[2007] NISSCSC C9_07_08(DLA) (30 August 2007) 

Decision No.  C9/07-08(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 24 August 2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal to the Commissioner, leave having been granted by me, by the claimant against a decision dated 24 August 2006, of an appeal tribunal (the tribunal) sitting in Belfast.  I granted leave, although the Department opposed the application.  However, the Department consented to the Commissioner treating its observations as observations under Regulation 18(1) of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999.  The Department’s observations were sent to the representative acting on behalf of the appellant (the representative) and further observations were supplied by the representative, on which the Department had no further comment.  The representative also agreed to the Commissioner treating the application as an appeal.  An oral hearing had been requested on behalf of the appellant but I am satisfied that, in all the circumstances, the proceedings can properly be determined without a hearing.  I have taken all the observations into account.  I mean no discourtesy to the parties, but I am acutely aware that the tribunal decision in dispute was determined over one year ago and therefore deal with their submissions only insofar as is necessary to explain my own reasoning.

2.	The decision of the tribunal is wrong in law in a material way.  I therefore set the tribunal’s decision aside and return the appeal for a new hearing.

	Error of law

	Failure to take account of relevant evidence

3.	In issue was a renewal claim for disability living allowance (DLA).  The appellant was in receipt of middle rate care component of DLA (for day attention needs) and the lower rate mobility component of DLA from 12 February 2004 to 11 February 2006.  A decision-maker (DM) on behalf of the Department on 7 March 2006 held that there was no entitlement to either component at any rate from and including 12 February 2006; it is that DM’s decision which was in dispute before the tribunal.  The tribunal confirmed the DM’s decision.

4.	In the tribunal’s reasons for disallowing the care component, it stated:

“We have carefully considered the general practitioner letter of 17.8.06.  If he is describing her condition at that date, his letter is irrelevant as we must look at the date of decision 7.3.06.”

5.	It is accepted on behalf of the Department that the tribunal erred in stating that the letter was irrelevant.  The letter from the general practitioner (GP) of 17 August 2006 plainly complemented a letter of 20 April 2006, which earlier one the tribunal failed to mention.  Quite apart from the point that evidence which comes into existence later may still reflect circumstances as they existed at the date of the decision under appeal, the GP’s letter of 20 April 2006 was, of course, more contemporaneous to the DM’s disallowance decision of 7 March 2006 than the later GP’s letter to which only the tribunal referred.

6.	It is, however, submitted on behalf of the Department by its observations dated 14 March 2007 that this error by the tribunal made no difference to the outcome, as the tribunal clearly based its decision on a report from an examining medical practitioner (EMP) dated 4 February 2006; which report, it is further submitted, contained clinical findings which did not substantiate the claimed DLA needs.  But this does not answer the point that the tribunal also relied on information from a clinical psychologist (presumably such information was in the GP records), yet the evidence from the psychologist must have come after 20 April 2006 because in the GP’s letter of that date the GP refers to the fact that the appellant is “… awaiting to see a psychologist”.  The information from the psychologist could well reflect the appellant’s condition at the date of decision under appeal to the tribunal; nevertheless, it has to be irrational for the tribunal to rely on the psychologist’s statement without further comment in that respect, while at the same time dismissing the GP’s letter of 7 August 2006, because “if he is describing her condition at that date, his letter is irrelevant as we must look at the date of decision 7.3.06”.

7.	In my judgment, therefore, the overall treatment of the correspondence from the GP is erroneous in law and vitiates the tribunal’s decision, so that it must be set aside and returned for a new hearing.

8.	I have to say, although I have extensive experience of reading manuscript medical evidence, both as a Chairman and as a Commissioner, I had the utmost difficulty in deciphering the EMP’s report in this case.  I strongly recommend that the Department has a typed version made available for the new tribunal.

	Summary

9.	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.  However, I make some general points for the guidance of the new tribunal, which I hope will prove helpful.

	Disablement

10.	A Tribunal of Commissioners in Great Britain in R(DLA)6/06 set out the correct approach at paragraph 13:

“The approach to “disablement” for the purposes of sections 72 and 73 was recently considered in the Tribunal of Commissioners’ decision CDLA/1721/2004 (now reported as R(DLA) 3/06), particularly at paragraphs 33 and following.  In that decision, in summary, the Commissioners identified the following propositions:

(i)	DLA is a benefit for people who are so disabled that they need help to cope with their disability.  The purpose of the benefit is to assist with the reasonable care and mobility requirements that result from disability.

(ii)	“Disability” is distinct from “medical condition”, “disability” being entirely concerned with a deficiency in functional ability, ie a physical or mental ability to do things.  Whilst a medical condition may give rise to a disability (eg a condition that involves the loss of a limb would give rise to an obvious diminution in functional capacity), it may not do so (eg a life threatening but asymptomatic heart condition may not have any adverse impact on one’s ability to care for oneself or be mobile without assistance).  Sections 72 and 73 are entirely focused on disability.

(iii)	However, the statutory provisions impose a number of limitations.  First, the claimant must be disabled, ie have some functional incapacity or impairment.  He must lack the physical or mental power to perform or control the relevant function.  Second, even where there is a functional incapacity, that alone is insufficient for entitlement to benefit – for the purposes of sections 72 and 73(1)(d), the disability must be severe ie the disability must be such that it results in the claimant requiring the degree of assistance identified in the legislation (eg under section 72(1)(a)(i), the claimant must require attention for a significant portion of the day).

(iv)	The Commissioners conclude (at paragraph 42) that sections 72(1) and 73(1)(d) give rise to two issues.  (i) Does the claimant have a disability, ie does he have a functional deficiency? (ii) If so, do the care or mobility needs to which that functional deficiency gives rise satisfy any of paragraphs (i) or (ii) of section 72(1)(a) to (c) (and, if so, which) or (for the lower rate of the mobility component) section 73(1)(d)?

11.	In the letter of 20 April 2006 from the GP, he says that the appellant “… has some depression and anxiety”.  In the letter of 17 August 2006, the GP says that the appellant “… continues on antidepressants which do help, and she has attended psychology but still has some problems”.  Neither the EMP nor (apparently) the psychologist find there to be depression or anxiety.  However, the EMP diagnosed “fatigue” and “low mood/labile emotions”, and it would, of course, be possible for these to constitute the necessary functional impairment.  Nevertheless, the tribunal quite properly took into account the appellant’s continuing ability to drive a car, as it is an entirely reasonable, albeit not an inevitable inference, that a person able to do so is insufficiently “confused, flustered and panicky” such that she satisfies entitlement to the lower rate mobility component.  I note that such an ability is also relevant to issues arising under the cooking test.  The key question in the present case seems to be whether or not the appellant can establish, having regard to the totality of the evidence, (the onus of proof lies on her in a renewal claim) that, through disablement, she cannot reasonably be expected to function at the level envisaged by the statutory criteria without prompting and encouragement.

12.	The tribunal relied heavily on the clinical findings of the EMP, as it was entitled, although by no means bound, to do.  The appellant has complained that the inferences drawn by the EMP are incorrect, for example that she “… could walk a quarter of a mile in six to seven minutes”.  These are secondary, not primary, findings of the EMP, however; the EMP’s clinical findings are primary findings of fact.  I do not, therefore, agree with the representative that the appellant has, as yet, disputed the EMP’s clinical findings, as distinct from the EMP’s opinions based on those findings.  The appellant is, of course, free to dispute the clinical findings if she now wishes to do so (although this is a very difficult task without supporting medical evidence) and, in any event, the tribunal is not bound, when applying the statutory tests, to draw the same conclusions from those clinical findings as did the EMP.  It is an expert tribunal, and matters of judgment on the factual application of the statutory test are exclusively for it as the adjudicating authority, unless its exercise of judgment is such that no reasonable tribunal could make on the basis of the facts found and having regard to the evidence.

13.	What is in issue for the purposes of the cooking test is “… a main reasonable daily meal for one person”.  There are, therefore, inevitably some relevant differences in what is required to cook such a meal when compared with what is necessary for a family meal.  The obvious example which was given with respect to the latter is the use of heavy pans or dishes.  However, as the representative correctly points out, some problems will be germane to an ability to cook a main meal, irrespective of how many the meal is cooked for (although the level of difficulty will surely increase as the numbers involved do).  An example is what the appellant told the tribunal, viz that she would get flustered and could not cope with timings.  It is for a tribunal to make the relevant distinctions.  However, it is impractical for a tribunal to point up all the differences and, provided that, taking its statement as a whole, it shows that such relevant distinctions have been taken into account, this is enough.  It is a question of degree whether the stage has been reached at which a claimant has established that she is not, taking a broad view of the matter, someone who can fairly be described as one who is able to prepare a main meal for herself and that this incapacity is through disablement, whether mental, physical or combined.

14.	I set out the matter thus at paragraph 8 of CSDLA/649/2006:

“Thus, the assessment is of what this appellant can or cannot reasonably do on a daily basis without help, having regard to the combination of her accepted disablements, physical and mental.  Reasonableness is the key factor and relates to all aspects of the test; for example, is it reasonable for a person to sit doing the meal preparation, can a reasonable variety of meals be prepared in this way, does it take an inordinately long time to do so and even then can the meal be ready so that all items are available to be eaten at least substantially at the same time?  These are the kinds of matters to be taken into account in evaluating a claimant’s difficulties in cooking a main meal for one person.  They are matters of fact and degree and such matters are exclusively for a tribunal so long as its exercise of judgement is such as a reasonable tribunal could make on the basis of the facts found after asking the right questions and having regard to the accepted evidence.”

	Provided a tribunal makes apparent that it has under consideration the cooking of a main meal for one person, it is not required to deal in minute detail with the distinctions between that task and cooking a meal for a family.  There has to be a sense of balance in what a tribunal is required to set out in its statement.  Provided it makes sufficient findings of primary fact, underpinned by evidence, and having addressed all material matters, to justify its decision, and adequately explains how it weighed the evidence and shows that it took into account all relevant evidence, it is not required expressly to mention every conceivable aspect of cooking and specifically related, moreover, to preparing a meal just for one person, when the context of the whole decision makes clear why it decided as it did in light of the submissions made.

15.	I reiterate, however, that all matters are now for the new tribunal: the findings of primary fact, the inferences from those findings and the application of the statutory tests.  The new tribunal is neither bound to follow the approach of the former tribunal, nor precluded from doing so; the new tribunal must adjudicate as it considers right so to do, having regard to all the evidence and argument then available to it but taking account of my guidance above.

(signed):  L T PARKER

NI Deputy Commissioner
(GB Commissioner)

(Dated) 30 August 2007