[2007] NISSCSC C38_06_07(DLA) (18 September 2007) 

Decision No:  C38/06-07(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 18 October 2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant, with the permission of a legally qualified panel member, against the decision of the appeal tribunal sitting at Downpatrick on 18 October 2006 (the “appeal tribunal”).  For the reasons which I give, that decision is erroneous in point of law.  I therefore set it aside and remit the matter to a differently constituted tribunal (the “new tribunal”) for a complete rehearing.

2.	The issue which the appeal tribunal had to determine was whether the claimant was entitled to either or both components of disability living allowance (DLA).

3.	The claimant, who was born on 26 June 1962, and who claims on the basis that she suffers from compression fractures of three vertebrae in her upper back, arthritis in her back and left knee and breathlessness from the pain in her back, applied for benefit on 26 July 2004.  On 6 October 2004, a decision-maker decided that she was not entitled to either component from and including 26 July 2004.  The claimant appealed.  Unfortunately, her medical reports proved difficult to obtain and, despite efforts to ensure that the appeal was dealt with without delay, the substantive hearing did not take place until 18 October 2006.  The claimant attended that hearing, together with her representative, and gave evidence.  Her appeal was, however, dismissed unanimously.  She now appeals to a Commissioner with the leave of a legally qualified panel member.

4.	It is appropriate to mention one matter at an early stage.  The claimant made a further claim for DLA.  On 3 January 2006, she was awarded the lower rate of the mobility component and the lowest rate of the care component, on the basis that she lacked the ability to plan or prepare a main meal for one, for the period from 2 September 2005 to 4 March 2007.  This means that the new tribunal will only be concerned with the period up to, and including, 1 September 2005.

5.	As already stated, the claimant’s appeal was dismissed by the appeal tribunal.  Her representative then applied for leave to appeal on a number of grounds.  The application for permission came before a legally qualified panel member on 1 March 2007.  Permission was granted on the basis of three specific grounds all of which related to the manner in which the appeal tribunal had dealt with a report, in the form of a questionnaire, dated 21 September 2004, and completed by a person to whom the claimant referred to in her claim form as a senior occupational therapist at the disability resource centre run by her local hospital.  I consider that the legally qualified panel member was correct to grant permission on these grounds and I propose confining my attention to them.  The remaining grounds of appeal are, at best, unpersuasive and some of them are misconceived.

6.	The occupational therapist’s report was obtained because the claimant had said that the person concerned would be able to tell the Department for Social Development about her illnesses and disabilities.  In fact, her claim form contained a number of further references to the occupational therapist and to recommendations which she had made.  When I first read the report I assumed from these references that this person was heavily involved in the claimant’s care.  The appeal tribunal may have formed a similar view.  However, the claimant now says, in her grounds of appeal, that the maker of the report had “… only ever seen the appellant on one occasion at her house, and this was for the purposes of a recommendation for a NIHE grant.  The appellant is now concerned that the Tribunal has mislead [sic] itself in thinking that the Occupational Therapist has a clear understanding of her conditions”.  I note that the chairman’s record of proceedings records that the claimant told the appeal tribunal that “[the occupational therapist] saw me once”.

7.	The report itself is a simple document.  It is, as stated, in the form of a questionnaire and is mainly completed by ticking boxes.  It is dated 21 September 2004, and begins with the answer “27/07/04” to the question “On what date was the patient last seen?”  The claimant is said to be able to rise from a suitable chair, walk safely indoors, eat and drink and attend to her own toilet needs.  She is, however, said to have difficulty at least in getting in and out of bed and dressing and undressing.  She does not require physiotherapy to be performed by others.  The occupational therapist answered “No” to the question whether the claimant had had any falls and again “No” to the question whether there was a significant risk of falls on the level indoors.  The next question was “Is the patient able to walk outdoors, without the help of another person?”  The occupational therapist ticked the “Yes” box in answer.  She was then asked to “describe the [claimant’s] walking ability on level ground while using appropriate aids, and without the help of another person, before the onset of severe discomfort (approx distance in metres/yards)”.  She replied “No detailed assessment of above completed”.  She recorded that the claimant did not use appropriate aids when walking.  Finally, and in response to a request to “add any further details you think might help your patient’s claim” she said “Client’s ability can fluctuate depending on back pain.  All assistance to perform transfers and domestic activities of daily living is provided by family members”.

8.	Pausing there, I make a number of comments.  First, I accept and endorse what Mrs Commissioner Brown said in R2/04 (DLA) that the weight to be given to any particular item of evidence is a matter for the tribunal whose conclusions can only be disturbed “… if that conclusion as to weight is one which no reasonable Tribunal could have reached”.  That is fundamental to the system of tribunal appeals.  However, these questionnaire form reports do need to be approached with caution.  Particularly if a tribunal is minded to draw an inference from something which the maker of the report has not said.  There will be occasions when it is right to draw such an inference but a tribunal should think long and hard before doing so.

9.	The appeal tribunal, in relation to both components, relied heavily on the report when it came to explain its reasoning.  The grounds of appeal which commended themselves to the legally qualified panel member who granted leave related to the report and the appeal tribunal’s use of it.  A number of specific criticisms are made of that use.  Some of these criticisms might be difficult to adjudicate upon in the light of the principles stated in decision R2/04 (DLA).  However, I consider that I do not need to do so.  This is because I take the view that the appeal tribunal erred in the following way.  It will be recalled that the occupational therapist did not answer the question put to her about the claimant’s ability to walk when outside.  When dealing with the mobility component, the appeal tribunal said this.  Having referred, as they were entitled to, to their decision in relation to the care component the members of the appeal tribunal said:

“We prefer the evidence of the Occupational Therapist dated 21 September 2004.  We accept that the Occupational Therapist did not assess the Appellant’s walking ability outdoors on level ground.  However we are satisfied that, given the extent of the Occupational Therapist’s knowledge of the appellant’s condition she is adequately qualified to express a reliable opinion in her ability to walk outdoors without the aid of an appropriate walking aid….”

	However, and with due respect to the tribunal which had the advantage of both seeing and hearing the claimant and reading her general practitioner’s (GP) notes, I do not consider that the inference which they draw from the occupational therapist’s failure to answer the question about how far the claimant could walk before the onset of severe discomfort was a proper inference to draw.  I consider this to be the case even if the occupational therapist’s involvement with the claimant had been over a number of visits or assessments.  All the more so if, as the claimant says is the case and as she appears to have told the appeal tribunal, the occupational therapist had met her on one single occasion.  The occupational therapist had actually declined to answer the relevant question in the absence of a detailed assessment.  The proper inference to draw was that she did not know how far the claimant could walk before she began to experience severe discomfort.  There is no evidence which suggests that the occupational therapist was familiar with the basis on which awards of the mobility component are made.

10.	The result is that I allow the appeal on this, limited, ground.  Since I am allowing the appeal it is unnecessary for me to deal with the other grounds of appeal which relate to the report and I do not do so.  I mention however, that I do not consider that there has been any breach of Article 6 of the European Convention of Human Rights.  I remit the matter to the new tribunal.  That body should conduct a complete rehearing.  The weight to be attached to her report is, of course, a matter for the new tribunal.  However, this report, like all similar questionnaire form reports, does need to be read with caution and does need to be considered in conjunction with the other medical and other evidence.  The extent of the occupational therapist’s involvement with the claimant, and the number of times she has seen her, are important factors and need to be taken into account when assessing her evidence.  The new tribunal will need to see the GP’s notes and other medical evidence that was before the appeal tribunal.

(signed):  J P Powell

Deputy Commissioner

18 September 2007