[2008] UKSSCSC CDLA_2625_2007 (21 January 2008)

CDLA/2625/2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The claimant’s appeal fails.  The decision of the tribunal given on 11 July 2006 is not erroneous in point of law. 

2.	The claimant is a woman now aged 45 years of age.  She made a claim for disability living allowance (DLA) on 22 August 2005.  This claim was refused by the Secretary of State on 24 November 2005.  The claimant appealed against this decision to the tribunal.  The information supplied in support of her claim focused on the adverse effects suffered for many years from chronic fatigue and depression. The letter of appeal against refusal of DLA spoke of her mental and emotional exhaustion, her problems with her part‑time work because of her poor memory, saying that some days she could not manage on the tills for more than about half an hour before her concentration went.  She also gave details of the problem she suffered with backache, and  pains elsewhere in the body as well as persistent problems with fatigue.  I note that in writing to the DWP about the reason for her appeal being late she mentioned that she “can say things verbally to people better than I can put them down on paper”.

3.	I consider this an important point, because the reason the Commissioner granted leave to appeal in this case was that so much of the claim form was illegible.  I note that the claimant stated on the claim form that she had found it difficult to fill out and complete and hoped it was OK that some of it was still in pencil.  The effect of it being in pencil, of course, is that it did not photocopy properly and therefore while clearly there is some writing at places between pages 30 and 48 of the bundle, most of it is illegible.  The Commissioner was concerned that it was a breach of natural justice for the tribunal to proceed when it could not read what the claimant had said.  However, I agree with the Secretary of State that the fact that the claimant was present and able to give oral evidence, particularly given her preference for oral communication as expressed above,  was sufficient to remedy any deficiency in this respect.  I note also that the claimant said (page 51 of the bundle) that she had difficulty organising her thoughts enough to answer the questions and that she hadn’t managed to answer all of the questions on the form.  I think this makes it eminently reasonable for the tribunal to have proceeded and obtain oral evidence from her. 

4.	Before a decision was made by the Secretary of State, a report was obtained from the claimant’s general medical practitioner.  This report, dated 18 November 2005, confirmed that she had suffered from chronic fatigue since 1978, depression from about 10 years later and more recently had suffered from a premature menopause.  The GP noted considerable variation in the extent of  physical and mental exhaustion after exertion.  He noted that she was able to work part‑time on a flexible basis depending on her stamina levels.  The doctor felt that she could cope with her self‑care but was slow in doing this and needed to rest.  While he felt she sometimes had problems with focus and concentration he considered she had good insight which enabled her to avoid danger; for example, she knew when to avoid driving.  He felt that her ability to get around was affected by back pain, knee pain and fatigue which impeded her stamina when walking.  He noted she could be breathless due to mild asthma.  The doctor also enclosed a letter from the community mental health team based on a clinic visit 2 September 2005.  This noted that her mood was low at times and her appetite variable though her sleep was OK.  It referred to art therapy which was considered helpful and also that the claimant worked in a coffee shop one day a week.  Particular mention was made of her matrimonial situation which was causing considerable stress.  The GP also enclosed a clinic letter dated 16 June 2004 from the clinical assistant at the chronic fatigue clinic which mentioned that her back pain had been improved by use of orthotics but again noted   matrimonial difficulties. Having considered this evidence, the Secretary of State refused the claim.

5.	The claimant challenged the refusal of DLA, stating that she was not able to peel and chop vegetables most of the time because she would be in pain and would not have the strength to do it. She asserted she needed prompting to have a bath and wear clean clothes, and said that two years earlier she had tried to take an overdose of medication.  She also referred to problems further back in her life.  She said she had difficulty pacing herself doing chores and though she tried to exercise more, her legs were sore, and she felt mentally drained after physical exercise.  Despite acceptance by the Secretary of State that the claimant might need prompting with aspects of personal care and felt fatigued, the decision at the reconsideration stage was not to change the decision. The matter then proceeded to the tribunal hearing.

6.	The record of proceedings (page 76 to 78) shows that detailed evidence was taken concerning the claimant’s functional abilities.  It also shows that when the claimant was given the tribunal’s decision, which was to refuse her appeal, she became extremely angry and said that everyone had advised her to claim the benefit.

7.	The claimant had attended the tribunal hearing on her own and it was only after the hearing that she authorised someone else to act on her behalf.  This adviser, from a mental health support group, has no doubt faithfully reproduced the claimant’s dissatisfaction with the tribunal process, and after receipt of the tribunal’s statement of reasons for its decision drafted an extremely detailed challenge to the tribunal’s findings, and also to the procedure as a whole.  As the Secretary of State’s representative notes in the submission to the Commissioner, the grounds of appeal were essentially the claimant’s description of how she felt about the manner in which the hearing was conducted by the tribunal.  No error of law was identified.  It is clear from the detailed comments made by her representative that the claimant wishes she had given her evidence somewhat differently from the way that she did.  However there is no error of law on the part of the tribunal identified, and the complaints made show the claimant’s expectations of the process to have been unrealistic.  Nor do the complaints made demonstrate much understanding of the evidential issues and how they relate to the statutory test to be applied by the tribunal.  The claimant also challenges the tribunal’s acceptance of psychiatric evidence that she was not suicidal.  The tribunal itself was not able to examine her.  While it listened to what she had to say about the evidence provided, it was for the tribunal to decide what evidence to accept.  It is not an error of law for the tribunal, after considering what the claimant had said, to decide nonetheless to accept the psychiatric report which she herself disputed.

8.	As the Commissioner noted when granting leave to appeal, if it was correct that “everyone had advised her to claim”, it may suggest some irresponsibility on the part of those who gave the claimant advice to claim without apparently giving her any indication of the limited grounds upon which she might be successful.  The Commissioner noted that he had some difficulty in seeing how the claimant could possibly have been entitled to the mobility component or the highest rate of the care component of disability living allowance, even though she might be severely disabled.  She herself conceded in evidence that she was not virtually unable to walk and it was also clear from the evidence given that she was able to make use of the faculty of walking without guidance or supervision, even in an unfamiliar area.  Nor did her evidence suggest that she needed attention from another person at night or watching over at night when awake.  Nor was there evidence to support a conclusion that she could be entitled to the middle rate of the care component because there was no evidence to support a finding that she either required continual supervision throughout the day to avoid substantial danger to herself or others, or that she required frequent attention throughout the day in connection with her bodily functions.  

9.	The Commissioner, however, wondered whether there was an arguable case for award of the lowest rate care component in respect of the main cooked meal test, as well as on the ground that she reasonably required attention in connection with her bodily functions for a substantial portion of the day.  In this respect he took into account the evidence that she had a friend visiting and prompting her.

10.	Though the Secretary of State did not support the appeal on the point originally identified by the Commissioner, he too thought it was at least arguable that the tribunal had not made sufficient and relevant findings of fact regarding the cooked main meal test.  She also considered that the amount of prompting or motivating required by the claimant might not have been adequately considered by the tribunal.

11.	The Commissioner can only set aside the tribunal’s decision if it is erroneous in point of law.  The tribunal did consider the main cooked meal test.  It must be remembered that the test is a meal for the claimant alone.  That often seems to claimants to be unrealistic where there is a family, and particularly, perhaps as here, where the claimant has sole responsibility for young children.  The tribunal noted that the claimant did cook for her children and therefore it was not unrealistic for it to conclude that in respect of herself, she would normally be able to prepare for herself a main cooked meal.  The claimant challenges this on grounds of exhaustion, pain in her hands etc. but I do not understand her to dispute that she did prepare food for her children, I note that she gave evidence to the tribunal that she could drive for half an hour before suffering from impaired concentration, and that she could work on the till at her job in the café for 20 minutes at a time before she would need to stop and do something else.  She gave details of the sort of exercise that she undertook, which included swimming, and the tribunal was entitled to consider this evidence, as well as the fact that she drove (which has inevitable implications for the ability to use the hands as well as to concentrate) in deciding that she had not shown that she was not able to prepare for herself a main cooked meal even if the ingredients were to hand.

12.	The claimant complains that the tribunal did not take account of the evidence from her GP, but it seems to me quite clear that it did.  Her GP considered she was able to self care, had insight and was able to avoid dangerous situations. The tribunal noted this report, and given evidence of the range of activities undertaken, and the absence of any oral evidence of prompting, this was sufficient, in my view, to justify the tribunal not considering prompting more specifically. The claimant gave evidence of telephoning the Samaritans and the “Hope Line” but she did not give oral evidence that she required or received support additional to that given over the telephone. I note that Regulation 10C Disability Living Allowance Regulations excludes ‘attention’ which is not given in the physical presence of the severely disabled person, so the assistance received from phone calls could not be taken into account.

13.	The Secretary of State’s representative suggests that the tribunal recorded a finding in the statement of reasons that she was not on anti‑depressants.  This is not so, and might be a misreading of a corrected portion of the record of the proceedings.  The statement of reasons certainly does not state that she is not taking anti‑depressants.  The record of proceedings notes ( see page 77 of the bundle)  “Lofepramine – don’t take it everyday”.

14.	I have no doubt that the claimant will be distressed that her appeal has not succeeded.  The tribunal could only decide her case on the evidence she presented to it, and this evidence, whether it gave a true representation of her abilities or not, showed her to be a person suffering considerable physical, mental and emotional problems, but it did not show her to be a person whose functional abilities were so severely limited as to satisfy the very stringent criteria for award of any component of DLA.

15.	For the reasons set out above the claimant’s appeal fails.  

					(Signed on the Original)	Mrs A Ramsay
									Deputy Commissioner 
                           
					  date				21 January 2008