[2006] NISSCSC C033_04_05(DLA) (20 April 2006)

Decision No:  C33/04-05(DLA)(T)

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 11 October 2004

DECISION OF A TRIBUNAL OF COMMISSIONERS

1.	This is an appeal, leave having been granted by the legally qualified panel member, by the claimant against a decision dated 11 October 2004 of an appeal tribunal sitting at Belfast.  The Chief Commissioner, in accordance with Article 16(7) of the Social Security (Northern Ireland) Order 1998, directed that the appeal be dealt with by a Tribunal of Commissioners.  The Tribunal of Commissioners is of the view that it can properly decide this matter without a hearing.  For the reasons set out below we dismiss the appeal.

2.	In the appeal to us the claimant is represented, as he was before the tribunal, by Mr P Rankin, Solicitor, of Messrs Murtagh, Breen and Company, Solicitors and the Department is represented by Mr T McNamara of its Decision Making Services unit.  We are grateful to both representatives for their assistance in this matter.

3.	The tribunal’s decision dealt with the claimant’s appeal against a decision of the Department dated 16 April 2004 whereby the claimant was awarded the lower rate of the mobility component of disability living allowance (DLA) from and including 30 June 2004.  A hearing of the appeal was held on 11 October 2004 and was attended by the claimant and Mr Rankin.  No presenting officer attended to represent the Department.  There were no witnesses in attendance at the hearing.  The tribunal decided that the claimant was not entitled to DLA from and including 30 June 2004 and the claimant appealed to a Commissioner.

4.	The grounds of appeal were set out on a COMM 11 form dated 13 December 2004 and were expressly restricted to the mobility component element of the decision. Grounds were amplified in further letters dated 20 May 2005, 4 August 2005 and 16 August 2005.  The grounds essentially were:

(1)	that there was sufficient evidence before the tribunal to enable it to form the view that the claimant would be entitled to an award of the high rate mobility component;

(2)	that the tribunal had failed to conduct a fair hearing and was therefore in breach of Article 6 of the European Convention on Human Rights (ECHR).  It was submitted that there was a clear conflict of evidence between the written evidence of the Examining Medical Practitioner (EMP), to the effect that the claimant had stated to the EMP that he could walk 100 to 200 yards before the onset of severe discomfort, and the appellant’s denial that he had so stated.  The EMP was not in attendance at the tribunal hearing. He had clearly based his opinion on what he understood the claimant to have stated. Therefore the claimant was placed at a disadvantage in that he could not clarify or seek further information as to how such a clear conflict of evidence arose;

(3)	the medical and other evidence before the tribunal (including that of the EMP) clearly established entitlement to the lower rate of the mobility component and the tribunal was not entitled, on the evidence, to its conclusion that the appellant suffered from “a perfectly reasonable apprehension given the unfortunate history of attacks which he has suffered”.

5.	The Department commented on the appeal in letters dated 13 May 2005, 1 September 2005 and 28 November 2005.  Essentially the Department submitted that, on the evidence before it, the tribunal was entitled to its conclusion that there was no entitlement to DLA.  However, in the Department’s submission, the tribunal did not conduct a fair hearing in that Mr Rankin had referred at hearing to the absence of the EMP and this was an implicit request for the EMP’s presence and the tribunal had erred in not dealing with this.  This, in the Department’s submission, was a breach of the inquisitorial role.  The Department did acknowledge that the tribunal could have reasonably expected that a professionally qualified representative would have formally called the EMP as a witness. Nonetheless, in the Department’s submission, the reference to his absence was an implicit request for the EMP to be present and the tribunal should have considered summoning him.  The fact that the claimant was professionally represented did not lessen the tribunal’s inquisitorial role.  The Department further submitted that the tribunal’s reasoning was inadequate in not referring to this matter.  

6.	The tribunal’s record of proceedings shows that the claimant was warned at the outset of the hearing that his existing award was at risk. It records further that Mr Rankin said he had explained this to his client who wished to proceed.  The record shows further that Mr Rankin informed the tribunal that the EMP report stated his client had informed the EMP that he could walk 100 to 200 yards before severe discomfort and his client denied this.  In his self-assessment form the client had said 10 yards.  The EMP examination was in the evening, not the morning.  It further records the claimant as having denied informing the EMP that he could walk 100 yards.  It records Mr Rankin as stating that he felt “at disadvantage because Examining Medical Practitioner not present and also no Presenting Officer.”

7.	The record indicates no request for an adjournment by Mr Rankin and no request for the EMP to be summoned and indeed it has not been submitted to us that any such request was made.

8.	As regards the lower rate of the mobility component the tribunal records as follows:

“Mr Rankin:	... Low rate depends on mental state and hypertension.
Would need persuasion and encouragement in unfamiliar areas.
Supported by medical evidence plus Claimant’s evidence.”

9.	The claimant is recorded as stating as follows: 

“Would never go out of doors on his own.  Does not trust anyone.  Had steel gate and bullet-proof windows.  Now lives in single-storey flat with mother.
Attempts on his life.
Would not go out on his own. 
Was attending Dr Curran but it did not help. …
Even with someone with him he would need to go somewhere close at hand.
Goes to Tesco at Yorkgate.  Accompanied.
Did not feel same degree of anxiety until Johnny Adair book came out.
Home help would get in the day-to-date [sic] shopping.
When he goes to Tesco he sits and waits for friend to do shopping.”

10.	In the claim form the claimant is recorded as stating that he could not walk too far, about 10 metres before he felt severe discomfort, and that he had this amount of difficulty “one days a week of any as I don’t go out at all” and that it took him three minutes to walk this distance.  Asked to give a description of the problems he had and the help needed when out doors the claimant again reiterated that he could not walk too far.  He said further that he did not feel safe if he went too far as there had been five or six attempts on his life.  

11.	In the EMP’s report dated 5 April 2004 the claimant is recorded as stating that he could walk 100 to 200 yards before severe discomfort and that he got pains in his legs.  He is also recorded as stating that he did not need anyone with him on a familiar route.  He is recorded as again referring to having become very anxious after several terrorist attacks on his house and other threats and said he had been shot at several times.  The claimant signed that the statement had been read back to him and that he agreed that the information was full and correct.  

12.	Asked to detail all diagnoses listed in the papers and found at examination the EMP included “Anxiety/depression”.  He found there to be moderate impairment of function of the right lower limb and mild impairment of the left lower limb.  The EMP expressed the opinion that the claimant could walk 200 metres in four to five minutes before severe discomfort, with a limping gait, without physical support and with good balance while walking.  He expressed the view that the claimant was likely to need encouragement to walk in unfamiliar areas due to anxiety.  He considered the claimant’s problems to be partly physical but also to be due to anxiety/depression.

13.	We agree with the Department that the tribunal’s decision was sustainable on the evidence.  There was certainly evidence in the form of the EMP’s report on the basis of which the tribunal was entitled to conclude that the claimant was not unable or virtually unable to walk.

14.	The fact that there was evidence to the contrary does not mean that the tribunal erred in relying on the EMP’s report.  The weight to be given to any evidence is a matter for the tribunal.  The assessment of evidence is essentially a matter of fact to be disturbed only if it is perverse.  We found no indication that it was so in this case.  Rather the reverse, the tribunal’s conclusions in relation to the higher rate of the mobility component were sustainable based on the EMP’s report which included clinical findings and observations.

15.	We come then to the grounds associated with the Article 6 issue.  Here we feel it important to make clear that it has not been contended to us by Mr Rankin that he made any request for the tribunal to adjourn in order that the EMP or the Presenting Officer might attend.  In his appeal to a Commissioner Mr Rankin did observe that he considered the absence of the EMP and of the Departmental Officer was in breach of the principle of equality of arms.  However, it is the Department that has suggested that Mr Rankin’s comment to the tribunal that he felt disadvantaged by the absence of these persons should be construed as an implied request for an adjournment to force their attendance.  We consider there was no such request to the tribunal, whether implied or express.  We consider further that the tribunal was entitled to expect a professionally qualified representative to seek an adjournment to enable a witness to be brought, if one was wanted.  In this connection we would refer to the decision of the Court of Appeal in Northern Ireland in the case of Anne Mongan v Department for Social Development [2005] NILA 16.  Giving the judgment of the court, Kerr LCJ stated at paragraph 18:

“In carrying out their inquisitorial function, the tribunal should have regard to whether the party has the benefit of legal representation.  Where an appellant is legally represented the tribunal is entitled to look to the legal representatives for elucidation of the issues that arise.  But this does not relieve them of the obligation to enquire into potentially relevant matters.  A poorly represented party should not be placed at any greater disadvantage than an unrepresented party.”

The tribunal in the instant case was entitled to expect a professionally qualified representative to ask specifically for an adjournment if he wanted one to enable a witness to be brought.  We consider there was no such request, either express or implied.  We consider that the tribunal did not err as submitted by the Department. We have no doubt that had Mr Rankin wanted the tribunal to adjourn in order to have either person attend he would have asked it to do so.  It follows that, since we consider there was no express or implied request for an adjournment, the tribunal did not err in not mentioning this in its reasons.

16.	Should the tribunal have considered adjourning of its own volition?   Certainly the duty to conduct a fair hearing involves the requirement of equality of arms whether in civil or criminal proceedings (Dondo Deheer B V v Netherlands (1993) 18 EHRR 213). As is stated in that case, this implies that each party must be afforded a reasonable opportunity to present his case, including his evidence, under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent.  It does not appear to us that the claimant was at any disadvantage in presenting his evidence. The claimant had the same opportunity of presenting his evidence as did the Department.  The Department chose to present its case by written submissions and evidence. Copies of both were sent to the claimant prior to the hearing.  The claimant could have taken the same course of action but instead he chose to attend.  The complaint here appears to relate to the fact that the EMP was not there to be cross-examined by Mr Rankin.  Did this fact put the claimant at a disadvantage?  We do not consider that it did.  Nor do we consider that the tribunal should have had any reasonable apprehension that it would.  

17.	It is normally the case that the person who attends has an advantage over the person not attending.  He is able to present his case on a face to face basis, which is a very great advantage indeed.  He can give an immediate and direct answer to any questions which the members may wish to put to him and he can follow up those answers.  He is free to comment on the evidence of the other party without that other person being available to rebut what he says.  He can point to conflicts, inconsistencies and any lack of clarity in what the person not attending says without that person being able to offer an explanation or clarification.  If his own evidence is convincing it will carry great weight when set against that of an absent witness.  There will, of course, be cases where an appellant will wish to cross-examine a witness for the opposing side.  That will normally be a matter for the appellant and his advisers, if any.  It should not be forgotten that cross-examination is a two edged weapon.  Testimony which stands up to cross-examination is strengthened by the process.  Many cases are lost on cross-examination.  Normally it will be for the appellant to make an express, and one hopes carefully considered, request for the presence of a particular witness.

18.	The claimant was able to present his own evidence without being cross-examined on it.  He was able to make full representations about what he considered to be inaccuracies in the Department’s evidence.  He himself was permitted to present evidence, from his own General Practitioner, who was not present.  He was represented at the hearing and the Department was not.  He made his contentions concerning the EMP’s report and the tribunal considered them.  None of the “relevant issues” at paragraph 18 of Mongan were overlooked. The tribunal, had it found the claimant to be a reliable witness, could have accepted his contentions as regards the EMP’s report and proceeded from there without giving the Department an opportunity to respond.  This is a common occurrence. We do not consider that the tribunal should have concluded that there was any realistic possibility of the claimant being disadvantaged either by the absence of the EMP or of the Presenting Officer.  We therefore consider that the tribunal did not err in not considering adjournment and consider there to be no merit in the ground of appeal relating to the non-attendance of the EMP or the Presenting Officer.  

19.	We consider further that the tribunal has adequately dealt with the claimant’s contentions in relation to the EMP’s report and here we differ from the Department.  Although not expressly stated, it is quite apparent from the reasons that the tribunal did not accept the claimant’s contentions about the EMP report. The tribunal referred to the claimant having signed, on the EMP’s report, the acknowledgement that his statement to the EMP had been read back to him and that the information was full and correct.  It referred also to the EMP having given “his own professional opinion” that the claimant could walk 200 metres slowly before the onset of severe discomfort separating this from the EMP’s “recording the statement of the Claimant”.  The tribunal has adequately explained why it reached the conclusion that “the evidence does not support [the claimant’s] contention that the maximum distance before severe discomfort is 10 yards.”  It is quite apparent from the reasons that the tribunal relied on the professional opinion and clinical findings of the EMP as well as the statement as recorded by the EMP and signed by the claimant.  The said conclusion is one which the tribunal was entitled to reach.

20.	We come now to the grounds of appeal relating to the lower rate of the mobility component.  This matter had been raised expressly as an issue in the Department’s written submission to the tribunal which was copied to the claimant.  That submission specifically asked the tribunal to deal with the lower rate of the mobility component.  The tribunal very properly warned the claimant at the outset of the hearing that his existing award (of the lower rate of the mobility component) was at risk.  Mr Rankin indicated that he had explained this to his client who wished to proceed.  The lower rate of the mobility component was therefore properly considered by the tribunal.  Mr Rankin’s submission in relation to this was that the entitlement to the lower rate depended on the claimant’s mental state and hypertension and that he would need persuasion and encouragement in unfamiliar areas.  Mr Rankin stated that this was supported by medical evidence and by the claimant’s own evidence.  The claimant then gave evidence.  He related that he would never go out on his own and told of the security precautions which he took.  He stated that there had been attempts on his life.  He stated that even with someone with him he would need to go somewhere close at hand and that he did not feel the same degree of anxiety until the “Johnny Adair book came out.”

21.	The medical evidence upon which the claimant relied appears to include the EMP report dated 5 April 2004 (the same report which was queried relating to the walking distance).  In that report the claimant is recorded as stating that he did not need anyone with him on a familiar route and stating with regards to depression/anxiety:

“I became very anxious after several terrorist attacks on my house and other threats (I have been shot at several times).”

22.	The EMP found him to suffer from anxiety/depression and expressed the opinion that the claimant was:

“Likely to need encouragement to walk in unfamiliar areas due to anxiety.”

	Asked to describe to what extent the disability described throughout the report was due to physical factors the EMP wrote:

“Part physical but also some anxiety/depression.”

23.	There was also a letter from the claimant’s General Practitioner dated 23 September 2004 in which she stated that the claimant suffered:

“Depression with generalised anxiety disorders.  Initially diagnosed in 1995 but recent deterioration with need for GP support and medication.”

	The GP diagnosed hypertension and indicated that the claimant needed regular blood pressure readings and was on appropriate medication.

24.	The tribunal reasoned:

“Claimant said that he never went out of doors on his own.  There had been attempts on his life and recently he had become more concerned because these were recorded in a new book; this had brought back his feelings of apprehension.  He had in the past attended a Consultant Psychiatrist but this had not given him any help.  It would appear that there has not been any psychiatric intervention in recent years …

So far as the requirements for the low rate of mobility component are concern  [sic], the Examining Medical Practitioner said that Claimant was, “Likely to need encouragement to walk in unfamiliar areas due to anxiety”.  However on perusing the medical records and considering Claimant’s own evidence it was clear to Tribunal that this was not clinical anxiety which would render him “severely disabled mentally” as required by s.73 of Social Security Contributions and Benefits (NI) Act 1992.  It is, rather, a perfectly reasonable apprehension given the unfortunate history of attacks which he has suffered.   Consequently, Tribunal was of the view that the award of low rate mobility component was not appropriate.”

	It appears from the above that the tribunal accepted that the claimant was likely to need encouragement to walk in unfamiliar areas but considered that the need for the encouragement did not come from a disability.

25.	The tribunal was entitled to make the distinction between needs caused by disability and those caused by reasonable apprehension of adverse circumstances.  DLA is to assist people who have care or mobility needs caused by disability not needs, however genuine, caused by social or civil conditions or external threats and which do not come from a disability. Of course a person who suffers external threats may also, perhaps as a result, suffer clinical anxiety or depression.  However, it is the needs coming from that clinical anxiety or depression only which can lead to entitlement to DLA.  The tribunal was entitled to make the distinction which it made.

26.	We then ask ourselves whether the evidence here entitled the tribunal to its conclusion that the needs came from a reasonable apprehension rather than from clinical anxiety.  We consider that it did.  It was quite obvious from the claimant’s evidence that his concerns about going out on his own came from his apprehension of external threat.  In light of the history given by the claimant the tribunal was entitled to conclude that his apprehension was reasonable and did not come from a mental illness. It was entitled also to conclude that it was these reasonable fears, rather than any disablement, which led the claimant to need encouragement to walk out of doors in unfamiliar areas.  Accordingly we dismiss the appeal.

(signed):  J A H Martin QC

Chief Commissioner

M F Brown

Commissioner

J P Powell

Deputy Commissioner

20 April 2006