[2005] UKSSCSC CDLA_205_2005 (19 April 2005)

DECISION OF SOCIAL SECURITY COMMISSIONER

Decision

1.	I find no error of law in the decision of a tribunal sitting at Fox Court in London (the tribunal) on 27 August 2004.  The tribunal’s decision therefore stands.

Background

2.	In issue is a new claim for disability living allowance (DLA) received on 30 May 2003 on which a wholly adverse decision was made by a decision maker (DM) on behalf of the Secretary of State dated 30 July 2003.  

3.	In his claim form, the appellant listed his illnesses or disabilities as arthritis in all joints, anxiety and depression.  Amongst other questions, the claim form specifically asked whether he needed someone to tell or encourage him to deal with various care needs, including washing or taking a bath or shower, or dressing or undressing; in each instance, the appellant clearly indicated that he did not require that particular kind of help.  He expressly described his problems in all these areas as arising from pain, discomfort and dizzy spells.  To the question “How long on average does it take you to wash or to have a bath or shower?”, the appellant answered that it took 20 minutes and he required help twice a day on each day of the week.  To a similar question with respect to dressing or undressing, he said that it took him 10 minutes on average to get dressed or undressed each time, again requiring help twice a day on each day of the week.

4.	For the purposes of the DM’s decision, the DM obtained a report from the appellant’s general practitioner (GP); such report is dated 20 June 2003 and the GP gave the diagnosis of the disabling conditions as “arthralgia of multiple joint (sic)” and “right leg pains”.  The GP described these conditions as ones of “moderate severity”.  In response to a heading of “self-care – for example washing, dressing, feeding, using the toilet, continence and ability to rise from the chair”, the GP underlined the activities of washing and dressing and wrote “does not wash self or clothes often enough.  Long uncut toe nails”.

5.	The appellant appealed to a tribunal.  He referred first to mobility and cooking difficulties and then that, “I have various care needs”.  He requested a hearing on the papers.  He was, and remains, represented by the Disability Advice and Information Services Limited” (DAIS).  His representative produced a written submission on the claimant’s behalf for the benefit of the tribunal adjudication.  The representative pointed out the following:

	“The decision maker accepts some help may be needed with bathing or dressing.  By [the appellant’s] estimate in the claim pack this would add up to an hour a day leading to a need for attention for a significant portion of the day”.

6.	The appeal came before a tribunal (the first tribunal) on 30 October 2003.  The first tribunal confirmed the adverse decision by a DM but its decision was set aside by a Commissioner in CDLA/941/2004.  At paragraph 6 of his decision, the Commissioner stated that the following error of law was, in his view, established:

	“The tribunal do not, in their reasons, deal with the extent to which attention was reasonably required in a time sense despite the evidence before them in that regard.  In these circumstances that (sic) they have not reasoned their decision sufficiently”.

The tribunal hearing and decision

7.	The tribunal hearing on 27 August 2004 was again on the papers.  The Commissioner in CDLA/941/2004 had given no specific directions and there was no further submission or evidence on the appellant’s behalf.  Like the first tribunal, the tribunal confirmed the adverse decision under appeal.

8.	On request, the tribunal provided a statement of facts and reasons of four pages.  It included the following:

“b)	At page 12 it is stated that he has arthritis in all joints which is bad in his legs and hands, anxiety and depression.  He listed cream for his arthritis and codydramol tablets 2 per day.  This evidence is in contrast to that of his General Practitioner at pages 31 to 45 and bearing in mind that the report was requested from his General Practitioner stating his conditions to be arthritis and depression and that the General Practitioner had seen him on 07 02 2003 and 19 05 2003 the Tribunal preferred the evidence of the General Practitioner with regard to the disabling conditions.  Accordingly the Tribunal accepted that [the appellant] had normal upper limb functions, sciatic pains in his right upper leg causing limping and arthralgia of multiple joints. … He does not wash himself or his clothes often enough and he had long uncut toe nails. …

c)	On the basis of the medical evidence that he had normal upper limb functions and that restriction of grip or impairment of fine movement was minimal, that the conditions were of moderate severity the Tribunal  did not accept [the appellant] was so severely disabled that he was unable to attend to his bodily functions by day. …

d)	There is no mention by the General Practitioner of any anxiety or depression and … [t]here is no medication suggesting anxiety or depression or any treatment for mental health conditions. …

5.	… [B]earing in mind that he had been seen twice within the same year the Tribunal  concluded that the General Practitioner did have sufficient knowledge about [the appellant] in order to write the report.  The report was before [the appellant] and his representative and they took no steps to challenge the accuracy of it and the Tribunal could find no grounds on which to find the contents of that report unreliable.

6.	…The Tribunal found no basis on which to challenge the reliability of that medical evidence and therefore preferred it to that of [the appellant].  Whilst accepting the representative’s submission that an appellant’s own evidence is good evidence when that is contradicted by the evidence of equal or greater weight then providing that a sufficient opportunity has been given to the appellant without too much inconvenience or expense it would not be unreasonable for the appellant or those acting on his behalf to challenge the accuracy of the medical evidence or to give some indication with regard to the history and background of the appellant including any form of referral or treatment.  It could be that the General Practitioner’s notes are incomplete.  However in spite of their long association with [the appellant] and the opportunities they had no such evidence has been produced.  On balance therefore the Tribunal  preferred the evidence of the General Practitioner to that of [the appellant] because the level of disablement following their (sic) conditions are not consistent with the severity or acuity. … [D]uring the day the Tribunal found that the claimed level of disablement were not consistent with the condition, medication or opinion as expressed by the General Practitioner who had recently seen [the appellant] and accordingly he did not reasonably require attention with his bodily functions either frequently throughout the day or for a significant portion of the day. …”

Appeal to the Commissioner

9.	Once again the representative appealed on the claimant’s behalf.  The present grounds include the following:

	“The claimant did not attend to give evidence.  The Tribunal  therefore had to use their expertise and knowledge to weight the evidence of the GP and the claimant to consider if the claimant reasonably required any attention.  The Tribunal were expected to consider the evidence of the GP in the context of the claimant’s depression.

	Although the Tribunal has produced a detailed explanation they have failed to explain how they weighed this evidence. … It has been accepted that giving support and encouragement to someone who is severely disabled by phobias, depression and paranoid illnesses has been held to be attention in connection with bodily functions.  The Tribunal may have felt that the claimant was not so severely disabled by his depression as to need attention but they have failed to say this.”

10.	A Commissioner granted leave for the following reasons:

	“The grounds of appeal may merit further consideration.  Further did the tribunal adequately deal with the claimant’s possible requirements for attention with bathing and dressing/undressing …”.

11.	The Secretary of State supports the appeal but asks that I substitute my own decision to the same effect.  The Secretary of State’s support is in these terms:

	“… the tribunal did not deal with prompting, which arose from the claimant’s depression.  The tribunal’s failure to do this is erroneous in law.  However had they accepted this, it would not have given rise to entitlement”.

12.	The representative’s response is as follows:

	“… The Secretary of State … argues that prompting to wash and to bathe would not amount to frequent attention throughout the day or attention for a significant portion of the day.  The Secretary of State appears to have discounted any attention needed to ensure the claimant changes his clothes.

	… However, one must also consider the broader concept of personal hygiene.  For example, if the claimant were to spill anything on his clothes would he require prompting to change them?  Would he follow basic hygiene practices of washing his hands after using the toilet or would he require prompting?

	…”

My conclusion and reasons

13.	The support of the Secretary of State does not make sense.  That submission sets out the lack of mention at any stage (indeed, the contrary) by the claimant, or on his behalf, that he needs encouragement; and also points out  the express finding by the tribunal that no anxiety or depression has been established on a balance of probabilities, having regard to all the evidence.  The suggestion therefore made by the Secretary of State that the tribunal erred in law because it did not deal with an issue of prompting, arising from depression, cannot logically follow.

Weighing the evidence and providing adequate facts and reasons

14.	Evaluation of the evidence and determination of the merits is for the tribunal.  The Commissioner’s jurisdiction is limited to errors of law and none have been demonstrated by the applicant nor discerned from the documents.  Unless there is an irrational or improper approach, or it is inadequately explained, a Commissioner cannot interfere.

15.	The tribunal has provided adequate facts to justify its decision and fully explained its reasoning for the benefit of the applicant, with a clear indication in particular of why it took the view of the evidence it did.  The weight to be given to any item of evidence is a matter of fact, and re-hearing of factual issues is not the concern of an appeal.  The choice between two contradictory items of evidence has to be faced head on and provided the choice made by the tribunal, to which body is given the determinative function, is such as a reasonable tribunal could have made and the thinking behind the choice is set out, no error of law arises.

16.	The test for sufficiency of reasoning laid down for statutory tribunals by the Lord President of the Court of Session in Wordie Property Co. Ltd. v. Secretary of State for Scotland, 1984 S.L.T. 345 at p.348 is this:-

“ …all that requires to be said is that in order to comply with the statutory duty imposed upon him the Secretary of State must give proper and adequate reasons for his decision which deal with the substantial questions in issue in an intelligible way.  The decision must, in short, leave the informed reader and the court in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it.”

17.	The tribunal’s statement in this case, read as a whole, was a carefully reasoned and explicit decision which left the informed reader in no doubt as to the view it took of the evidence and how it exercised its judgement, having regard to the statutory criteria.  The tribunal could not be expected to consider the evidence of the GP in the context of the claimant’s depression, as the representative suggests, when it did not accept depression.  That the decision maker accepted it is beside the point as a tribunal conducts a fresh hearing on all points and is in no way bound by any view of the decision maker.

18.	The tribunal explained clearly why it found that anxiety or depression were not accepted in the appellant’s case.  That, combined with the lack of any prior argument that any reasonable requirement for prompting was in issue, mean that there was no requirement whatsoever thereafter for a tribunal to address the point.  A tribunal is entitled to rely on the case put by a competent representative but, in any event, the negative finding on depression and anxiety, sufficiently explained, meant that any supposed need for support and encouragement could not arise from disablement.

19.	The burden of proof on all matters lies on the claimant.  Having regard to the quality of all the evidence in the case, the tribunal did not find his entitlement to be made out and explained why.  The tribunal is not required to set out every specific point made on behalf of the appellant if its statement of facts and reasons makes clear why the appellant’s case has not been accepted.  The duty is not to leave the claimant “in the dark” on any matters.  I do not consider that the tribunal failed in such duty.

Incidence and duration of reasonably required attention 

20.	The Commissioner when granting leave and referring to possible requirements for attention with bathing, dressing and undressing, presumably meant consideration of the claimant’s own case which was that such needs arose from physical problems.  However that same evidence in no way indicates a reasonable requirement for such attention for a significant portion of the day and the GP’s comments did not sufficiently bolster the case.  With respect, I do not agree with the Commissioner in CDLA/941/2004 who suggested that there was evidence in the papers of “… the extent to which attention was reasonably required in a time sense”.

21.	A claimant must reasonably require “in connection with his bodily functions attention from another person for a significant portion of the day …”.  On his claim form the appellant stated how long it took him without help to carry out the various activities.  This indicates whether help might be reasonably required but provides no estimate whatsoever of the time it would take another person to give appropriate assistance.  Contrary to what the Commissioner appears to have thought, these are two distinct matters.  No evidence or argument was ever put to the tribunal on the length of time for which help would be reasonably required with respect to washing and dressing or when it would be reasonably required, on which such emphasis is now laid.  It is also important that, in evaluating what is reasonable, consideration is paid to both the giver and recipient of the attention: in some circumstances, the disproportionate impact providing a service would have on the former’s life makes it unreasonable for the claimant to do other than manage by himself.

22.	The representative only now, at a very late stage, raises contentions about “the broader concept of personal hygiene” but the tribunal is not required to second guess every possible point.  Even if the claimant’s physical disablement justified a reasonable requirement for help with washing, bathing, dressing and undressing, there was insufficient before the tribunal in the papers (and of course the tribunal did not have the benefit of amplification from either the appellant nor the representative at an oral hearing) which could satisfy the claimant’s onus to establish that any help he reasonably required would amount to attention with his bodily functions either frequently throughout the day or for a significant portion of the day; the tribunal expressly found there was none such.  Having regard to its findings and reasons, and assuming an informed reader as one must, the tribunal said enough.
Summary

23.	For the above reasons, in my view, no error of law is demonstrated and therefore the tribunal’s decision stands.  The tribunal did not apply any wrong legal test.  The tribunal made adequate findings of fact having regard to the totality of the evidence; it did not accept the appellant’s evidence, on whom lay the onus of proof, to any extent which could satisfy appropriate statutory criteria and said why so.  The tribunal adequately explained what disablement it accepted in the claimant’s case and why his condition was not such as to satisfy the statutory tests.  There was no irrational assessment of the appellant’s evidence.  In my judgement the tribunal paid regard to all the relevant information in the case (it is not required to refer to every item of evidence in repetition of it, if it is clear from its overall reasoning that it has taken it into consideration) and took no account of irrelevant factors.  In no respect was its decision perverse.

						(Signed)
						L T PARKER
						Commissioner
						Date:  19 April 2005