CF-v-Department for Social Development (DLA) [2013] NICom 39 (13 June 2013)

CF-v-Department for Social Development (DLA) [2013] NICom 39

Decision No: C4/13-14(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 11 November 2011

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal. The decision of the appeal tribunal dated 11 November 2011 is not in error of law. Accordingly, the appeal to the Social Security Commissioner does not succeed. The decision of the appeal tribunal to the effect that the appellant is not entitled to the either component of disability living allowance (DLA) from and including 21 March 2011, is confirmed.

Background

2. On 23 May 2011 a decision-maker of the Department decided that the appellant was not entitled to either component of DLA from and including 21 March 2011. On 7 June 2011 an appeal against the decision dated 23 May 2011 was received in the Department.

3. Following an earlier postponement, the substantive appeal tribunal hearing took place on 11 November 2011. The appellant was present, accompanied by her mother and was represented by Mr McIlmurray of the Citizens Advice organisation. There was no Departmental presenting officer present. The appeal tribunal disallowed the appeal and confirmed the decision dated 23 May 2011.

4. On 26 April 2012 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service. On 9 May 2012 the application for leave to appeal was refused by the legally qualified panel member.

Proceedings before the Social Security Commissioner

5. On 18 June 2012 a further application for leave to appeal was received in the Office of the Social Security Commissioners. In connection with this application the appellant was represented by Mr Mitchell of the Citizens Advice organisation. On 20 September 2012 written observations on the application for leave to appeal were sought from Decision Making Services (DMS) and these were received on 18 October 2012. In these initial written observations, Mr Donnelly, for DMS, opposed the application on all of the grounds submitted by Mr Mitchell. Written observations were shared with the appellant and Mr Mitchell on 29 October 2012.

Errors of law

6. A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.

7. In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals. As set out at paragraph 30 of R(I) 2/06 these are:

“(i) making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);

(ii) failing to give reasons or any adequate reasons for findings on material matters;

(iii) failing to take into account and/or resolve conflicts of fact or opinion on material matters;

(iv) giving weight to immaterial matters;

(v) making a material misdirection of law on any material matter;

(vi) committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …

Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’). Errors of law of which it can be said that they would have made no difference to the outcome do not matter.”

Was the decision of the appeal tribunal in the instant case in error of law?

The submissions of the parties

8. In the application for leave to appeal, Mr Mitchell has submitted that the decision of the appeal tribunal was in error of law on the basis of the following submitted grounds:

(i) The appeal tribunal failed to supply adequate reasons for their decision/the evidence did not support the decision.

More particularly, Mr Mitchell submitted that the appeal tribunal in arriving at its conclusions with respect to entitlement to the higher rate of the mobility component of DLA appear to have favoured the more ‘general’ general practitioner (GP) records over the appellant’s own oral evidence and the specifics of a GP factual report (GPFR). Mr Mitchell submitted that:

‘The GP Factual Report asks specific questions relating to entitlement of DLA, yet the panel do not appear to have afforded proper weight to this, rather favouring the more general GP notes and records.’

Mr Mitchell submitted that in failing to explain its rationale for favouring the GP notes and records the appeal tribunal had erred in law.

Mr Mitchell also submitted that the appeal tribunal failed in its inquisitorial function to make further findings in fact about the appellant’s attendance at physiotherapy in connection with her problems with mobility.

Mr Mitchell also submitted that the appeal tribunal drew improper references from a comment made by the appellant’s GP in the GPFR concerning the appellant’s requirement to self-catheterise. Mr Mitchell submitted that there was nothing in the GP’s statement in the GPFR to refute the appellant’s own oral evidence that she found it hard to manage the catheter and that friends and family helped. The appeal tribunal had made reference to a statement by a consultant urologist that the appellant’s medical condition had an ‘impairment on her quality of life and normal daily activities’ but then found that the appellant was capable of self-care. Mr Mitchell submitted that normal daily activities would include catheterisation and assistance with this.

(ii) The decision contained a misdirection about, or misunderstanding of the relevant law.

More particularly, Mr Mitchell submitted that the principle, set out in R(SB) 33/85 that a claimant’s evidence did not require corroboration, did not seem to have been followed by the appeal tribunal.

The decision of the Social Security Commissioner in Great Britain in CDLA/4580/2003 was authority for the principle that where ‘…. a general practitioner states “unknown” in response to the request for information the tribunal must treat the reply as neutral, in the absence of further qualification or amplification, and the doctor’s comment is not a basis for a finding of fact.’ Mr Mitchell submitted that the appeal tribunal had drawn adverse inferences and formed conclusions based on supposition and assumptions.

Mr Mitchell also submitted that the appeal tribunal had misinterpreted the law in its assessment of ‘severe discomfort’ for the purposes of section 73(1) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 and regulation 12 of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992. Mr Mitchell submitted that the appeal, while acknowledging that the appellant’s walking was affected by pain, it appeared to consider pain to be of a lesser degree than severe discomfort.

9. As was noted above, in the written observations on the application for leave to appeal, Mr Donnelly, for DMS, opposed the application on all of the grounds cited by Mr Mitchell.

Analysis

10. I begin by addressing Mr Mitchell’s submission concerning the manner in which the appeal tribunal assessed the evidence contained within a factual report from the appellant’s GP. The relevant report was completed by a GP on 18 May 2011 and a copy of that report was attached to the original appeal submission as Tab No 3. The factual report is in a standard format utilised as part of the decision-making process in connection with claims, including renewal claims, to DLA. At section 2 of the report, the GP gives quite a detailed history of the appellant’s medical conditions. At section 3 the GP is asked to provide details of ‘… day to day variation in the condition(s) (if any) including frequency and duration of exacerbations.’ In response, the GP has stated:

‘Difficulty with pain management - chronic daily pain with frequent exacerbations.

A & E attendances with pain and symptoms of infection, approx. monthly in recent months.

Feeling down on a daily basis/ thoughts life not worth living but no suicidal ideation.’

11. At section 6(a) and 6(c) the GP is asked to ‘… give details, if known, of the effects of the disabling condition(s) on day to day life’ and, more specifically, on the appellant’s ability to self-care and to get around. The GP’s response is:

‘Intermittent self-catheterisation

Chronic disabling daily pain.’

12. The GP also recorded, when asked to provide further details:

Patient awaiting pain clinic review. Was self-catheterising up to 20 times daily therefore permanent catheter introduced a few days ago.’

13. Mr Mitchell makes a number of points in connection with the factual report. He submits that the appeal tribunal did not give an adequate explanation as to why it preferred the evidence contained within the appellant’s GP records to that contained within the factual report which is specifically aimed at eliciting evidence in connection with entitlement to DLA. Mr Mitchell also submits that the appeal tribunal drew improper references from a comment made by the appellant’s GP in the GPFR concerning the appellant’s requirement to self-catheterise. Mr Mitchell also submitted that the appeal tribunal had drawn adverse inferences from the absence of a response in the relevant report and formed conclusions based on supposition and assumptions.

14. In the record of proceedings for the appeal tribunal hearing, the appeal tribunal has noted that it considered the Department’s appeal submission, a written submission provided on behalf of the appellant, the appellant’s GP records and a letter from the Urology Department of Belfast City Hospital dated 25 August 2011.

15. In the statement of reasons for the appeal tribunal’s decision, the appeal tribunal has noted that in her self-assessment claim form to DLA, her oral evidence to the appeal tribunal, from the evidence of her mother and in a submission made on her behalf the appellant:

‘… claims to need attention with her bodily functions by day and night (toileting, self-catheterisation, washing, dressing/undressing, getting into and out of bed, moving about indoors, eating and drinking, taking medication) … she also states that her walking ability is restricted to 10-20 metres before the onset of severe discomfort and that she needs physical support at all times from another person’

16. In its consideration of the issues arising in the appeal, the appeal tribunal began by stating that:

‘… we have, in addition to the medical evidence in the scheduled documents (General Practitioner report 18.5.11) and hospital admission/discharge dates, a letter from her Consultant Urologist (25.8.11) and her General Practitioner records.’

17. The appeal tribunal notes from the GP records that the appellant had been admitted to hospital on two occasions in March 2011:

‘On the first occasion she required treatment for septicaemia. On the second occasion all tests (blood, urine CT scan of kidneys) were clear and no cause could be found at that time, or in the succeeding months for (the claimant’s) ongoing complaints of pelvic pain.’

18. It seems to me that this evidence, derived from the appellant’s GP records equates to the evidence contained within the GPFR that there was difficulty with pain management and that there had been attendances at hospital as a result. I am assuming that the admissions as an in-patient followed attendance at the Accident & Emergency Department as described by the GP.

19. In assessing whether the appellant satisfied the conditions of entitlement to the care component of DLA, the appeal tribunal has recorded:

‘Irrespective of the specific periods for which the permanent catheter was inserted, we do accept that (the claimant's) condition, whether using permanent catheter or intermittent self-catheterisation, is one which affects her quality of life and her everyday activities. What we do not accept is the level of problems and requirements for help with bodily functions which (the claimant) claims result from her condition, as this is not, in our opinion, supported by the medical evidence. Her General Practitioner, who is fully aware of her condition, the effects of the level of pain and resulting low mood, identifies no requirement for attention in connection with bodily functions, or for supervision and confirms that she is able to self-catheterise. Her Consultant Urologist similarly refers to impairment of her quality of life and normal daily activities, but does not suggest that she is in any way incapable of self-care, or requires attention in connection with any bodily functions or a degree of supervision. This contrasts markedly with (the claimant's) own statements in her self-assessment form (e.g. needs help with toileting 15 times per day for 10-15 minutes each time, needs help moving around indoors up to 15 times per day. Needs encouraged [sic] to eat, needs help to take medication etc).

The degree of disability and resulting amount of attention which (the claimant) claims, is so substantial, that, were it a realistic assessment of her needs, it could not have failed to reach the attention of her doctors and would be an appropriate subject for comment by them. The fact that such comment is absent suggests to us that (the claimant's) claims are exaggerated and we consider her evidence to be unreliable. We do not accept her contentions that she is so severely physically or mentally disabled as to be unable to prepare a cooked main meal for herself or to need attention in connection with her bodily functions for a significant portion of the day, frequently throughout the day or on a prolonged or repeated basis at night, or to need continual supervision by day to avoid substantial danger.’

20. The objection which Mr Mitchell takes to that reasoning is that the response which the appellant’s GP made to the question in 6(a) of the factual report and the comment by the Consultant Urologist in his report dated 25 August 2011 have been misinterpreted. Mr Mitchell submits that the statement ‘Intermittent self-catheterisation’ by the appellant’s GP does not necessarily mean that the appellant does not require assistance with that function and, further, assistance with that function is assistance with a bodily function.

21. I accept Mr Mitchell’s submission that a straightforward report that there is ‘intermittent self-catheterisation’ necessarily means that the appellant does not require assistance with that function and I also accept his submission that assistance with self-catheterisation would amount to assistance with a bodily function for the purposes of entitlement to DLA. I am in agreement, however, with the appeal tribunal when it stated that the evidence as to the periods when self-catheterisation was acceptable and when that changed and a permanent catheter was required is unclear. Thereafter, however, I am of the view that the appeal tribunal’s reasoning was as follows.

22. The level of attention in connection with her bodily functions which the appellant claimed, in her renewal claim form, in her appeal, and in her and her mother’s oral evidence before the appeal tribunal, was high and extended across a range of bodily functions. The appeal tribunal accepted that the appellant’s requirement to use a catheter whether in temporary or permanent form did impact on her ‘… quality of life and her everyday activities.’ What the appeal tribunal did not accept was that the appellant’s medical problems, including her requirement to use a catheter did not lead to a requirement for attention in connection with all of her bodily functions to the extent which she claimed. In this respect it is important to recall that the appellant claimed a requirement for attention in connection with a range of bodily functions.

23. The appeal tribunal offered two reasons for its rejection of the appellant’s submitted or claimed degree of attention in connection with her bodily functions. The first was that the appeal tribunal found that the claimed degree of attention was ‘exaggerated’ and that her evidence in that regard was unreliable. In this respect, it is important to note that in C14/02-03(DLA), Commissioner Brown, at paragraph 11, stated:

‘ … there is no universal rule that a Tribunal must always explain its assessment of credibility. It will usually be enough for a Tribunal to say that it does not believe a witness.’

24. Additionally, in R3/01(IB)(T), a Tribunal of Commissioners, at paragraph 22 repeated what the duty is:

‘We do not consider that there is any universal obligation on a Tribunal to explain its assessment of credibility. We disagree with CSIB/459/97 in that respect. There may of course be occasions when this is necessary but it is not an absolute rule that this must always be done. If a Tribunal makes clear that it does not believe a claimant’s evidence or that it considers him to be exaggerating this will usually be sufficient. The Tribunal is not required to give reasons for its reasons. There may be situations when a further explanation will be required but the only standard is that the reasons should explain the decision. It will, however, normally be a sufficient explanation for rejecting an item of evidence, including evidence of a party to an appeal, to say that the witness is not believed or is exaggerating.’

25. This reasoning was confirmed in CIS/4022/2007. After analysing a series of authorities on the issue of the assessment of credibility, including R3/01(IB)(T), the Deputy Commissioner (as he then was) summarised, at paragraph 52, as follows:

‘In my assessment the fundamental principles to be derived from these cases and to be applied by tribunals where credibility is in issue may be summarised as follows: (1) there is no formal requirement that a claimant's evidence be corroborated - but, although it is not a prerequisite, corroborative evidence may well reinforce the claimant's evidence; (2) equally, there is no obligation on a tribunal simply to accept a claimant's evidence as credible; (3) the decision on credibility is a decision for the tribunal in the exercise of its judgment, weighing and taking into account all relevant considerations (e.g. the person's reliability, the internal consistency of their account, its consistency with other evidence, its inherent plausibility, etc, whilst bearing in mind that the bare-faced liar may appear wholly consistent and the truthful witness's account may have gaps and discrepancies, not least due to forgetfulness or mental health problems); (4) subject to the requirements of natural justice, there is no obligation on a tribunal to put a finding as to credibility to a party for comment before reaching a decision; (5) having arrived at its decision, there is no universal obligation on tribunals to explain assessments of credibility in every instance; (6) there is, however, an obligation on a tribunal to give adequate reasons for its decision, which may, depending on the circumstances, include a brief explanation as to why a particular piece of evidence has not been accepted. As the Northern Ireland Tribunal of Commissioners explained in R 3/01(IB)(T), ultimately "the only rule is that the reasons for the decision must make the decision comprehensible to a reasonable person reading it".’

26. The second reason offered by the appeal tribunal for its rejection of the claimed level of attention was that it was of the view that as the claimed level of attention was so high and if that level was a ‘realistic assessment of her needs’ then ‘… it could not have failed to reach the attention of her doctors and would be an appropriate subject for comment by them.’ The appeal tribunal has accepted that the appellant’s GP has noted that the appellant has to undertake self-catheterisation on an intermittent basis but when given the opportunity to comment further on the effect of her disabling condition on her ability to self-care made no further comment. Similar reasoning was applied to the correspondence from the appellant’s Consultant Urologist. Finally, it is important to note that the appeal tribunal had access to the appellant’s complete GP records.

27. The appeal tribunal arrived at parallel conclusions in respect of its assessment of entitlement to the mobility component of DLA. In its statement of reasons for its decision in connection with the mobility component, the appeal tribunal stated:

‘Similarly, with regard to mobility, while we accept, as indicated by her “General Practitioner” that she is affected by pain (“chronic disabling daily pain”) there is nothing in her reasonably extensive medical records to suggest that her walking ability would be so compromised as regards distance, speed, length of time or manner in which she can make progress on foot without severe discomfort, that she would be virtually unable to walk.

(The claimant) agrees today that this is not something which she has brought to the attention of her doctors. We are of the opinion that, were (the claimant's) condition such that she could only walk 10-20 metres without severe discomfort, always required physical support from someone else to do so and was subject to panic and anxiety attacks in unfamiliar places, this would have come to the attention of her doctors and the fact that it has not led us to conclude that (the claimant's) account is exaggerated and her evidence unreliable. We are not satisfied that she is so physically disabled as to be unable or virtually unable to walk (while we acknowledge that her walking is affected by pain, for which she takes medication, we do not accepted it to be so significantly affected as to be compromised by severe discomfort) or so severely physically or mentally disabled as to need guidance or supervision out of doors most of the time, disregarding any ability to use familiar routes on her own (the medical evidence provides no substantiation of her claim to be affected by panic or anxiety attacks - her General Practitioner refers to low mood, thoughts of life not worth living but no suicidal ideation or panic attacks - and also fails to support her contention to need physical support from another person to walk, or to be subject to a tendency to stumble/fall).’

28. I cannot find any fault with the appeal tribunal’s reasoning as set out above. In her renewal claim form, in her appeal, and in her and her mother’s oral evidence before the appeal tribunal, the appellant submitted a significant impairment in her ability to get around while out of doors. She submitted that she could only walk a distance of 10-20 metres in less than one minute before the onset of severe discomfort. During the course of her oral evidence to the appeal tribunal the appellant accepted that she had not mentioned this level of mobility impairment to her medical practitioners. The appeal tribunal accepted that the appellant’s mobility was limited by pain but could not accept that it was limited to the extent where she could be described to be unable or virtually unable to walk. Once again, the appeal tribunal offered two lines of reasoning for this conclusion. The first was that the appellant’s evidence was exaggerated and, accordingly, unreliable. The second was that an analysis of all of the medical evidence which was before it to support a level of impairment in mobility such that she could be considered to be unable or virtually unable to walk. In my view, these were conclusions that the appeal tribunal was entitled to arrive at and I find no error in its reasoning in this regard.

29. I have considered Mr Mitchell’s submission that the appeal tribunal had drawn adverse inferences from the absence of a response in the relevant report and formed conclusions based on supposition and assumptions. Mr Mitchell has also submitted that certain passages contained within the statement of reasons for the appeal tribunal’s decision run contrary to the principle, set out in R(SB) 33/85 that a claimant’s evidence did not require corroboration. I do not, with respect, agree with that submission. As was noted above, the appeal tribunal undertook a careful and rational assessment of all of the evidence which was before it and give a detailed explanation of the basis upon which it took a particular view of the evidence which was before it.

30. Mr Mitchell has also submitted that the appeal tribunal had failed to consider the principles in CDLA/4580/2003 in analysing the evidence contained within the GPFR. I agree with Mr Mitchell that the decision in CDLA/4580/2003 is authority for the principle that a response of ‘unknown’ to a request for information must be treated as a neutral response in the absence of further qualification or amplification. I do not, however, and with respect to the submission made, agree that the appeal tribunal has drawn adverse inferences and formed conclusions based on suppositions and assumptions.

31. Finally I have considered Mr Mitchell’s submission that the appeal tribunal misinterpreted the law in its assessment of ‘severe discomfort.’ In his written observations on this aspect of the application for leave to appeal, Mr Donnelly submitted that:

‘Mr Mitchell references Court of Appeal decision ‘Cassinelli v Secretary of State for Social Security,’ R(M) 2/92, in which severe discomfort was held to constitute a lesser threshold than pain. Mr Mitchell believes this decision contrasts with the approach adopted by the panel in that the panel appear to have considered pain to be a lesser degree than severe discomfort, and quotes the following extract from the reasons for decision:

“while we accept, as indicated by her General Practitioner that she is affected by pain (“chronic disabling daily pain”) there is nothing in her reasonably medical extensive medical records to suggest that her walking ability would be so compromised as regards distance, speed, length of time or manner in which she can make progress on foot without severe discomfort, that she would be virtually unable to walk . . .”

“ . . . while we acknowledge that her walking is affected by pain, for which she takes medication, we do not accept it to be so significantly affected as to be compromised by severe discomfort.”

I would add the following sentence which preceded the second extract above:

“We are not satisfied that she is so physically disabled as to be unable or virtually unable to walk.”

Based on the above, I submit that the tribunal have in fact applied the correct test with regards to virtual inability to walk. The tribunal have accepted that (the claimant) suffers from pain, but they do not believe it to be severe discomfort. The issue has not been ignored, the tribunal have clearly considered all the evidence available to it and reached a conclusion which it was certainly entitled to do.

I would also refer to NI Unreported Decision C16/98(DLA), in which Commissioner Brown notes at paragraph 3:

“Whether or not a person is virtually unable to walk is to be determined by looking at the ability to walk without severe discomfort. Severe discomfort may include pain and other conditions such as breathlessness. Not all pain will, however, amount to severe discomfort. The Tribunal was not in error of law in its conclusion that the claimant, being able to walk a reasonable distance at a reasonable speed in a reasonable manner and for a reasonable length of time without severe discomfort, was not virtually unable to walk.”

I therefore submit that the tribunal were correct in their findings and accordingly there is no merit in this ground of appeal.’

32. I accept the submission made by Mr Donnelly and for the reasons which he has set out also do not accept that the decision of the appeal tribunal is in error of law on the basis of this submitted ground.

Disposal

33. The decision of the appeal tribunal dated 11 November 2011 is not in error of law. Accordingly, the appeal to the Social Security Commissioner does not succeed. The decision of the appeal tribunal to the effect that the appellant is not entitled to the either component of DLA from and including 21 March 2011 is confirmed.

(signed)

Kenneth Mullan

Chief Commissioner

28 May 2013

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