MAA-v-Department for Communities (DLA) [2018] NICom 35

Decision No:  C5/18-19(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 7 November 2016

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 Belfast.

2.	For the reasons I give below, I grant leave to appeal.  I allow the 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 should be determined by a newly constituted tribunal.

REASONS

	Background

3.	The appellant claimed disability living allowance (DLA) from the Department for Social Development (the Department) from 29 December 2014 on the basis of needs arising from autistic spectrum disorder (ASD), hearing problems, depression, dyslexia, dyspraxia, sleep apnoea, hiatus hernia, COPD, heart disease, Barrett’s oesophagus and prostate problems.  The Department obtained a report from the appellant’s general practitioner (GP) on 23 March 2015.  On 25 March 2015 the Department decided on the basis of all the evidence that the appellant did not satisfy the conditions of entitlement to DLA from and including 29 December 2014.  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 adjourned for the preparation of a report by an examining medical practitioner (EMP).  After a hearing on 7 November 2016 the tribunal disallowed the appeal.  The appellant then requested a statement of reasons for the tribunal’s decision and this was issued on 13 February 2017.  The appellant 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 22 March 2017.  On 21 April 2017 the appellant applied to a Social Security Commissioner for leave to appeal.

	(The Department was renamed the Department for Communities from 8 May 2016).

	Grounds

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

	(i)	insufficient weight was given to the reports of Ms Douglas, the EMP and the GP;

	(ii)	its reasons were inadequate.

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

	The tribunal’s decision

7.	The LQM has prepared a statement of reasons for the tribunal’s decision.  From this I can see that the tribunal had documentary material before it consisting of the Department’s submission, containing the claim form and a factual report from the appellant’s GP.  It further had sight of the appellant’s medical records.  It had an EMP report – prepared on the direction of the tribunal - and a letter from the appellant.  The appellant did not attend the hearing, saying in his letter that he would find this too stressful, but his wife attended and gave oral evidence about his mobility and care needs, and he was represented by Mr Doherty.

8.	The tribunal accepted that the appellant had both physical and mental disabilities.  However, on the basis of the EMP’s assessment, it found that the appellant was unlikely to have mobility or care needs arising from his physical condition, which included mechanical low back pain.  The tribunal found that the EMP’s assessment was supported by the evidence in the medical records and from the report of the appellant’s GP.

9.	The tribunal accepted that the appellant experienced mild anxiety and depression, which was managed by his GP.  It found that the EMP had not been provided with both of two divergent reports on the diagnosis of autistic spectrum disorder, and gave less weight to the EMP’s evidence on mental disablement as a result.  It approached the EMP’s report with caution and disagreed with the EMP’s assessment, finding that the appellant had the organisational skills to prepare a cooked meal for himself, to follow normal hygiene and medication routines and to plan and execute a journey on foot along an unfamiliar route.  It found no evidence to substantiate the appellant’s claim that he needed encouragement to eat and drink, to move about, to avoid self-neglect, self-harm, anti-social or aggressive behaviour or that he was unaware of common dangers.  The tribunal disallowed both mobility and care in consequence.

	Relevant legislation

10.	The legislative basis of the care component is found at section 72 of the Social Security Contributions and Benefits Act (NI) 1992.  This provides:

	72.—(1) Subject to the provisions of this Act, a person shall be entitled to the care component of a disability living allowance for any period throughout which—

		(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;

		(b) he is so severely disabled physically or mentally that, by day, he requires from another person—

			(i) frequent attention throughout the day in connection with his bodily functions; or

			(ii) continual supervision throughout the day in order to avoid substantial danger to himself or others; or

		(c) he is so severely disabled physically or mentally that, at night,—

			(i) he requires from another person prolonged or repeated attention in connection with his bodily functions; or

			(ii) in order to avoid substantial danger to himself or others he requires another person to be awake for a prolonged period or at frequent intervals for the purpose of watching over him.

	(2) Subject to the following provisions of this section, a person shall not be entitled to the care component of a disability living allowance unless—

		(a) throughout—

			(i) period of 3 months immediately preceding the date on which the award of that component would begin; or

			(ii) the such other period of 3 months as may be prescribed, he has satisfied or is likely to satisfy one or other of the conditions mentioned in subsection (1)(a) to (c) above; and

		(b) he is likely to continue to satisfy one or other of those conditions throughout—

			(i) the period of 6 months beginning with that date; or

			(ii) (if his death is expected within the period of 6 months beginning with that date) the period so beginning and ending with his death.

11.	The legislative basis of the mobility component is section 73 of the same Act.  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—

		(a) he is suffering from physical disablement such that he is either unable to walk or virtually unable to do so;

		(ab) he falls within subsection (2) below;

		(b) he does not fall within that subsection but does fall within subsection (2) below;

		(c) he falls within subsection (3) below; or

		(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.

…”

	Hearing

12.	I held an oral hearing of the application for leave to appeal and granted leave in the course of that hearing.  The appellant was represented by Mr Doherty of Autism Network NI, and the respondent was represented by Ms Coulter of DMS.  I am grateful to the representatives for their assistance.

13.	The appellant firstly submitted that the tribunal has not placed sufficient weight on:

	a)	the report of Ms Douglas, consultant psychologist;

	b)	the report of the EMP;

	c)	the report of Dr H.., GP.

14.	The appellant had been referred by his GP to the Autism Spectrum Disorder Diagnostic Service for assessment of possible ASD.  Having administered the Adult Autism Assessment (AAA), the Autism Diagnostic Observation Schedule (ADOS) and the Hospital Anxiety and Depression Scale (HADS), Ms Adamson, principal clinical psychologist, found that while some difficulties were present, the results were not indicative of ASD.

15.	The appellant obtained a further psychological report from Ms Douglas, consultant psychologist, following his self-referral for a second diagnostic assessment in relation to Asperger syndrome.  It was confirmed that using the Diagnostic Interview for Social and Communication Disorders (DISCO), the appellant’s behaviour profile met the diagnostic criteria for an autistic spectrum disorder.  The consultant psychologist stated the opinion that the appellant required support by way of giving written instructions for tasks or activities and would benefit from help to develop his social skills.  Areas of focus might include anxiety control and stress management, time management and organisational skills, and developing verbal and non-verbal conversational skills.

16.	An appeal tribunal directed that the appellant should be examined by an EMP.  The EMP was provided with a copy of the Douglas report only.  The EMP found that the appellant had mental disablement likely to cause him to neglect personal hygiene or nutrition, and to cause a requirement of supervision with medication.  The EMP found that he would have problems engaging with unfamiliar persons and places without help, giving rise to mobility needs.  However, the tribunal had taken the view that the EMP’s evidence should be given less weight, as there was divergence on the diagnosis of ASD between the two reports and the EMP only received one of them.

17.	Mr Doherty challenged the basis on which the tribunal had viewed the evidence of the EMP.  He submitted that the reports were not divergent.  He submitted that they simply employed different diagnostic tools.  Whereas the Adamson report had employed the ADOS test, the Douglas report had used the DISCO test.  [In fact the Adamson report also employed AAA and the HADS.]  Mr Doherty referred to guidance from the National Institute for Health and Care Excellence (NICE), which states:

	1.2.8 To aid more complex diagnosis and assessment for adults, consider using a formal assessment tool, such as:

•	the following tools for people who do not have a learning disability:

•	the Adult Asperger Assessment (AAA; includes the Autism-Spectrum Quotient [AQ] and the Empathy Quotient [EQ])[6]

•	the Autism Diagnostic Interview – Revised (ADI-R)[7]

•	the Autism Diagnostic Observation Schedule – Generic (ADOS-G)[8]

•	the Asperger Syndrome (and high-functioning autism) Diagnostic Interview (ASDI)[9]

•	the Ritvo Autism Asperger Diagnostic Scale – Revised (RAADS-R)[10]

•	the following tools in particular for people with a learning disability:

•	the ADOS-G

•	the ADI-R.

	1.2.9 To organise and structure the process of a more complex assessment, consider using a formal assessment tool, such as the Diagnostic Interview for Social and Communication Disorders (DISCO), the ADOS-G or the ADI-R.

18.	The point advanced by Mr Doherty was that the appellant had been correctly diagnosed using an appropriate diagnostic tool which was fully approved under NICE guidance.  The fact that another specialist had been unable to confirm a diagnosis using a different tool was not contradictory of that fact.

19.	The tribunal appeared to give little weight to the Douglas report which indicated a diagnosis of ASD, stating that the Adamson report, which was not seen by the EMP, gave “a more accurate and analytical picture” of the appellant’s condition.  Mr Doherty challenged this view on the basis that the DISCO assessment was appropriately used, although the full details of the questions and answers given at assessment were not set out in the report.

20.	In questioning the tribunal’s approach, Mr Doherty pointed out that the EMP had seen the appellant, whereas the tribunal had not, and had stated that the “customer’s presentation [was] in keeping with ASD”.  Therefore the EMP had not relied on the Douglas report but also on direct observation.

21.	Ms Coulter submitted that it was for the tribunal to weigh the evidence.  It would only err in law if it had reached a decision that no reasonable tribunal could reach.  The tribunal had considered that there was a conflict in the evidence and had indicated how that conflict was resolved.

	Assessment

22.	This was a case where the tribunal was not assisted by the appellant attending and giving evidence.  The task of a tribunal is made much more difficult in those circumstances.  It has to rely on hearsay evidence, documents and the reports of other people who have seen the appellant.  It had adjourned to give the appellant an opportunity to attend, but he did not take that opportunity.

23.	Further, in this case, the tribunal directed an examination and report by an EMP.  When arranging that examination, the Department provided the EMP with the Douglas report, discussed above, but not the Adamson report.  Why the Department should have adopted that course, when the tribunal did not direct it, is unexplained.  On learning this, the tribunal directed that the EMP who examined the appellant should be supplied with the Adamson report, and should be invited to comment on whether the conclusions in his or her report would remain unaltered.  A Departmental submission on the file indicates:

“… I have also been advised by our Medical Support Provider it is not possible to accede to the Tribunal’s directions on having the EMP’s comments on the further report and any possible effect it could have on his/her conclusion”.

24.	No explanation was before the tribunal as to why the Department declined to comply with its direction.  This might have been that the EMP had retired or was deceased.  It might have been that the Department’s “Medical Support Provider” simply did not respect the tribunal’s direction and considered it too bothersome to comply with it.  Whereas the failure on an appellant to comply with a direction may lead to an appeal being struck out, such a sanction does not bite against the Department.  However, I consider that such wilful disregard of a tribunal’s direction demands proper explanation.  It is not a matter for me to pursue.  However, the President of Appeals Tribunals may wish to look into the matter further.

25.	Returning to the present appeal, the tribunal was faced with a situation where the EMP had indicated that the appellant was likely to have care and mobility needs.  However, it felt that the EMP’s evidence was compromised by lack of sight of the Adamson report.  The approach that the tribunal adopted was to reduce the weight it gave to the EMP report.

26.	I acknowledge the difficulty faced by the tribunal.  However, I consider that in the particular circumstances of the case, it was not open to it to qualify the EMP report’s findings as it did.  The EMP and the specialists had seen the appellant, whereas the tribunal had not.  The EMP had indicated that the appellant’s presentation was in keeping with ASD and that he had likely care and mobility needs.  Whereas one diagnostic tool had not confirmed ASD, a different one had.  This was not a case of contradictory results, where one report dismissed the possibility that ASD was an appropriate diagnosis.  That report had simply been unable to confirm a diagnosis.

27.	In any event, the diagnosis issue was not crucial to the tests before the tribunal.  The real issue was the needs of the appellant.  The EMP had indicated that he had care and mobility needs.  The Adamson report, which the EMP did not see, did not comment on the likelihood of care or mobility needs at all.  As such, I consider that the tribunal was not justified in disregarding the EMP’s evidence on the basis that it was prepared without sight of the Adamson report.  In the very unusual circumstances of this case, I accept the submissions of Mr Doherty that the tribunal has erred in law.

28.	It follows that I must allow the appeal.

29.	I consider that I should set aside the decision of the appeal tribunal and refer the appeal to a newly constituted tribunal for determination.

(signed):  O Stockman

Commissioner

20 July 2018