PLH                                                                         Commissioner's File:  CDLA 3017/02

SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for:  		Disability Living Allowance
Appeal Tribunal: 	Birmingham
Tribunal Case Ref:  	U/04/024/2001/06748
Tribunal date:		18 March 2002
Reasons issued:		24 April 2002

1.	This claimant’s appeal must be dismissed, as in my judgment there was no error of law in the decision of the Birmingham appeal tribunal sitting on 18 March 2002, when they confirmed the earlier decision of an officer on behalf of the Secretary of State that the claimant did not meet the conditions for any award of either component of disability living allowance from the effective date of his claim on 27 October 2000.
2.	The claimant is a man now aged 35, who according to the undisputed evidence before the tribunal has suffered from quite serious ill‑health for some years.  In particular he is an insulin-dependent diabetic, suffers from pancreatitis, kidney and bowel trouble and also from depression, and is on a variety of medication for all of these conditions.  It appears that although he does not suffer from hypoglycaemic episodes the combination of his various conditions, and perhaps also the side effects of the medication he is taking, are prone to make him feel weak and dizzy, and he has consistently reported feeling dizzy and weak so that he cannot stand for any length of time and lacks confidence when out walking.  His original claim pack for disability living allowance received on 27 October 2000 asserted a very high level of disability, including physical problems and a need for somebody else to be with him at all times when out walking, inability even to hold a pan to boil water, and a need for help from another person all the time both by day and by night because of dizzy spells occurring seven times a day, every day, and seven times a night, every night.  
3.	Following the obtaining of medical reports from his own GP and a departmental doctor (on the basis of which his claim was rejected, in the decision under appeal dated 25 January 2001 at pages 54 to 59) and a further medical report from a consultant physician (Dr. Carmalt) dated 3 July 2001 at page 65, these requirements were wisely trimmed, in a letter from his solicitors to the tribunal on 13 March 2002 setting out his case.  This said (pages 67 to 68) “The claimant concedes that he is not entitled to the DLA mobility component but says that he is entitled to at least the lowest rate care component” and then referred to a sentence in Dr. Carmalt’s report saying “Because of the giddiness with falls … he cannot stand to cook a meal” in support of the contention that the claimant qualified for at least the lowest rate of care component on the ground of inability to prepare and cook a main meal for himself.  
4.	The appeal against the tribunal’s decision, which confirmed that of the Secretary of State’s officer rejecting the claim altogether, is based solely on the tribunal’s treatment of that evidence, and the lowest rate care component. It is brought on the ground that the tribunal decision is erroneous in law because the tribunal have failed to give adequate reasons for it:  see the letter of appeal dated 16 May 2002, in which the claimant’s solicitors go on to say that:  
“The claimant does not take issue with the tribunal decision in that he concedes that he is not entitled to any mobility component nor to the middle or higher rate care components, but still maintains that he is entitled to the lowest rate care component, in particular because he is unable to prepare and cook a main meal for himself.”
5.	The particular passage in the tribunal’s decision which is thus said to be erroneous on this one issue is in paragraph 11 of the statement of reasons sent to the parties on 24 April 2002 at pages 74 to 76, as follows:
“	11.	His care needs as stated by Dr Carmalt, on the basis of what he has been told by Mr Khan rather than on the basis of his clinical findings, is that he needs help getting in and out of the bath, he cannot hold heavy saucepans, peel vegetables or stand to prepare a cooked meal.  However, the tribunal preferred the evidence of the EMP, as his opinion was based on clinic findings and is likely to be more impartial than Mr Khan’s.  The Tribunal considered all the evidence that was available at the date of decision.  It concluded, on a balance of probabilities, that Mr Khan did not need attention from another person for a significant portion of the day in connection with his bodily functions, and he could cook a main meal if he had the ingredients.”
6.	In the immediately preceding paragraphs of the statement of reasons the tribunal had recorded, entirely accurately, that what was actually said in both the GP’s and Dr. Carmalt’s reports was that they had been told by the claimant that he had difficulties with imbalance, dizziness and unsatisfactory gait, but that no details of recorded injuries as a result of falls were given; and that Dr. Carmalt confirmed the claimant had no diabetic comas or hypoglycaemic reactions associated with his diabetes, though his blood glucose may be higher than is found with good diabetic control.  They also said that they had before them (this being a hearing on the documentary evidence only) no credible evidence as to falls; no criticism is made of that finding.  
7.	I granted leave to appeal in this case in view of the tribunal’s comment that Dr. Carmalt’s assessment of the claimant’s care needs was based on what he had been told by the claimant himself rather than his own clinical findings. The submission on behalf of the claimant was that as Dr. Carmalt’s report begins by recording that he had in fact examined the claimant on 6 June 2001, there was nothing before the tribunal to suggest that his opinion was not based on his clinical findings; and that as was said by another Commissioner in another case (in relation, quite coincidentally, to a report of the same physician) it would be astonishing if he had made statements in his report as fact if he did not believe they were consistent with what he found on examination.
8.	This was a reasonable and fair argument to put forward given the way the tribunal expressed themselves, but having now had the advantage of considering the matter more fully, with the benefit of the submission by Ms D Hinchcliffe on behalf of the Secretary of State dated 10 December 2002 at pages 92-93 and that of the claimant’s solicitor in reply dated 10 October 2002 at pages 94-95, I have reached the conclusion that an error of law on the part of the tribunal, such as to invalidate their decision on this issue, has not been demonstrated.  
9.	It seems to me Ms Hinchcliffe is right in saying that on a fair reading of paragraph 11 of the tribunal’s statement of reasons taken as a whole, there is no doubt as to the reasons which led the tribunal to the conclusion that they reached, having as they expressly said considered all the evidence that was available at the date of the decision including that of the departmental examining doctor, which the tribunal were entitled to take into account and prefer if they thought right; and in any event that there was no real inaccuracy in what they actually said.  
10.	Dr. Carmalt’s report on page 65 is perhaps a little less helpfully laid out than it might be, in that it is not divided into separate headings for the “history” as reported by the claimant, and the doctor’s own “findings” as demonstrated on clinical examination, before proceeding to express a conclusion under the heading “Opinion”; but it is not actually difficult when one looks at the content of the report to distinguish which is which.  As pointed out in the Secretary of State’s submission, Dr. Carmalt’s record of his own findings on examination consists only of his observations that the claimant’s spinal movements were full though painful, and handgrip only moderately reduced; he was able to get on the examination couch without difficulty and had no incoordination; when his walking ability was tested he was able to walk 100 metres out into the road without stopping but “lacked confidence to walk alone for fear of falling”.  I accept of course that as pointed out by the claimant’s solicitor in reply the taking of a history from the patient is a most important part of a medical examination, and an opinion expressed by a clinician is no less valid for being based on this, as much as on the findings and clinical signs his own examination demonstrates.  But it seems to me what the tribunal said about Dr. Carmalt’s opinion in this case was in fact strictly accurate: the care needs his “opinion” paragraph describes were derived much more from the claimant’s own history of reported symptoms, than from the actual clinical findings Dr. Carmalt recorded on the physical examination he carried out.
11.	I do not however think it right to infer from that comment, as the argument on behalf of the claimant does, that the tribunal thereby wrongly excluded Dr. Carmalt’s opinion from their consideration.  On the contrary, it seems to me their stated reasons demonstrate that they did take proper account of what Dr. Carmalt said, but did not find it and the claimant’s own evidence outweighed the other evidence before them; with the consequence that on a balance of probabilities they were not satisfied that the required level of disability had been proved, as they recorded in the final paragraph of their statement of reasons.  
12.	As the Secretary of State’s submission is of course correct in saying, the weight to be accorded to evidence, and the difficult balancing exercise that has to be undertaken in a case of this nature, are matters for the tribunal of fact hearing the case to determine.  As had been pointed out many times, it does not amount to an error of law that another tribunal or professional person approaching such matters equally carefully and conscientiously might have reached a different conclusion.  Even if the reference to Dr. Carmalt’s report could have been better expressed, that still does not amount to an error of law such as to invalidate the tribunal’s decision if, as here, the actual conclusion was one open to them to reach on a fair consideration of all the evidence and there is no real room for doubt as to the reasons that led them to reach it.  
13.	It is quite rightly not contended on behalf of the claimant on this appeal that the conclusion was outside what a reasonable tribunal could properly reach on this evidence. Nor in any event am I persuaded that what Dr. Carmalt actually says in the relevant part of his opinion (“Because of the giddiness with falls … he cannot stand [sic] to cook a meal”) amounts to evidence demonstrating entitlement to the lowest rate care component.   As pointed out by the Commissioner in case CDLA 2267/95, it is not necessary for the purposes of the basic meal requirement in section 72(1)(a) Social Security Contributions and Benefits Act 1992 that a person should be strong enough to lift heavy pans, or be able to stand up for extended periods instead of preparing and cooking the meal while sitting on a high stool or chair if necessary.  The other decision in case CDLA 3877/00 to which I was referred is not of any assistance to me, as it was one given by consent under section 14(7) Social Security Act 1998 without full reasons, and does not set out the facts or the terms of the medical report at issue in that case.  
14.	For those reasons, this appeal is dismissed. 

(Signed)
P L Howell
Commissioner
19 November 2002