention such a crucial matter to a claimant.  The claimant may have an explanation to offer in relation to such absence from the records.  It is a matter for the tribunal whether it accepts any such explanation.  It may accept or reject it.  It is not necessary for me to decide whether there was such an error in this case as I am setting the decision aside for different reasons.

12.	As regards grounds two and three I do not consider that there was any breach of the inquisitorial role as contended by Mr McVeigh.  It is quite apparent from a perusal of the record of proceedings that the tribunal explored with the claimant any needs which he claimed he had.  It would appear that, with regard to night needs, the claimant stated that he could toilet himself and there was no indication from the evidence that any watch was needed over him at night to prevent him from harming himself.  It is reasonable for a tribunal to expect a claimant to mention his major problems at hearing when his needs are being explored.  The only mention of danger of self-harm was the claimant mentioned that he had been suicidal and tried to grab the steering wheel of the car.  The tenor of the evidence was that this was one incident and in the past.  This claimant appeared to remain in his bedroom from 6.00 pm onwards and there was no indication that anyone had to watch over him.  He could toilet himself, could wash himself, could get up to get his grandson at 8.00 am and, it appears, could make himself a cup of tea.  There does not appear to be any indication that he needed watching over by night or needed any encouragement other than to shower.   Against that background I do not consider that there was any breach of the inquisitorial role in the tribunal not exploring this matter further.  The claimant was accompanied by his daughter and neither mentioned any further need for encouragement or supervision other than was taken into consideration by the tribunal.  Neither, apparently, was there any indication in the GP records that the claimant had any history of self-harm and no record of any self-neglect or any need for continual supervision by day or watching over at night to avoid substantial danger.  Against that evidential background I can see no reason for the tribunal to explore the matter further.  I consider there is no merit in grounds two and three.

13.	I come then to the fourth ground, that relating to the medication for vertigo.  Here, I do consider that there was an error of law.  There appears to have been no dispute that the claimant asserted that he was on prochorperazine.  It is also clear that he was contending that he suffered from vertigo.  The prochorperazine is mentioned as a medication currently prescribed in the GP’s factual report dated 9 July 2004 and it is a medication which appears to be prescribed, although not necessarily in this case, for vertigo.  That being so I consider that the tribunal was not, at least without further exploration, entitled to conclude that same was not prescribed for vertigo.  It may be that in the light of the GP’s records, which are not before me, the tribunal was entitled to conclude that same was not prescribed for vertigo, I do not know. However, in light of the claimant’s contentions regarding vertigo it should have been raised with him that he was not on any medication for vertigo.  

14.	I come then to consider whether or not this error vitiates the decision.  Mr McGrath is correct in his contention that the claimant stated in his application dated 27 February 2004 that his vertigo was under control by his prochlorperazine medication.  That being so the tribunal could conclude that while he was on medication for vertigo the vertigo was not a major problem.  That, however, was not what this tribunal concluded.  It concluded that he was on no medication for vertigo and it did not raise the matter with him.  I am unable to say whether or not the prochlorperazine was prescribed for vertigo but the tribunal should, as I indicated above, have explored that matter with the claimant which it did not appear to do.  I consider that the tribunal’s assessment of the claimant’s credibility was affected by its conclusion that:

“His complaint of a tremble and vertigo (see his appeal letter) are not borne out by the General Practitioner records and he is on no medication for these.”

	It appears to conclude that the claimant did not suffer from either condition. While it may well be that the prochloperazine kept the condition under control and that the claimant in fact had no needs arising therefrom I do consider that there was inadequate exploration of the matter and that the tribunal’s conclusion affected its entire assessment of the claimant’s credibility.  That being so I consider that there was, in these circumstances, an error of law because this matter was not adequately explored.  I set the tribunal’s decision aside for that reason and I remit the matter to a differently constituted appeal tribunal for rehearing and re-determination.

15.	I would, however, advise that even if it is ascertained that the claimant is on medication for vertigo and/or trembling this does not necessarily mean he will be found to have any needs arising therefrom.  That is a matter for determination by the new tribunal.  My having set this decision aside is not an indication of the future substantive result.

16.	I direct the new tribunal to have before it a copy of this decision and to consider raising with the claimant, who is now on notice that the matter may be raised, the absence from the GP records of any indication of self-neglect or need for continual supervision and the question of whether or not medication is prescribed for vertigo and a tremble.

17.	It would be helpful to the tribunal if, the claimant now being in receipt of experienced advice, he would clearly indicate to the tribunal precisely what rate and component of DLA is being sought and precisely why he considers he satisfies the relevant statutory conditions in relation to same.

18.	The Claimant wins his appeal.

(signed):  M F Brown

Commissioner

13 February 2006