MK-v-Department for Social Development (DLA) [2016] NICom 42

Decision No: C6/15-16(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 20 January 2015

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is a claimant’s appeal from the decision of an appeal tribunal sitting at Belfast.

2.	For the reasons I give below, I allow the appeal and 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.	On 14 March 2014, the appellant made a renewal claim for disability living allowance (DLA) from the Department for Social Development (the Department) from 25 June 2014 on the basis of needs arising from HIV, eczema, asthma, back and hip pain and anxiety/depression.  The Department obtained a report from the appellant’s general practitioner (GP), who attached a consultant’s letter.  On 9 April 2014 the Department decided on the basis of all the evidence that the appellant did not satisfy the conditions of entitlement to DLA.  The appellant appealed.

4.	The appeal was considered by a tribunal consisting of a legally qualified member (LQM), a medically qualified member and a disability qualified member.  The tribunal disallowed the appeal in relation to mobility component by a majority.  The panel awarded low rate care component for a period of two years to 24 June 2016.  The appellant then requested a statement of reasons for the tribunal’s decision and this was issued on 7 May 2015.  The appellant applied to the LQM for leave to appeal from the decision of the appeal tribunal and leave to appeal was granted by a determination issued on 23 June 2015.  The ground on which leave to appeal was granted was whether the minority’s disallowance of low rate mobility component was safe in law.  On 9 July 2015 the appeal was lodged in the Office of the Social Security Commissioners. 

Grounds

5.	The grounds of appeal submit that the tribunal has erred in law on the basis that the majority had not adequately explained why it had not accepted that the conditions of entitlement to low rate mobility component were met. 

6.	The Department was directed to make observations on the appellant’s grounds. Mr Culbert 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 appeal. 

The tribunal’s decision

7.	The panel had documentary evidence before it including the Department’s submission, the appellant’s computerised GP records, a GP factual report, a letter from a consultant in genito-urinary medicine, a questionnaire completed by a social worker and a letter from Dr Donnelly, the appellant’s GP.  The appellant attended and gave oral evidence. The tribunal found that the appellant lacked motivation to get out of bed, to wash and to eat properly, awarding low rate care component for a two-year period. 

8.	The panel was divided on mobility.  High rate was not claimed.  On low rate, the majority (LQM dissenting) found that the appellant was very nervous, but that he was overprotected by his family and did not medically need to be accompanied.  The LQM recorded that she found that the appellant found it difficult to cope and that more progress was needed before he could cope independently on an unfamiliar route most of the time. 

Relevant legislation

9.	The primary legislation establishing the statutory test for the low rate mobility component is to be found at section 73 of the Social Security (Contributions and Benefits) Act (Northern Ireland) 1992.  So far as is relevant this provides:

73.—(1) Subject to the provisions of this Act, a person shall be entitled to the mobility component of a disability living allowance for any period in which he is over the relevant age and throughout which—

… (d) he is able to walk but is so severely disabled physically or mentally that, disregarding any ability he may have to use routes which are familiar to him on his own, he cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time.

10.	Further provision is made at regulation 12 of the Disability Living Allowance Regulations (Northern Ireland) 1992.  So far as is relevant, this provides:

12(7) For the purposes of section 73(1)(d) a person who is able to walk is to be taken not to satisfy the condition of being so severely disabled physically or mentally that he cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time if he does not take advantage of the faculty in such circumstances because of fear or anxiety.

(8) Paragraph (7) shall not apply where the fear or anxiety is—

(a) a symptom of a mental disability; and

(b) so severe as to prevent the person from taking advantage of the faculty in such circumstances.

Hearing

11.	I held an oral hearing of the appeal.  I heard submissions from Ms Loughrey of Law Centre (NI) on behalf of the appellant and by Mr Culbert of DMS on behalf of the appellant. 

12.	Ms Loughrey sought to expand on the grounds of application for leave to appeal in correspondence dated September 2015. T he further submission was addressed to the tribunal’s treatment of the care component.  Ms Loughrey candidly indicated that she had received the appellant’s papers late in the day, and that she quickly had re-worked the application for leave to appeal to the LQM in the application made before going on leave.  It was only later that she had considered the papers more fully and identified the point on the care component.  She asked me to admit this ground, as Mr Culbert had been given time to respond to the issue and the Department had not been disadvantaged in any way. 

13.	In her submissions, Ms Loughrey referred to the evidence of the appellant in the claim form, a report from a social worker and the evidence of the GP.  She observed that the minority of the tribunal accepted that the evidence led to such an award, albeit that the majority took a different view. The majority’s reasoning in essence was that the appellant preferred to be accompanied, rather than required to be accompanied for a medical reason. She submitted that there was no legislative requirement for a medical need. She criticised the language of the majority which took the view that the appellant was “mollycoddled” by his family, without hearing adequate evidence. 

14.	I asked whether, in addition to the primary diagnosis of HIV, there was any formal diagnosis of a mental disablement.  Ms Loughrey directed me to evidence of referral to the hospital psychiatric team.  It appeared that the list of medication from the GP was restricted, as it referred solely to asthma medication, although the oral evidence of the appellant referred to prescription of Mirtazapine – an anti-depressant. She was uncertain as to what evidence of the appellant’s psychiatric condition was before the tribunal in the appellant’s GP records.  She submitted that the minority had taken a view which was contrary to the evidence. 

15.	Ms Loughrey submitted that the phrase “this is more a personal preference as opposed to a medical necessity” showed that the minority was applying the statutory test wrongly.  There should be no requirement that guidance or supervision is medically required.  

16.	Ms Loughrey referred to the issues of motivation in terms of self-care, and noted the GP’s reference to the need for “constant” prompting. She conceded that the decision was not irrational and that the evidence did not compel a conclusion contrary to the majority’s findings.  However, she submitted that the evidence supported an award of middle rate care. 

17.	Mr Culbert responded by setting out the statutory test, and the reasons advanced by the majority for its decision.  Mr Culbert emphasised that the test was concerned with a claimant’s ability to use routes out of doors.  He submitted that the tribunal had addressed the ability to use routes and that the minority’s reasons were adequate to explain the decision.  He submitted that the test should be considered in an everyday context.  While accepting that there might be anxiety about attending an appointment – or, for example, attending a tribunal – this was not an everyday scenario. 

18.	Mr Culbert pointed out that the lack of a referral to a community psychiatric nurse was a factor in the majority’s decision, but accepted that there was little evidence before the tribunal of the input of hospital psychiatry. He noted that there had been a previous adjournment for hospital records, but that the appellant had indicated that he wanted to proceed without the full records. 

19.	Mr Culbert felt that the tribunal’s reference to “medical necessity” was a poor choice of words, but submitted that the preceding paragraph had demonstrated that the majority’s mind was directed to the correct test.  He felt that this statement was addressed to the question of need as opposed to preference.  Mr Culbert further submitted, whereas the primary diagnosis of HIV was a physical disablement, that the evidence did not demonstrate that the appellant’s anxiety was a symptom of a mental disablement.  

20.	On care, Mr Culbert disagreed with Ms Loughrey’s submission.  He accepted that, had the tribunal awarded the middle rate of the care component, this could have been supported; equally, he submitted that the award of the low rate could be supported. 

Assessment

21.	Ms Loughrey’s principal submission was that the reasons for the majority decision of the tribunal are not adequate.  She refers to the oral evidence of the appellant and to the documentary evidence of the social worker and GP.  She submits that the reasons are not clear in the light of the evidence. 

22.	However, this is a decision with a majority and a minority decision.  The majority of the panel felt that the appellant preferred to be accompanied when out of doors, but did not need to be accompanied.  The minority member took the view that the appellant was not exercising a lifestyle choice to be dependent on others, but that he was mentally fragile and that he required more progress to be made before he could cope independently on an unfamiliar route. 

23.	Ms Loughrey challenges the adequacy of the tribunal’s reasons. However, I consider that the reasons for the majority and the minority views of the case are perfectly clear.  Anyone reading the decision would have no difficulty understanding it, whether or not agreeing with the majority or the minority.  As the reasons of the tribunal are entirely adequate, there is no merit in Ms Loughrey’s core submission. 

24.	However, as they were developed at hearing, Ms Loughrey’s submissions can be more properly and accurately described as a rationality challenge, or as a challenge to the minority’s interpretation of the statutory test.  I will return to this below. 

25.	No objection was taken to the late introduction of the grounds of application for leave to appeal relating to the care component.  These are some three months out of time.  The general legal principle is that the requirements of procedural rules should be observed.  However, I find that no prejudice would be caused to the Department by reason of lateness and I admit the late grounds. 

26.	Nevertheless, it appears to me that the submissions on care do not establish a case of irrationality.  I accept the submissions of Mr Culbert that, on the evidence, it would have been equally open to the tribunal to reach a conclusion that the middle rate, rather than the low rate, conditions were satisfied.  Both were reasonable conclusions.  Whereas the tribunal found that low rate care was the appropriate level of award, the evidence did not compel a conclusion that the middle rate should have been awarded.  Although I admit the late application, I decline to extend the grounds on which leave to appeal has been granted to include this ground. 

27.	Turning back to the low rate mobility component, the same principles would apply.  The tribunal had evidence before it from a variety of sources, including a social worker, to the effect that the appellant experienced high anxiety if presented with any situation outside his normal routine and environment, and that he had requested support in attending appointments. His GP noted that he had reported difficulty with mobility due to lack of motivation and paranoia.  On the evidence, the majority of the tribunal found that the appellant did not require guidance or supervision, whereas the minority accepted that he did.  Again, neither conclusion was unreasonable. The evidence did not compel a conclusion one way or the other. 

28.	The issue which has given me some difficulty, however, is the question of whether the minority has applied the statutory test correctly.  It is clear that the tension in the case was between the majority view that the appellant preferred, rather than required, accompaniment and the minority view that he was not coping emotionally and reasonably required accompaniment.  There did not seem to be any doubt that the appellant was actually being accompanied places, either by a social worker or by a family member.  Albeit mindful of a need for caution, since the minority drafted the reasons, I note that the reasons record that the minority “feel that the appellant is being overprotected by his family who are almost mollycoddling him and not encouraging him to be more positive and more independent …”. 

29.	It appears to me that a judgemental element has crept in to the decision.  The majority appear to take the view that, while the appellant is accompanied out of doors, he should not require to be accompanied.  The implication of the majority view is that family members have created a culture of dependency on the part of the appellant.  Ms Loughrey has pointed out that, even if family members are overprotective, the appellant’s social worker might be expected to have a more critical view as to whether his client needs to be accompanied, yet continues to support him.  There is some force in that submission. 

30.	The minority has commented that the test is about how the appellant’s body and mind are coping emotionally.  I think that this is a correct statement of the law.  It may well be that family members are overprotective.  However, if some additional emotional dependency has been created as a result of overprotectiveness, it becomes part of the overall picture to be assessed when deciding the question of entitlement.  By finding that the appellant should not need to be accompanied out of doors, it appears to me that the majority are looking at a prospective future where “mollycoddling” has stopped.  However, even if the reality is that the appellant’s dependency is linked to the support of his family members, he must be judged in terms of whether he satisfies the statutory test as he is, and not as he should be. Whether he requires guidance or supervision must be judged in terms of what is reasonably required, rather than what is medically required.  Whether guidance or supervision is reasonably required must involve a judgement based on the extent of an appellant’s disablement and dependency at the relevant period for the claim and decision. 

31.	It seems to me that the decision of the tribunal is based on little psychological evidence.  The appellant has been seeing a hospital psychiatrist, but there is no medical opinion as to his symptoms in the papers before me.  The GP refers to symptoms that the appellant has reported to him, but there is no independent opinion expressed by the GP.  The appellant told the tribunal that he had been prescribed Mirtazapine, which I understand to be an anti-depressant, but there is no specific reference in the medical evidence to Mirtazapine and none to any treatment for symptoms of anxiety.  A previous tribunal had adjourned for the purpose of obtaining the hospital psychiatric notes, but the present tribunal proceeded, with the appellant’s consent, without them. 

32.	I consider that the evidence provided by the appellant of a requirement for guidance or supervision to walk on unfamiliar routes is limited. Nevertheless, I am persuaded that the majority of the tribunal has erred in law on the basis that they have applied the statutory test to the appellant in terms of how he should be, rather than how he is. 

33.	I set aside the decision of the appeal tribunal and I direct that the appeal shall be considered by a newly constituted tribunal. 

34.	In considering whether the appellant satisfies the relevant test for the low rate mobility component, I direct the new tribunal to have specific regard to the question of whether the appellant suffers from fear or anxiety which is a symptom of a mental disability.  I further direct the tribunal to have regard to the medical opinion of the hospital psychiatrists and any treatment being given to the appellant.  The tribunal should have regard to whether the appellant reasonably required guidance or supervision within the meaning of the statutory test at the date of his renewal claim, having regard to any evidence of circumstances obtaining on or before 9 April 2014. 

(signed)  O Stockman
Commissioner

13 June 2016