THE SOCIAL SECURITY COMMISSIONERS

Commissioner’s Case No: CDLA/0141/2001

SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF AN APPEAL TRIBUNAL
 ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

COMMISSIONER:	Mr H Levenson

1. This appeal by the claimant does not succeed. I confirm the decision made by the Swansea tribunal on 14th February 2000 to the effect that the claimant is not entitled to either component of disability living allowance (DLA) as from 15th May 1996

2. This case has a long history and I am bound to say that some of the arguments put forward by the solicitors for the claimant have complicated and delayed matters unnecessarily and show that some of the stages through which this case has passed have not been properly understood. I hope to explain as clearly as possible what has happened and why.
 
3. The claimant was born on 7th May 1952. He complained of pain in his knee, back, neck and shoulders, brought on by and exacerbated by a series of accidents. Apparently he hurt his back at work in 1984, was driving a lorry which was struck from behind in 1988 and hurt himself in 1991 while he was loading his lorry. Details of these incidents and of the medical effects are given in a full report from a consultant rheumatologist on 16th July 1993 (pages 42 to 50 of the bundle of papers before me). On 26th August 1994 the claimant made a claim for DLA. (He had requested a claim form on 12th July 1994 and that would have been taken as the date of claim if he had returned the form by 21st August 1994, but he did not). Entitlement to DLA does, of course, depend on the effect of any particular condition rather than on diagnosis. Among other matters, the claimant stated that he could walk for 50 or 60 yards without severe discomfort but would then have to rest for 5 minutes after 25 yards. On 24th September 1994 the claimant’s GP reported a range of activities which the claimant found difficult, adding that he also suffered from vertigo, and dizziness which was “incapacitating at times”. The GP was of the opinion that the claimant could not cope with hot pans or peel and chop vegetables, and that he could walk about 100 yards on level ground in 10 minutes.

4. The law relating to entitlement to DLA is mainly to be found in sections 71 to 73 of the Social Security Contributions and Benefits Act 1992 and regulation 12(1) of the Social Security (Disability Living Allowance Regulations) 1991. These provisions have been reproduced at several places in the bundle of papers and I do not reproduce those provisions here as I assume that the solicitors are familiar with them. On 31st October 1994 the adjudication officer awarded the higher rate mobility component and the lowest rate care component of DLA for life from 26 August 1994. I am bound to say that, even without considering subsequent events, the award of higher rate mobility component and (in view of the claimant’s age) the lifetime award seem generous on the evidence that was before the adjudication officer at that time. The consultant rheumatologist had not recorded any complaint, finding or opinion in relation to difficulty with walking.

5. On 15th June 1995 the claimant requested a review of this decision because rheumatoid arthritis had been diagnosed and his condition had deteriorated. On 11th August 1995 the adjudication officer reviewed but confirmed the decision, and this decision was itself confirmed on further review by a different adjudication officer on 23rd October 1995. On 14th December 1995 the claimant appealed to the Disability Appeal Tribunal against the decision of the adjudication officer. The tribunal considered the matter on 15th May 1996. It is important to appreciate that what was before that tribunal was the question of whether the claimant was entitled to a higher rate of care component. Neither the adjudication officer not the Secretary of State had put in issue continued entitlement to the award made by the adjudication officer on 31st October 1994.

6. The grounds on which the decision making the award could be reviewed at that time were set out in section 30(2) of the Social Security Administration Act 1992. These were that the decision had been given in ignorance of, or was based on a mistake as to, some material fact; that there had been (or was anticipated to be) a change of circumstances (including deterioration or improvement) in the condition); or that the decision had been made in error of law. The tribunal found that no grounds existed on which to review the decision. The tribunal recorded that, during the hearing, it did not feel that it had sufficient grounds on which to question the award of mobility component. In relation to care component it found that there was no need for assistance during the night. During the day there was need for some assistance with dressing and undressing, bathing and using the stairs. However this did not amount to a requirement for attention frequently throughout the day. The tribunal also explained in detail why it did not feel that there was any need for supervision of the claimant. Thus there was no entitlement to middle or highest rate care component on this basis. It was doubtful whether it would even amount to a requirement for attention for a significant portion of the day (one basis of entitlement to lowest rate care component). However, the tribunal acknowledged that this was not relevant because lowest rate care component was already in payment (which it implicitly assumed was on the other basis of entitlement - the cooking test).

7. It is important to note that what happened next was not part of the decision, but that it was convenient, proper and fair to all parties (including the claimant) to record it on the Record of Proceedings. After the hearing (at the end of which the tribunal had told the claimant of its decision) the tribunal and the presenting officer (representing the adjudication officer) observed the claimant walking from the tribunal venue. The tribunal made detailed observations of the claimant walking a distance of approximately 70 metres, opening the tail-gate of his car, getting into the car, and turning in his seat to take a baby being passed to him by another person. These observations are recorded in box 4 of the record (reproduced e.g. on page 109 of the bundle of papers). As a result of its observations the tribunal added to its decision the words, “We invite the adjudication officer to consider a review of the existing award in order to determine whether the conditions of entitlement continue to be satisfied”.

8. On 20th June 1996 the Secretary of State did request a review of “this case”. It would have been clearer had the request been to review the decision of 31st October 1994 and set out the reason. However, it seems to me that a failure to do so did not prevent this from being an application for review under section 30 of the Social Security Administration Act 1992.

9. On 13th September 1996 the chairman of the tribunal refused the claimant leave to appeal to the Commissioner against the decision of the tribunal. I have no record that such application was renewed before a Commissioner. Accordingly that decision of the tribunal stood. This was a refusal to review an existing decision made by the adjudication officer, and therefore that decision made by the adjudication officer stood until any later review.

10. On 12th December 1996 the adjudication officer purported to review the decision made by the tribunal on 15th May 1996 and decided in a very brief decision that there was no entitlement to DLA from that date because it had been awarded in ignorance of the true ability of the claimant to walk and move. Of course what had been requested in reality was a review not of the tribunal decision of 15th May 1996, but of the adjudication officer’s decision of 31st October 1994. The claimant’s solicitors requested a further review. On 14th March 1997 the claimant’s GP provided a further report. The claimant had told him that his condition had deteriorated in a number of ways. However the GP was of the opinion that the claimant could safely do all the things that he was specifically asked about, except for walking (on which the GP expressed no opinion because he had not seen the claimant walk). He reported that there had been some falls because of dizziness and numbness of the legs.

11. On 20th March 1997 the adjudication officer carried out a further review, this time going into considerable detail. It is not clear whether the same error was made as to what was being reviewed because this time the adjudication officer’s conclusion was “Although I have reviewed the decision [of 12th December 1996] I have decided that I cannot revise it so as to award benefit”. The new decision was defective, though, because it did not specify the review ground under section 30(2) of the Social Security Administration Act 1992. On about 3rd July 1997 the claimant appealed to the tribunal against this latest decision of the adjudication officer.

12. As a preliminary matter the tribunal chairman requested a medical examination and report on the claimant from a doctor acting on behalf of the Benefits Agency. It appears that the claimant’s solicitors took the view that the matter hinged on a point of law, that it was for the Secretary of State to prove the grounds for review, and that on legal advice the claimant declined the medical examination. It is certainly the case that the burden of a proof in a review is on whoever seeks the review. Nevertheless if the tribunal were to find (as it did) that grounds for review had been established and that there was evidence pointing towards a decision adverse to the claimant, the claimant might be depriving himself of evidence to counter this. On the other hand, of course, he might also be depriving the Secretary of State of further adverse evidence. 

13. The matter was listed for hearing on 30th March 1999. The claimant’s solicitor wished to reformulate the basis for the appeal and the matter was adjourned. The claimant was specifically warned that adverse inferences could be drawn if he failed to attend the new hearing without good cause for such failure.

14. The tribunal finally met to consider the matter on 14th February 2000. The claimant did not attend in person but his solicitor again took the view that the matter depended purely on legal argument. It seems to me that in the circumstances this was a high risk strategy. No oral evidence was taken at the hearing. The claimant’s solicitor accepted that in the circumstances the claimant could not rely on any assertion of deterioration since 1996. He did put forward instructions from the claimant that the distance over which the 1996 tribunal had observed the claimant too walk was 50 metres and not 70 metres. The tribunal accepted the accuracy of the observations made by the members of the earlier tribunal on 15th May 1996. It also pointed out (in paragraph 14 of its decision) some of the physical features of the venue at which the events had happened. On the basis of this and its other findings the tribunal concluded that as at 15th May 1996 the claimant did not satisfy the conditions of entitlement to DLA, to which he was therefore not entitled as from that date.

15. The later tribunal quite rightly pointed out that the members of the1996 tribunal had not been making any decision on mobility component but merely recording what they had observed. The 1996 tribunal had not relied on those observations (which had been made after the decision had been reached) in reaching its decision on the matter before it. I also agree with the comment made by the later tribunal (in paragraph 13) that:

“It seems to us that members of a tribunal are as free as anyone else to report to the appropriate authority that someone receiving [DLA] physically appears not to be entitled to it. It is a matter for others what is done with that information.”

16. The tribunal did agree with the claimant’s solicitor that what had to be reviewed was the decision made by the adjudication officer on 31st October 1994. On the basis of the decision made by the Commissioner in CIB/0213/1999 the tribunal assumed jurisdiction to carry out its own review of the decision of the adjudication officer. It found that the decision of the adjudication officer had been made on the basis of mistake of material fact as to the true ability of the claimant to walk and to prepare and cook a main meal for one person. It found that the protection given to life awards in sections 32(4) and 33(6) of the Social Security Administration Act 1992 precluded neither the adjudication officer nor the tribunal from reviewing the 1994 award. This was because the observations made by the members of the 1996 tribunal amounted to admissible evidence providing reasonable grounds for believing that entitlement ought not continue. 

17. The tribunal reached its substantive decision on the basis of the documents, the observations of the 1996 tribunal, the failure of the claimant to attend and refute the previous tribunal’s observations and his failure to submit himself to a further medical examination or to produce further medical evidence himself. It is arguable that the tribunal should have expressed is decision in terms of there having been no entitlement from 26th August 1994 (the date of claim) but, if that was an error on the part of the tribunal, it was made in favour of the claimant.

18. On 12th December 2000 the chairman of the tribunal granted the claimant’s application for leave to appeal to the Social Security Commissioner against the decision of the tribunal. The Secretary of State (who has taken over the conduct of this matter from the adjudication officer) opposes the appeal and supports the decision of the tribunal. 

19. I have dealt with some of the grounds of appeal in my comments above. I now deal with the others. The claimant queries reliance on CIB/0213/1999. It is not immediately clear why the tribunal cited this particular decision (in which the point at issue here was not the major point). However, it is merely one example of many, many decisions in which Commissioners have held that the tribunal stands in the shoes of the adjudication officer and has jurisdiction to review any decision which the adjudication officer had jurisdiction to review. The argument to the contrary fails.

20. In my opinion there was nothing at all improper about the course of action taken by the 1996 tribunal or in the fact that the 2000 tribunal relied on the observations of the former. I do not accept the argument that the independence of the later tribunal was circumscribed by considering evidence from a fellow tribunal, or by the fact that the chairman of the earlier tribunal has since become a Commissioner. The only challenge to the accuracy of the observations made by the 1996 tribunal was as to the distance over which the members watched the claimant. Even if it is the case that the relevant distance is 50 metres rather than 70 metres, that does not materially affect the relevance of the observations. Had the claimant challenged the veracity of the members of the 1996 tribunal, then steps would have had to be taken in relation to the composition of the later tribunal. However, that was not the basis on which the claimant’s solicitors presented the case. 

21. Other matters raised by the claimant relate to questions of fact which were for the tribunal to determine. On these matters the tribunal was entitled on the evidence before it to make the findings that it made for the reasons that it gave. For this and the above reasons this appeal by the claimant does not succeed.

H. Levenson
Commissioner

19th March 2002