[2007] NISSCSC C18_07_08(DLA) (20 December 2007)

	Decision No:  C18/07-08(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 29 January 2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal to the Commissioner, leave having now been granted by me, by the claimant against a decision by an appeal tribunal (the tribunal) sitting in Belfast on 29 January 2007.  I have granted leave, although the Department opposed the application.  However, the Department consented to the application being treated as an appeal and any question arising on the application being determined as if it arose on appeal, and the solicitor now acting on behalf of the claimant (the solicitor) has consented in like terms.  The observations of each party have been copied to the other and full opportunity to respond been given to each.  I have given careful and critical consideration to all of the comments made and taken them into account; however, the decision of the tribunal in issue is dated almost a year ago and constituted a reduction by the tribunal of the award made by a decision-maker (DM) on behalf of the Department, which DM’s award was under appeal to the tribunal.  In the circumstances, I intend to deal only briefly with some of the many points made.

2.	An oral hearing had initially been requested on behalf of the claimant although I am not sure if that is still wanted.  In any event, I am satisfied that, in all the circumstances, the proceedings can properly be determined without a hearing.

3.	The decision of the tribunal is wrong in law in a material way.  Accordingly, I set aside its decision and return the appeal for a new hearing.

	Background

4.	The claimant had been in receipt of the higher rate of the mobility component (higher mobility) and the middle rate of the care component for frequent day attention needs (frequent attention) of disability living allowance (DLA) from 3 February 2004 to 2 February 2006 and submitted a renewal claim;  it is the correctness of the award made on that renewal claim which was the issue for the tribunal.  

5.	On 20 March 2006, a DM continued only the frequent attention award, from 3 February 2006 to 2 February 2009;  however, on 23 June 2006, another DM revised the award, so as additionally to include the lower rate mobility component of DLA (lower mobility) as well as the middle rate care component.  The adverse decision under appeal to the tribunal was therefore the original renewal award, but in its terms as subsequently revised.  

6.	There was a report from an examining medical practitioner (EMP) dated 28 February 2006 before both DMs.  The EMP described the claimant as “very depressed” and this was underlined (presumably by the EMP).  While the EMP did not think that the claimant was virtually unable to walk, the EMP did consider that she would need guidance or supervision whilst walking outdoors (along an unfamiliar route) most of the time:

“Very depressed and agitated with disabling phobic attacks – requiring close reassurance outdoors”.

7.	It was also the EMP’s opinion that the claimant lacks motivation and concentration and would need coaxing with getting in and out of bed, dressing and undressing, washing, taking a bath or shower, eating and with various tasks connected with cooking.  

8.	There was a letter from the claimant’s general practitioner (GP) dated 4 April 2006 saying about the claimant:

“She is suffering from fibromyalgia and depression.  She is very unwell and can do very little for herself.  … She cannot go out alone – she needs assistance.  She cannot walk 100 yards”.  

However, it appeared that the GP had refused to release the claimant’s medical records.  

	The Tribunal Hearing and Decision

9.	The claimant attended the hearing with her husband and another solicitor as representative (the representative).  The claimant was also accompanied by a friend.  As is sadly all too often the case, there was no presenting officer (PO) on behalf of the Department.  At the outset, the chairman:

“… [o]utlined the powers of the Tribunal to confirm a departmental decision, increase an existing award of benefit, decrease an existing award, or even remove entitlement altogether.  Against that an appellant could withdraw their appeal at any time up until a decision was made”.

10.	After a lengthy hearing, the tribunal, by a majority, awarded lowest rate care, on the basis of attention needs for a significant portion of the day only, but unanimously confirmed the award of lower mobility;  in each case the award was for the same dates as that made by the DM’s decision under appeal.  I will refer to the tribunal’s reasoning, insofar as relevant, when explaining my own conclusion and reasons for allowing the appeal to the Commissioner, made on the claimant’s behalf by the solicitor.

	My Conclusion and Reasons

	The grounds of appeal which do not demonstrate any error in law

11.	There are many prongs of attack against the tribunal’s decision.  I can deal fairly summarily with the grounds stated to the chairman when seeking leave (in an application which I surmise was not drafted by the solicitor).  There was complaint that the appeal only concerned the mobility element, yet the care element was reviewed and downwards.  This is patently incorrect, because the record of proceedings notes that the representative said that care was not an issue but that the claimant disagreed and continued this stance even after the chairman had adjourned to enable consultation between the representative and his client.  Moreover, as is set out in my paragraph 9 above, at the outset of the hearing, the chairman warned that a tribunal has the power to remove entitlement altogether.  It was further said on the claimant’s behalf that the tribunal should have adjourned of its own motion in order to obtain more medical evidence, standing the GP’s refusal to release the records.  However, there was a GP’s letter on file, as well as the detailed EMP’s report.  There was no request by the representative for an adjournment for the stated purpose;  whether or not to adjourn is a matter of judicial discretion and exercise of that discretion only amounts to error in law if such as no reasonable tribunal could make, which I judge is clearly not the case here.

12.	In the application for leave to appeal lodged directly with the Commissioner on 28 May 2007 and supplemented on 28 August 2007, several further grounds are raised by the solicitor.  An officer on behalf of the Department has responded and does not support any of the points made.  I agree with the Department’s lack of support in the following instances.  In my judgment, during the hearing, there was sufficient exploration of the issue of day needs based on a requirement for encouragement and, indeed, if the representative had not been so satisfied at the end of the lengthy hearing, he could have himself taken up those matters with the claimant then.  With respect to the suggestion that the claimant “requires … support … to engage with her children … and that this is relevant to the issue of frequent attention throughout the day”, there was insufficient material before the tribunal raising any obligation to address it.  It is fully accepted that attention in connection with bodily functions takes account of a claimant’s wish to have a reasonable level of social activity;  but it is quite unclear to me what is the bodily function in issue in the present case.  There is no indication anywhere in the evidence that I can see that the claimant has difficulties in talking to, or hearing, or touching her children.  Encouragement to carry out a bodily function is most certainly capable of constituting attention in connection with that function:  the difficulty in the present case is that the claimant (on whom lies the onus) has not sufficiently identified the impaired bodily function in issue or, moreover, how and what attention is required concerning relations with her children.

13.	Any argument that the tribunal was wrong to give significant weight to its observations of the claimant at the hearing is likewise rejected.  Evaluation of the evidence is a tribunal’s exclusive function and unless there is an irrational or improper approach or it is inadequately explained, a Commissioner cannot interfere;  no perversity is demonstrated in the instant case.  Nor is a tribunal required exclusively to mention every item of evidence in terms provided that, reading its decision as a whole, it is apparent that the evidence has duly been taken into account.  The tribunal expressly refer to the GP’s letter in its reasons for decision in respect of the mobility component, so that its lack of express mention of it relating to care component too does not thereby render the decision erroneous in law.  

	Error of law:  failure to provide adequate reasons 

14.	In issue is a renewal claim.  There is no presumption on a renewal claim that entitlement will be continued at the former rate nor is there any requirement to address consistency as a separate issue.  However, adequacy of reasons is always considered in the context of all the circumstances and the fact of a renewal claim entails an obligation to give reasons which explain why the claim is now decided differently, if such be the case, unless this is obvious from clearly set out primary findings of fact.  The present case is, moreover, one where the tribunal majority adversely altered the DM’s decision which was under appeal to it and without any request to that end from the Department.  While it had the undoubted power to do so, in effect the tribunal was standing in the shoes of the Department in so doing.  This is therefore analogous to a revision decision carried out by the Department of one of its own decisions;  thus, the onus shifted and it had to be shown on a balance of probabilities that lowest rate, rather than middle rate care attention, was required, although the onus with respect to demonstrating highest rate care and higher rate mobility, as appropriate, remained with the claimant.  Against that background, given the evidence and submissions with regard to which adequacy of reasons must be judged, the reasons given by the majority were insufficient, even assuming an informed reader.

15.	With respect to lower mobility, I accept the Department’s point that the supervisory aspect of the care component is concerned with the avoidance of substantial danger, while the supervisory aspect of the mobility component is not so restricted;  therefore, there is no illogicality in accepting the latter as satisfied yet not the former.  I further accept the Department’s comment that the claimant’s submission about help with disabling phobic attacks indoors does not indicate what are the attention needs to which it is suggested these give rise nor suggest what, if any, risk of substantial danger exists due to these attacks.  However, in my view, there is a much more substantial point raising error in law which neither party now addresses.  While the criteria for entitlement with respect to care and lower mobility are certainly different, in the present appeal the source of the functional impairment justifying each component is put forward as ‘severe depression’.  It is inconsistent, without further comment that, with respect to lower mobility, the tribunal is unanimous in finding that she is “very depressed and agitated” whereas, with respect to care, the majority consider the claimant “… was overstating the extent of her mental health …”, and explain why so.  The overall impression given by the majority’s reasoning is that it did not assess the claimant’s case as credible; but was nevertheless content, given the minority opinion and that of the DM and EMP, to leave some of the award intact as a pragmatic compromise.  The result, however, is an inconsistency which, as it stands, undermines the majority’s reasoning.

16.	I appreciate the majority’s dilemma.  Its reasons were set out by the minority member on its behalf.  Moreover, one does not wish to be unduly blunt or the cause of unnecessary distress.  However, the tribunal is a judicial body.  It must set out, albeit politely, such an explanation of its reasoning that a party is able to discern the reasons why his or her evidence has failed to satisfy.  A party may not like what is said but that is a risk taken when one claims an entitlement which must be adjudicated according to legal criteria.  It was inadequate, having set out its view that “overall care needs arising from either mental health or physical health were overstated”, for the majority then simply to opine:

“They feel attention by way of encouraging [the claimant] to carry out tasks of self care, eating, rising etc would be for a significant portion of the day and would not reasonably be required frequently throughout the day”.

17.	In this respect, I wholly agree with the submission put by the solicitor:

“It is submitted that in order to explain this decision which resulted in [the claimant] losing the middle rate of the care component and her husband losing Carer’s Allowance the tribunal should have set out clear findings as to the frequency and duration of the attention by way of encouragement that it concluded she reasonably required.  This is particularly important as the decision was a majority one and the minority was prepared to conclude that the Department’s award of the middle rate of the care component was a reasonable one based on the report of the EMP. The EMP had indicated at page 30 of his report in response to question 17.

“In your opinion, is the disabled person’s mental state such that they require prompting, motivation or encouragement to prevent the risk of self neglect or self harm?  If so, please give details below.  (Only include those tasks which cannot be performed without such prompting, motivation or encouragement.)

Yes. Very depressed.  Needs coaxed with 1.  Daily routine  2.  Personal hygiene  3.  Nutrition.”

As the majority chose to depart in part only from this finding of the EMP it is submitted that it was imperative for it to specify its exact findings of required care to explain to [the claimant] upon what basis her award of the middle rate of the care component was reduced to an award of the lowest rate.”

18.	Yet the majority did accept a need for help with rising although this is inconsistent with the EMP’s report, which had not considered rising to be a problem;  moreover, it is not apparent to me on the face of it, how, if a claimant requires assistance with eating and rising, this is not reasonably necessitated on a spread which is frequent throughout the day rather than merely for a significant portion of the day.  As this point is critical, more specific findings by the tribunal majority were indubitably needed as to when during the day the needs were likely to arise.  It could not fudge this duty due to an understandable wish to leave the claimant with something.

	Summary

19.	The appeal is therefore remitted to a new tribunal to begin again. It is emphasised that there will be a complete rehearing on the basis of the evidence and arguments available to the new tribunal, and in accordance with my guidance above, and the determination of the claimant’s case on the merits is entirely for them.  Although the claimant has been successful in her appeal limited to issues of law, the decision on the facts in her case remains open.

20.	The appeal has again become one against the DM’s decision of 20 March 2006, in its form as revised on 23 June 2006.  It is for the claimant now to discuss with the solicitor whether or not she wishes to continue her appeal to a tribunal or withdraw it.  So far as higher mobility entitlement is concerned (as distinct from lower mobility, which is accepted), there is the point that she must show that a current physical condition plays more than a minimal contribution to her walking difficulties.  So far as care is concerned, the only benefit to the claimant is if she can establish on a balance of probabilities that she has the requisite night needs.  She is already entitled to the middle rate care component of DLA with respect to day attention needs.  Having regard to its powers of which she is now fully aware, it is for the claimant to decide whether or not the advantages of going forward on appeal to a tribunal outweigh the disadvantages.  Sometimes, a bird in the hand is worth two in the bush.  The solicitor will have noted that the Department has now strenuously defended the tribunal’s decision, despite that decision overturning and decreasing the Department’s own award.

(Signed):  L T PARKER

NI Deputy Commissioner
(GB Commissioner)

20 December 2007