CH-v-Department for Social Development (DLA) [2011] NICom 163
Decision No:  C69/10-11(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 11 January 2010

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant, leave having been granted by a Commissioner on 16 November 2010, against the decision dated 11 January 2010 of an appeal tribunal sitting at Belfast.  The tribunal had disallowed the claimant’s appeal against a Departmental decision dated 28 July 2009 and decided that the claimant was not entitled to either rate of the mobility component of disability living allowance (DLA) or any rate of the care component of DLA from 2 October 2009.

2.	The claimant was represented by Ms Jacqui Loughrey of the Law Centre (NI) while the Department was represented by Mrs Claire Hulbert of Decision Making Services.

3.	The claimant was in receipt of the lowest rate care component of DLA from 10 March 2006 to 1 April 2007.  From 2 April 2007 to 1 October 2009 she was awarded higher rate mobility and lowest rate care component.  She made a renewal claim for DLA on 16 April 2009.  On 28 July 2009 a decision-maker disallowed her claim from and including 2 October 2009.  The claimant requested a re-consideration of this decision on 11 August 2009.  A decision-maker on 24 August 2009 carried out a reconsideration of the decision dated 28 July 2009 but decided that it should remain unchanged.  A letter of appeal was received on 3 September 2009.  The appeal was heard on 11 January 2010 and, as stated at paragraph 1 herein, the tribunal confirmed the decision.

4.	The tribunal gave the following reasons for its decision:

“The Claimant described suffering from fibromyalgia and depression.  She described her family, either her sister or her son staying with her 3/4 days per week.  But also said that her son stayed with her 3 times per week.  She described her sister coming to see her if she was unable to get out of bed perhaps 3/4 days per week but only staying perhaps for an hour.  The number of days and level of need described did not seem wholly consistent on these figures.  The Claimant also described undergoing 2 treadmill tests in 2007.  She said she could not manage this.  The first time she said she could not do it at all.  In fact she managed over 4 minutes according to the record of the first occasion and over 7 minutes on the second.  She also described, subsequent to a significant deterioration of her condition she stated had occurred at the beginning of 2009, being able to walk from the City Hall gates to the corner of the City Hall grounds.  She described being able to drive, being able to get up and bath slowly and with the aid of her stick, being able to use a microwave, being able to manage stairs.  She also described taking medication for depression though her medical records showed this was lasting longer than one would expect if she was taking it at the prescribed dosage.  In March 2009 at a review visit on change of doctor she described herself as taking it “occasionally”.

The Tribunal concluded on the basis of this evidence including its slight inconsistencies that the Claimant did suffer from fibromyalgia and depression but not with the severity and frequency she described.  While there would be occasions when pain would be involved, occasions when she would require help and days she would find problematic the Tribunal considered that most days she would be able to walk a reasonable distance at a reasonable but slow pace and with the aid of a stick.  The Tribunal also considered that, taking her time, she would be able to manage most of her bodily functions without assistance most of the time.  She could not therefore be described as unable or virtually unable to walk or as requiring prolonged, repeated or frequent attention in connection with her bodily functions either day or night or even attention for a significant portion of the day.  There was nothing in this evidence to suggest she required supervision or watching over to prevent harm to herself or others or to suggest she required guidance in unfamiliar places.  The Tribunal found she did not.  She said she could not cook due to hand problems and difficulty with standing.  The Tribunal did not accept this.  She was able to use her hands well enough to drive and could carry out much of the work of preparation of meals in a seated position.

In the light of these findings none of the conditions of entitlement to either component of Disability Living Allowance are satisfied and the appeal fails.”

5.	The claimant then sought leave to appeal to a Commissioner.  However, on 10 June 2010, the legally qualified member refused leave to appeal.

6.	The claimant then sought leave from a Commissioner.  Such leave was granted on 16 November 2010 for the following reasons:

“It is arguable that the decision was wrong in law, because –

(i)	the tribunal failed to deal with an issue raised by the applicant at the appeal, namely, her concerns about the examining medical practitioner report; and

(ii)	the tribunal failed to provide an adequate evidential assessment when deciding that the applicant was not entitled to the lowest rate of the care component of disability living allowance by satisfaction of the main meal test and, in particular, failed to deal with the issue of motivation.”

7.	An oral hearing of this appeal was arranged.  Prior to the hearing both parties lodged a case summary and, in reply to a request from the Commissioner, included submissions not only on the two grounds of appeal set out by the Commissioner but also an additional ground which had been set out in the claimant’s original application for leave to appeal.

8.	Accordingly I had not only the benefit of oral argument by the two advocates but also the case summaries lodged in the office before the hearing.

9.	Both parties agree that there are three issues raised by this appeal, namely:

	(i)	whether the tribunal erred in law by failing to deal with the claimant’s concerns about the examining medical practitioner’s report, in light of the fact that there is nothing to suggest that the claimant’s concerns were addressed at the hearing;

	(ii)	whether the tribunal provided an adequate assessment to explain why it felt the claimant was not entitled to the higher rate of the mobility component of DLA; and

	(iii)	in relation to the lowest rate of the care component, whether the tribunal provided an adequate evidential assessment of the claimant’s and her general practitioner’s evidence when applying the main meal test and, in particular whether the tribunal dealt with the issue of motivation.

10.	In the circumstances I will set out at this stage the relevant conditions for the higher rate of the mobility component and the lowest rate of the care component of DLA.

11.	A person is entitled to the lowest rate of the care component of DLA if, subject to certain conditions that are not relevant in the present case:

“(a)	he is so severely disabled physically or mentally that – 

(i)	he requires in connection with his bodily functions attention from another person for a significant portion of the day (whether during a single period or a number of periods); or

(ii)	he cannot prepare a cooked main meal for himself if he has the ingredients;
…”

	(Section 72(1) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992)

12.	White it is possible to qualify for the higher rate of the mobility component of DLA by a number of ways, the relevant route in this case is whether the claimant was “suffering from physical disablement such that he is either unable to walk or virtually unable to do so.”  (Section 73(1)(a) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992).  The statute has been expanded by the provisions of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992, the relevant portion of which (at regulation 12) states as follows:

“12.-(1) A person is to be taken to satisfy the conditions mentioned in section 73(1)(a) (unable or virtually unable to walk) only in the following circumstances –

(a)	his physical condition as a whole is such that, without having regard to circumstances peculiar to that person as to place of residence or as to place of, or nature of, employment –

(i)	he is unable to walk, 

(ii)	his ability to walk out of doors is so limited, as regards the distance over which or the speed at which or the length of time for which or the manner in which he can make progress on foot without severe discomfort, that he is virtually unable to walk, or

(iii)	the exertion required to walk would constitute a danger to his life or would be likely to lead to a serious deterioration in his health; or
…”

13.	Both advocates agreed that the tribunal erred in relation to the first and the third issues.  Accordingly I am able to deal with these two matters in fairly short form.

14.	The claimant raised concerns about the examining medical practitioner’s report in her oral evidence to the tribunal.  The record of proceedings noted as follows:

“Claimant concerned at Examining Medical Practitioner’s report.  Refers to

1.  Report of walking with stick in left hand (not – right handed).

2.  Reference to Forestside – (I don’t go to Forestside).  I don’t know where he got Forestside.  He must be making it up or mixing me up with someone else.  Shop at Tesco.  I have had Dr Wilson before.  Don’t know why he was sent to me again.  I feel he is biased. …”

15.	The tribunal has not dealt with the claimant’s concerns in its statement of reasons.  As Ms Loughrey stated, even if the tribunal did consider the claimant’s concerns but felt that they would have been more appropriately dealt with by another means (eg by way of complaint to the medical support services) to demonstrate that it had regard to an issue raised in her appeal, the tribunal should have stated that this was its view.  I accept that the tribunal has not dealt with this issue as it ought to have done.  The correct approach in these circumstances has been set out in a decision of a Tribunal of Commissioners R3/01(IB)(T) where it is stated as follows:

“16.	Mr Fletcher considered that if the reasoning was inadequate on the grounds of not having dealt with the claimant’s submission on the Medical Examiner’s report then the decision should be set aside.

17.	We are in agreement with both representatives that the reasoning is inadequate in this case.  The claimant set out a very detailed submission in the appeal letter which was referred to again at the Tribunal hearing as to claimed inaccuracies in the Examining Doctor’s report.  This was obviously a live issue in the case.  It was equally obvious that the Tribunal did not accept the Examining Doctor’s report in full.  However, it was a substantial and particularised part of the claimant’s argument that the observations of the Examining Doctor and indeed his clinical findings were inaccurate.  The Tribunal has not commented in any way on these contentions made by the claimant and, in a situation where it may well be (though the reasoning is not clear in that respect) that the Tribunal relied to some extent at least on the Examining Doctor’s observations and report, it has not adequately addressed the claimant’s contentions.

18.	We consider that in this particular decision a reasonable person reading the decision would not find the reasons sufficient to explain it.  A very substantial part of the claimant’s submission was not addressed.

19.	In general terms we would recommend to Tribunals the practice of identifying the issues which are specifically and expressly or by clear implication raised by the appeal letter.  Often there will be no specific issues raised other than that the claimant disagrees with the decision or considers it to be wrong with no reasons given.  In other cases grounds of complaint will be put forward but will be worded in vague or very general terms.  For example, that the time allowed was insufficient or that the doctor concerned lacked competence.  In all such cases the Tribunal by hearing the case will adequately deal with the appeal.  That was not so in this case.  Here very specific issues were raised.

20.	Whether or not a tribunal accepts a claimant’s representations on an Examining Doctor’s report, whether it considers that any further information is necessary or whether an Examining Doctor should be asked for comment are all matters within a Tribunal’s province and a Tribunal has considerable discretion in this matter.  However, here it appears that issues raised expressly by the claimant were ignored.  It may be that in this case the Tribunal did not place any reliance whatsoever on the Examining Doctor’s report.  It may be that it rejected the claimant’s contentions.  We have no means of knowing.  We consider that in this case, when such very specific issues in relation to the report have been raised, the Tribunal should have commented on them in some manner.  We set the decision aside for the reason that it did not deal with this issue and the decision was not therefore understandable.”

16.	Just as in R3/01(IB)(T), the decision in the present case must be set aside for the reason that the tribunal did not deal with the claimant’s concerns about the examining medical practitioner’s report.

17.	In relation to the third issue, namely, whether the tribunal has failed to provide an adequate evidential assessment when deciding that the claimant was not entitled to the lowest rate of the care component, it has been accepted by both advocates that, whilst the tribunal has given due and proper consideration to the physical reasons why the claimant could not prepare a main meal, there is no mention of any consideration of the claimant’s alleged lack of motivation in preparing such a meal.

18.	As Ms Loughrey pointed out, Mrs Commissioner Parker in Great Britain Decision  CSDLA/725/04, has dealt with these issues.  She stated the following at paragraph 10:

“10.   On the issue raised by the Commissioner’s direction, I accept the joint submission of the parties that, in appropriate cases, a lack of motivation due to disablement can found entitlement to the lowest rate of the care component of DLA under the cooked main meal test and that nothing said by the House of Lords in Secretary of State for Work and Pensions v Moyna [2003] UKHL 44, R(DLA) 7/03 (Moyna) detracts from this principle.”

	She also stated the following at paragraphs 19 and 20:

“19.  I have always accepted that it is not a simple issue of whether a claimant has the physical ability to perform all the activities in connection with planning, preparing and cooking a “… labour intensive, main reasonable daily meal for one person …” (R(DLA)2/95) but rather it is relevant whether, through disablement, the claimant lacks the motivation to do so on a sufficiently regular basis.  Mr Bartos too agreed, and I consider that he was right to do so, that if a claimant can establish that mental disablement induces a lack of motivation which in turn causes a lack of capacity to prepare and cook a reasonable variety of main meals for him or herself (and not simply an unwillingness to do so which many of us may demonstrate in our more lazy moments) then in such a case a claimant can potentially qualify under the cooked main meal test; the claimant’s abilities are assessed throughout the relevant statutory nine month period (taking a broad view in exercising judgement on whether, in a general sense, the claimant can fairly be described as a person who is unable to cook a meal).  Moyna has in no way altered this.

20.  On the contrary, in my own view, Moyna has implicitly endorsed it.  If the test is one of the severity of the disability and the impact the said disability has on functioning and on what the claimant can or cannot do, then lack of motivation (provided demonstrated as due to disablement) is, in logic, as relevant as is any physical impediment to carrying out the activities integral to the cooked main meal test.”

19.	As Mrs Hulbert has conceded, the contents of the claimant’s claim form, the general practitioner’s factual report and the oral evidence of the claimant all have raised the issue of motivation.  However, the tribunal has clearly based its decision in relation to the lowest rate of the care component on the fact that it did not accept that she would have physical difficulties with activities involving the use of her hands and her need to stand.  Accordingly the failure of the tribunal to deal with the issues of fatigue, low mood, lack of motivation and the difficulties the claimant said that she had with sitting, carrying and bending in relation to her need for assistance when preparing a main cooked meal, the tribunal has failed to give adequate reasons for its decision.  Therefore I hold that the tribunal has erred in this respect.

20.	In relation to the second issue, namely, that the tribunal has not provided an adequate evidential assessment to explain why it felt that the claimant did not meet the conditions of entitlement to the higher rate of the mobility component, there originally was no agreement between the advocates.

21.	Ms Loughrey submitted that (a) the evidence contained in the claimant’s claim form, (b) plus the corroborating evidence from the claimant’s general practitioner in the factual report as well as (c) the oral evidence at the appeal from the claimant, all pointed to the claimant having considerable difficulty walking.  The tribunal has concluded that the claimant is not virtually unable to walk but there is nothing to suggest that the claimant’s evidence, supported by the other evidence, has been rejected.  It is possible that the tribunal weighed this evidence against that of the examining medical practitioner but there is no indication that this has been done.

22.	The Department initially did not accept these submissions.  However, at the oral hearing Mrs Hulbert accepted, and in my view, very properly accepted, that the tribunal had come to its conclusion without stating why and on what basis it had arrived at that conclusion.  There is a reference in the statement of reasons to “slight inconsistencies” in the evidence.  This might well have been a factor in the tribunal’s decision-making process.  Nevertheless it is unfortunate that the tribunal did not expand on or clarify what it meant.

23.	In my view the tribunal has erred by failing to weigh the evidence relating to the claimant’s walking limitation as a whole and, as such, has erred in law.

24.	Therefore I conclude that Ms Loughrey is correct in her submissions in relation to the three issues.  Accordingly I allow the claimant’s appeal, set aside the tribunal’s decision and refer the case to be re-decided by a differently constituted tribunal.  However, the fact that this appeal to a Commissioner has been successful should not be taken as an indication of the ultimate success of the claimant’s appeal to a tribunal.  I direct the new tribunal to take into account what I have set out in this decision, in so far as it remains relevant in light of the evidence adduced before the new tribunal.

(signed):  J A H Martin QC

Chief Commissioner

11 April 2011