[2006] NISSCSC C5_06_07(DLA) (16 May 2006)

Decision No:  C5/06-07(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 23 May 2005

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This case begins as an application for leave to appeal against a decision dated 23 May 2005 of an appeal tribunal sitting at Belfast.  I grant leave and with the consent of Mr Hatton of the Law Centre (NI), representing the claimant and Mr Kirk of Decision Making Services branch representing the Department 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.

2.	The tribunal disallowed the claimant’s appeal against a Departmental decision dated 8 January 2005 that the claimant was not entitled to disability living allowance (DLA) from and including 28 October 2004.  I think it important to indicate the tribunal’s reasoning.  It has stated quite clearly at several points in its reasoning that it does not believe the claimant’s evidence.  It has also alluded to the question of pain and referred in particular to decision C16/98(DLA).  It has also referred to the need for attention to be reasonably required and in this connection has referred to Commissioner’s decision C46/96(DLA).

3.	The claimant’s grounds for appeal were set out on the OSSC1 form received on 12 October 2005 and amplified in further observations dated 16 March 2006.  The Department made observations on the appeal by letter dated 9 December 2005.  The grounds for appeal were two-fold:

(1)  That the tribunal had failed to provide adequate reasons for its decision.  Mr Hatton submitted that the tribunal did not address the issue of pain though this was obviously, from the claimant’s general practitioner (GP) report, an important issue in the appeal.  Mr Hatton submitted that the tribunal had not addressed the points set out in my decision C16/98(DLA) which he submitted set out a number of issues to consider in relation to pain.  He submitted further that the tribunal had recorded what the evidence stated, referred to applicable case-law and then stated its conclusions.  He submitted that the tribunal had given no explanation as to why it felt attention was not reasonably required nor why it felt it was reasonable to expect the claimant to perform listed tasks when she experienced discomfort as a result.  As a result of this the claimant was left not knowing why her claim to benefit had failed and this was an error in law.

(2)  The tribunal had reached a conclusion not based on the evidence before it and had drawn unreasonable inferences from the GP factual report.  In this connection Mr Hatton referred particularly to question 7(a) on that report and the GP’s responses thereto.  Question 7(a) and the GP replies were as follows:

Replies
“What difficulty does the patient experience
Low back pain/leg pain
while walking on level ground with regards to:

(a)	the maximum distance in metres/yards
	that the patient could walk before the
	onset of any severe discomfort and how
	long would this take?
Not recorded”

	As part of its reasoning the tribunal recorded:

“The Tribunal believes if the Appellant was virtually unable to walk most of the time and if the effort of walking was dangerous for her and if she had falls, it is reasonable to assume that her GP would have been made aware of this and [the GP] would have stated this in his report.”

4.	Mr Hatton sought clarification from a Commissioner on whether such reasoning and drawing such inferences was in error of law.  He submitted that it was and specifically referred to decision CDLA/4580/2003, a decision of Mrs Commissioner Jupp in Great Britain and in particular to paragraphs 11 and 12 thereof.  I comment later on the relevance of that decision to this present case.

5.	Mr Hatton submitted that the tribunal in this case had treated the reply from the GP as a basis for a finding of fact that the claimant was not virtually unable to walk.  In his submission the medical evidence was at worst neutral on the issue and at best indicative that the claimant would suffer pain while walking.  

6.	Mr Hatton submitted that the tribunal in the appeal had erred in law by treating a lack of evidence as a basis for a finding of fact.

7.	Mr Kirk commented on the appeal by letter dated 9 December 2005.  He opposed the appeal.  In relation to the first ground, that relating to the reasons, Mr Kirk submitted that the tribunal had made it abundantly clear that in its view the claimant overstated her disability.  It had clearly recorded that the medical evidence did not support the level of claimed care needs.  It referred to the GP’s factual report and the replies to the questions set out therein.  Mr Kirk referred particularly to the GP’s replies to question 5 of the report stating (in my view correctly) that Mr Hatton had erroneously referred to question 5 replies as being replies to question 6.  In that question the GP is asked to comment on whether the claimant can safely manage to do various items unaided and replied ‘Yes’ to them all but had indicated that the claimant can probably do these things but in discomfort.  At question 6 he is asked if there is any history of falls and indicates ‘No’ though stating that there are certain factors that may predispose the claimant to falls including -

“Low back pain, leg pain, anxiety, feeling shaky.”

8.	Mr Kirk referred also to the tribunal’s reasons for its decision.  He extracted the following passage:

“The appellant indicated in her self-assessment form dated 29 October 2004 that she had substantial care needs.  She stated that she needed help to carry out the majority of her bodily functions.  She also ticked that she required encouragement or reminding to carry out some of her bodily functions.  She also stated that she could fall anywhere and that she would stumble quite a lot.  The Appellant also referred to care needs in her letter of appeal and oral evidence.  

The tribunal does not believe this evidence of care needs and finds that the Appellant does not satisfy the conditions of entitlement for the care component in light of the available medical evidence.  The report from Dr [], General Practitioner (GP), dated 21 December 2004 listed the Appellant’s medical conditions and stated that although in discomfort the Appellant could safely and unaided manage to carry out all the listed bodily functions.  He stated that she had no recorded history of falls.  Dr [] also stated that she was the main carer for her son.  The Appellant confirmed in her self-assessment form that she did not need someone to keep an eye on her during the day and night.  

The Medically Qualified Panel Member explained that there was no evidence found in the GP records that indicated that the Appellant had any care needs or that she had any falls.  The x-ray of her lumbar spine dated 27 July 2002 stated that she had disc space narrowing at L5/S1, which may be a congenital anomaly with a transitional lumbo-sacral junction, but that there were no secondary degenerative changes.  The report from Dr G…., Consultant Anaesthetist, dated 25 June 2004 stated that the Appellant complained of mechanical low back pain with a neuralgic-type feeling of restlessness in her legs.  He stated that on examination she was tender over the low back.  He recommended a trial of Tens and acupuncture and a low dose of gabapentin medication.  The report from Sister H… dated 23 July 2004 stated that the Appellant failed to attend the Pain Clinic for the trial of Tens.  The GP clinical record dated 27 July 2004 stated that the Appellant used the diazepam as a muscle relaxant when her period was present because that was when the back pain was worse.  The Belfast City Hospital Accident and Emergency Department record dated 13 January 2005 stated that the Appellant attended complaining of difficulty micturating over the previous week but that she had no pain.  The findings on examination were that she was mildly tender over the suprapubic but that she had normal power and tone of her lower limbs and reflexes and sensation were normal.  A diagnosis of urinary tract infection was made and she was advised to increase her intake of fluids and discharged.”

9.	Mr Kirk submitted that it was clear from the above that the tribunal concluded that the claimant did not reasonably require attention with her bodily functions and once it had reached that conclusion there was no need for it to make any reference to the contended discomfort.  Mr Kirk therefore submitted that there was no error in that ground of appeal.

10.	As regards the second ground of appeal Mr Kirk commented on the submissions in relation to CDLA/4580/2003.  He submitted that the GP, when replying to the questions on the difficulties which the claimant experienced when walking, had recorded low back pain and leg pain and stated that there was no record of the maximum distance the claimant could walk before the onset of severe discomfort and he had no details of any impairment of gait, balance, any aids used or physical support needed. The Department submitted that the GP was stating in effect that he had no recollection of the claimant having any such problems nor were there any details recorded in his notes.

11.	The Department submitted further that on reading the reasons for its decision the tribunal’s findings were based on all the available evidence which included the GP notes and records and the claimant’s self-assessment form.

12.	Mr Kirk referred to my decision C10/05-06(DLA) paragraph 8 as support for his submission that the tribunal’s decision should not be dissected in the manner of a statute but that the reasons should be read as a whole.  Particular parts should not be isolated from their context and from the remainder of the reasons.  He submitted that when the reasons for the tribunal’s decision were considered in their entirety it was clear that the decision was based on the GP notes and records as well as the oral evidence and GP factual report.  The tribunal’s references to the GP’s responses were merely indicating what it felt to be a discrepancy between the stated level of needs and the GP factual report.  Mr Kirk therefore submitted that the tribunal did not err as contended in the second ground of appeal.

13.	By letter of 16 March 2006 Mr Hatton offered further observations.  He continued to submit that the tribunal’s reasons were inadequate.  He referred to decision CDLA/3034/2000, a decision of Mr Commissioner Levenson in Great Britain and in particular to paragraph 9 thereof as indicating the need to explain why the tribunal concluded that help was not reasonably required and submitted that the tribunal had not adequately so explained.

14.	Mr Hatton submitted further that the questions asked of the GP in relation to the ability to safely and unaided carry out certain tasks did not specifically address the criteria for entitlement to DLA.  There was, in his submission, no requirement that a claimant be unsafe when carrying out a bodily function for there to be a reasonable requirement for assistance in connection with it.

15.	As regards the first ground of appeal it is quite clear that the tribunal did not believe the claimant’s evidence in the claim form.  This is, of course, a matter for the tribunal.  In relation to the issues of pain and the requirement that attention be reasonably required it is also quite obvious that the tribunal has had these matters in mind.  Indeed it has quoted authorities in relation to them.  The tribunal has indicated quite clearly the standards set by the authorities i.e. that attention must be reasonably required and that where relevant the matter of pain when performing bodily functions must be taken into account.  It has then reached its conclusion in relation to the claimant’s needs for assistance.  It has obviously relied on the medical evidence in reaching those conclusions and has stated that if the claimant’s physical or mental condition was such that she needed help or encouragement from another person to carry out her bodily functions or the main meal tasks and if she had falls she would reasonably have been expected to have brought this to the attention of her GP and for him to have so stated in his report.  The tribunal clearly so states in the penultimate paragraph of its reasoning.

16.	Reading the tribunal’s reasons as a whole I consider that Mr Kirk is correct that the reasons are adequate to explain the decision.  The tribunal has not relied solely on the GP factual report.  Putting it shortly in light of the medical evidence the tribunal thought that the claimant was exaggerating in her claim form and that her care and mobility needs were not at a level which would satisfy the conditions for DLA.  It indicated clearly that it had borne in mind that the requirement for attention was one of a reasonable requirement and it had also borne in mind that pain etc had to be taken into consideration.  The medical evidence taken into consideration was not merely the GP’s report.  There were objective x-ray findings and clinical examination findings.  No-one has raised an issue that the tribunal’s reliance on the other medical evidence was in any way unreasonable and I find that there is no error in the tribunal’s reliance thereon.  I consider there to be no merit in this ground of appeal.

17.	I come then to the second ground of appeal i.e. whether the tribunal has reached a conclusion not based on evidence before it and has drawn unreasonable inferences from the GP factual report.   In relation to the factual report the tribunal has stated as regards the mobility component:

“… The tribunal believes if the Appellant was virtually unable to walk most of the time and if the effort of walking was dangerous for her and if she had falls, it is reasonable to assume that her GP would have been made aware of this and [the GP] would have stated this in his report.  The Tribunal also believes that the use of a walking stick would reduce any risk of falls occurring. …

The Tribunal believes if the Appellant’s mental or physical condition was such that it warranted a need for guidance or supervision when outdoors, it is reasonable to assume that her GP would have been made aware of this and [the GP] would have stated this in his report.  The Tribunal also believes that the use of a walking stick would reduce any risk of falls occurring.”

	As regards the care component the tribunal states:

“The Tribunal believes that the Appellant overstated her disability.  The Tribunal believes if the Appellant’s physical or mental condition was such that she needed help or encouragement from another person to carry out her bodily functions plus the main meal tasks and if she had falls she would reasonably have been expected to have brought this to the attention of her GP and [the GP] would have stated this in his report.”

18.	Mr Hatton is, of course, correct that the standard in relation to the care component is that of reasonable requirement for attention in connection with bodily functions.  It is not whether or not a function can safely be managed.  However, the ability to do something safely is a factor which is relevant to whether attention is reasonably required.  Similarly the fact that a claimant actually does do something, while not conclusive as to whether or not attention is reasonably required, is a factor which can be taken into consideration.  It is also correct that the fact that there is discomfort in carrying out a task is relevant to whether or not attention is reasonably required.  None of these factors is necessarily conclusive as to whether or not attention is reasonably required.  It is all a matter within the judgment of the adjudicating authorities.  A Commissioner cannot interfere with that judgment unless the conclusion reached is unreasonable.

19.	The situation in the present case is quite different to that being dealt with by Mrs Commissioner Jupp in decision CDLA/4580/2003.  In that case, as Commissioner Jupp stated at paragraph 11, the tribunal clearly interpreted a GP’s statement that he did not know what distance the claimant could walk before the onset of severe discomfort as a positive statement that the claimant did not have any difficulty with walking.  The GP had stated “unknown” in response to a request for information as to the distance a claimant could walk before the onset of severe discomfort.  At paragraph 12 of the decision Mrs Commissioner Jupp stated that a tribunal must treat that reply as neutral in the absence of further qualification or amplification and that it was not a comment upon which a finding of fact should be based.  

20.	In the present case there was a positive reply from the GP that the claimant could safely and unaided albeit in discomfort do various matters and a clear statement that there was no history of falls, although he did indicate that certain factors would pre-dispose the claimant to falls.  The GP when asked about difficulties that his patient experienced while walking on level ground with regard to maximum distance in metres and yards that she could walk before the onset of severe discomfort and how long that would take, replied “Not recorded”.  When asked what difficulty the patient experienced while walking on level ground with regard to details of any impairment of gait, balance, any aids used or physical support needed the GP replied, “None”.  He did qualify these replies with a statement written above the specific replies as follows:

	“Low back pain/leg pain”

	Asked if he was aware of any attention or supervision to enable his patient to get around on unfamiliar surroundings most of the time the GP replied, “Not recorded”.  

21.	There are positive statements included in these replies as to the ability to safely manage certain tasks and to do them unaided, as to there being no history of falls and there being no impairment of gait, need for physical support etc. I do not agree that the tribunal based its findings of fact on the GP’s reply of “Not recorded” in relation to walking distance.  Rather it considered that the fact that the claimant had not seen fit to inform her GP of certain matters (which had been put in her benefit claim form) as indicative of exaggeration of her condition for benefit purposes.  It did not use neutral statements as positive ones as happened in CDLA/4580/2003.  It considered absences from the records as indicative of a lack of credibility.

22.	I have already dealt with the question of absences from medical records in decision C26/05-06(DLA).  Mr Hatton having sought extra time to make submissions in part because he had just received that decision, actually made no submission on it.  In that decision at paragraph 10 I expressed the view, to which I adhere, as follows:

“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.”

23.	That is precisely, in my view, what happened in this present case.  The tribunal had the records and the report and it took into consideration the absence therefrom of certain matters.  It also took into consideration various positive findings recorded ie that the claimant had normal power and tone of her lower limbs and reflexes and sensation were normal when she attended Belfast City Hospital Accident and Emergency Department on 13 January 2005 and x-ray findings of 27 July 2002 as well as various statements by the claimant’s GP.

24.	Mr Hatton has also mentioned decision CDLA/3034/2000, a decision of Mr Commissioner Levenson.  Again the background to that decision is very different to this present one.  In that case there is no indication that the tribunal considered the claimant as anything other than completely genuine in his claim in relation to care needs.  Mr Commissioner Levenson considered that the tribunal had failed to investigate the extent to which the claimant had to “struggle” as indicated in his GP’s report and set the decision aside for that reason.  There is no indication that the tribunal in CDLA/3034/2000 had, as had the tribunal in this present case, medical records.  

25.	In this case I do not consider there was any need to investigate further.  The inquisitorial role was adequately carried out by the tribunal which had the records before it. Unlike CDLA/3034/2000 the objective findings in the present case did not support the claimant’s stated needs, particularly the x-ray in July 2002 and the examination report of 13 January 2005.  The GP in this present case indicated that the claimant could perform tasks safely and unaided but with some discomfort.   The tribunal in CDLA/3034/2000 appears to have accepted that the claimant had very considerable difficulties but nonetheless concluded that he did not require assistance.  It ignored the question of reasonable requirement for assistance.  That is not the case here as the tribunal’s reasons make absolutely clear.  

26.	It is essentially a matter of judgment for a tribunal as to whether or not a degree of discomfort is accepted.  It is also a matter of judgment as to whether or not that degree of discomfort leads to a reasonable requirement for attention.  The tribunal in this case has exercised its judgment on what are essentially matters of fact ie whether or not attention is reasonably required.  Mr Hatton submits that the claimant is, from the reasons, unable to understand why the tribunal considered help was not reasonably required.  The tribunal has indicated it considers that the claimant exaggerated her problems.  It has referred to the medical evidence on which its view is based.  This includes x-ray and examination findings.  The tribunal has also recorded that it had in mind the standard of reasonable requirement of care.

27.	The tribunal has obviously taken on board the GP’s report of 21 December 2004.  That report, as previously mentioned, indicated that the claimant could safely and [my emphasis] unaided, albeit with discomfort, carry out various tasks, washing, rising, dressing, sitting, standing, walking, preparing and cooking a meal and using stairs.  The tribunal has recorded that the GP records reveal nothing to indicate care needs or falls.  It does not reject the GP report of 21 December 2004 as its reference in context to decisions C16/98(DLA) and C46/96(DLA) reveal.  Taking on board all the evidence including the fact that she did not tell her GP of care needs and falls, and exercising its judgment (as it was entitled to do) the tribunal has concluded that any such discomfort was not sufficiently bad as to mean that attention or encouragement was reasonably required.  The reasoning could, perhaps, have been more succinct and structured.  It is, nonetheless, adequate to explain the decision to a reasonable person reading it.  Put shortly, having considered and assessed the evidence, the tribunal considered the claimant to be exaggerating and that such discomfort as she did have did not mean that attention was reasonably required.

28.	I find no error in the tribunal’s decision.  The appeal is therefore dismissed.

(signed):  M F Brown

Commissioner

16 May 2006