NMcA-v-Department for Social Development (DLA) NICom 20
Decision No:  C38/14-15(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 13 January 2014

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is a claimant’s application for leave to appeal from the decision of an appeal tribunal sitting at Craigavon.

2.	For the reasons I give below, I grant leave to appeal and I set aside the decision of the appeal tribunal under Article 15(8)(b) of the Social Security (NI) Order 1998.  I direct that the appeal shall be determined by a newly constituted tribunal.

REASONS

	Background

3.	The applicant claimed disability living allowance (DLA) from the Department for Social Development (the Department) from 27 August 2008 and was awarded the high rate of the mobility component for a fixed period of two years.  This award was renewed on a further claim for a fixed term of three years to 26 August 2013.  The applicant made a renewal claim on the basis of needs arising from scoliosis of the spine and back pain.  The Department obtained a report from the applicant’s general practitioner (GP) on 7 August 2013.  On 31 August 2013 the Department decided on the basis of all the evidence that the applicant did not satisfy the conditions of entitlement to DLA from and including 27 August 2013.  The applicant appealed but did not ask for an oral hearing of her appeal.

4.	The appeal was considered on the papers by a tribunal consisting of a legally qualified member (LQM), a medically qualified member and a disability qualified member.  The tribunal disallowed the appeal.  The applicant then requested a statement of reasons for the tribunal’s decision and this was issued on 3 March 2014.  The applicant applied to the LQM for leave to appeal from the decision of the appeal tribunal but leave to appeal was refused by a determination issued on 30 April 2014.  On 23 May 2014 the applicant applied to a Social Security Commissioner for leave to appeal.

	Grounds

5.	The applicant submits that the tribunal has erred in law on the basis that:

(i)	the evidence provided by her established a strong case for renewing her DLA;

(ii)	she had been receiving DLA for five years and her condition had deteriorated;

(iii)	she has severe scoliosis of the spine.

6.	The Department was invited to make observations on the applicant’s grounds.  Mr Donnelly of Decision Making Services (DMS) responded on behalf of the Department.  He submitted that the tribunal had not erred in law as alleged and indicated that the Department did not support the application.

	Assessment

7.	The applicant elected not to attend the hearing of her appeal.  Therefore, the tribunal deciding this case did not have the benefit of the applicant’s oral evidence regarding her mobility difficulties and care needs.  The tribunal considered the documentary evidence consisting of the applicant’s claim form, a general practitioner (GP) factual report, an appeal submission by the applicant, a statement by the applicant’s partner, an Internet-sourced document on “chronic pain”, an appointment letter with a Physiotherapy Outpatients Clinic and information about Butrans patches.  In addition, the tribunal had previous claim papers and the applicant’s medical records.

8.	The applicant’s case to the tribunal was essentially that she had mobility problems, and required attention in connection with rising from bed, washing, dressing, using stairs.  She stated that she had difficulty preparing a cooked meal due to physical difficulties.  The applicant’s GP stated in the factual report that she would have reduced mobility and would require assistance getting up, washing, dressing and with meal preparation.

9.	The tribunal when considering the mobility component refer to the consultant’s reports in the applicant’s medical records.  It takes the view that if the applicant’s mobility “was so significantly restricted as she states it is reasonable to assume that some comment would have been made”.  It concludes on the basis of the medical records that the appellant’s condition is probably best described as moderate.  It further states that “this conclusion is supported by the fact that the appellant is able to drive a car and that there appears to have been no particular provision made for her or noted by medical staff in connection with the birth of her children”.

10.	When considering the care component, the tribunal notes that the applicant can drive and concludes that the applicant “might, on a balance of probabilities be able to prepare and cook a main meal for herself”.  The tribunal notes that both the applicant and her GP state that she needs physical assistance getting in and out of bed, washing, dressing and undressing.  However, the tribunal, while accepting that it is reasonable and probable that the applicant would need some assistance on a daily basis, finds that “in light of the appellant’s ability to drive and to care for young children such assistance cannot on a balance of probabilities be considered as reasonably requiring another person to provide ... attention… “.

11.	As indicated above, the applicant did not attend the tribunal.  Perhaps she felt that a conservatively stated list of her difficulties, supported by the evidence of her GP, would be enough to succeed.  Nevertheless, it is a difficult task for a tribunal to assess the merits of an appeal on the basis of documents alone, and it is not unreasonable for a tribunal to place less weight on a written statement by a claimant than on the same statement expressed orally at a hearing, where the tribunal has the benefit of seeing the appellant and assessing the appellant’s credibility.

12.	In order to assess her credibility the tribunal has addressed the applicant’s medical records.  However, in doing so it appears to me that it has entered into the realm of speculation to some extent.  In particular, the absence of a comment by a consultant on the degree of restriction of the applicant’s mobility is relied upon.

13.	Commissioners have previously addressed the situation where a GP responds “unknown” when asked about matters such as a claimant’s mobility.  Commissioners in Northern Ireland have followed the decision of Mrs Commissioner Jupp in CDLA/4580/2003, expressing caution where a doctor’s comment such as “unknown” is taken as a statement that the claimant does not have a particular disability arising from a medical condition.  For example, Mrs Commissioner Brown said in C26/05-06(DLA):

9.	“As regards the first ground of appeal, that based on CDLA/4580/2003, I consider this ground to be misconceived.  Commissioner Jupp’s decision related to a tribunal having misinterpreted what a doctor had stated.  As Commissioner Jupp stated in paragraph 11:

“I accept that it is clear that the tribunal interpreted the general practitioner’s statement that he did not know what distance the claimant could walk before the onset of severe discomfort as meaning that the claimant did not have any difficulty with walking; what I do not accept is that the tribunal was right to make this interpretation. …”

10.	To begin with, Commissioner Jupp was referring not to GP records but to a statement by the GP.  She decided, quite correctly in my view, that the tribunal in that case was not entitled to interpret the GP’s statement that he did not know what distance a claimant could walk as being a statement by the GP that a claimant did not have any difficulty with walking.  That is very different indeed from the situation where a claimant is stating that he suffers from very severe problems and a GP does not have any indication thereof.  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.

11.	Having said that, however, I do think that in such cases it is good practice and in certain cases it may be erroneous not to mention such a crucial matter to a claimant.  The claimant may have an explanation to offer in relation to such absence from the records.  It is a matter for the tribunal whether it accepts any such explanation.  It may accept or reject it.  It is not necessary for me to decide whether there was such an error in this case as I am setting the decision aside for different reasons. “

14.	In assessing the aspect of care, the tribunal has similarly placed weight on its view that the applicant was likely to be involved in the care of young children.  However, there was no evidence as to who was the primary carer of her children.

15.	It appears to me that the view of Mrs Commissioner Brown was correct, namely, that if the tribunal intended to rely on the lack of mention of certain problems in the GP records as a factor in assessing the reliability of the applicant’s evidence, it may be erroneous not to mention such a crucial matter to the claimant.  Therefore, I grant leave to appeal.

16.	The claimant in the present case had decided not to request an oral hearing.  Nevertheless, she had advanced prima facie evidence in the form of her self-assessment claim, corroborated by her GP’s factual report.  It was right for the tribunal not to accept that evidence unquestioningly.  However, where the tribunal was minded to decide the case against her on the basis of factors on which there was no evidence, I consider that the requirements of natural justice placed an onus on the tribunal to put those aspects to the applicant for comment.  This could have been achieved simply by adjourning to enable the appellant to attend an oral hearing.

17.	Without permitting the applicant an opportunity to respond, and by basing its decision on matters on which there was no evidence, I consider that the tribunal has erred in law.

18.	I set aside the decision of the appeal tribunal.  I direct that the appeal shall be determined by a newly constituted tribunal.  I direct that the applicant should be sent a new REG2(i)d form to ask her if she now wants an oral hearing of the appeal.

(signed)  O Stockman

Commissioner

4 June 2015