CDLA 395 2005

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1	I dismiss the appeal. For the reasons below, the tribunal’s error of law was not material to its decision.  I therefore do not set it aside.  

2	The claimant and appellant (Mr A) is appealing against the decision of the Leicester appeal tribunal on 4 11 2004. Permission was granted by a chairman. The appeal  was registered as U 42 038 2002 02714 at the tribunal. 

3	I held an oral hearing of the appeal  in London on  28 November 2004. Mr A was represented by Mr Darren Moore of the Healthy Income Project of Leicester City Counsel. The Secretary of State was represented by  Sean Wilson of counsel, instructed by the Solicitor to the Department for Work and Pensions. 	

REASONS FOR THE DECISION

The facts

4	Mr A claimed disability living allowance. His problems were caused by “dyslexia with severe problems with spelling and writing and communication”.  This wording is identical to that on a medical certificate from Mr A’s general practitioner. In his form Mr A claimed the need for help with communicating with others. He stated that “the doctor” had confirmed that he was unable to work because of his problems.  He told the tribunal that he had completed the claim form himself with help from his wife.

5	The Secretary of State decided that Mr A’s difficulty was not enough to qualify for allowance. He appealed. His representative produced further medical evidence. The representative argued that Mr A had care and mobility needs such that he should receive at least the lowest rate of the care component and lower rate of the mobility component.  On direction by tribunals, a supplementary submission was made for the Secretary of State and a report was submitted from a neuropsychologist. [I note in passing that the tribunal wrongly assumed that the individual was a doctor and a consultant. She was neither. But it had been confirmed to the tribunal that she was qualified to reach a diagnosis for the local NHS trust]. There is also a lengthy report from Dr Hartas, PhD, C Psychol. Mr A confirmed that he was in receipt of long term incapacity benefit and also tax credits for a disabled person. 

The tribunal decision

6	The appeal was heard at an oral hearing. Both parties were represented and Mr A gave evidence.  The tribunal dismissed the appeal. It found that Mr A “has dyslexia with some associated learning difficulties giving rise to poor literacy skills and poor numeracy skills”.  It said that it accepted as fact the report of the consultant neuropsychologist.  And it found as fact that Mr A did not have either care of mobility needs such as to give entitlement to allowance. 

7	In its reasons, the tribunal set out an analysis of the two medical reports and the oral evidence given by Mr A. It found that any problem with mobility was, based on Mr A’s own evidence, not such as to give rise to any entitlement to lower rate of the mobility component.  Similarly, it considered the evidence about ability to prepare a cooked main meal and found that this test was not satisfied. It then considered Mr A’s problems with reading and writing.  It accepted that there were problems but did not accept that attention was required for a significant part of the day. 

8	Separately it commented: 

“We would add that we do not accept that the functions of reading and writing are bodily functions. They are cognitive impairments and would further argue that they do not necessarily fall within the ambit of the care component,.”

Arguments of the parties 

9	The representative put in extensive grounds of appeal. There was a general contention that the decision was inadequate. It was submitted that the tribunal had not adequately explained why it preferred one medical report to the other. The way the tribunal dealt with the lowest rate of the care component was contended to show that the tribunal lacked an understanding of dyslexia. It was also contended that the tribunal had dealt inadequately with the needs for help with reading and writing.  The representative also submitted that the tribunal had made a decision that no reasonable tribunal could make in so far as it decided that neither reading nor writing were bodily functions.  Reference was made to a number of Commissioners’ decisions and in particular CDLA 4295 2000.  The chairman granted permission to appeal. 

10	The secretary of state's representative did not support the appeal in her written submission.  At that stage a Commissioner made a decision on the appeal. It later transpired that the Commissioner had not been supplied with all relevant papers at the time the decision was taken. It was therefore set aside, and the appeal transferred to me. 	I directed a fuller submission from the secretary of state's representative. I asked in particular for an explanation of various comments in the papers about Mr A’s problems with figures as well as reading and writing. I noted that there was nothing in the Disability Handbook prepared by the Department dealing with these issues, and invited a comment.

11	The secretary of state's representative gave a full and helpful submission in reply. It included a medical comment from Dr Pamela Ford of the DWP Corporate Medical Group. 
Part of this dealt with general issues I raised, and I am grateful for that. Part dealt with Mr A’s case, and the medical reports on file. Those comments are not relevant to my decision, and I do not take them into account. 	A response was made for Mr A. This added further medical comment from Dr. Hartas,  in both general terms and specifically to Mr A. Again, I ignore the comments specific to Mr A. Shortly before the oral hearing, further papers were submitted. This included further evidence about Mr A, including an electronic IB85 report completed on 7 February 2005. It also included papers about a complaint made to the Healthcare Commission about the report produced by the neuropsychologist. The complaint had been made in June 2005 and the correspondence suggested significant delays in dealing with it. 

12	Both parties added significantly to the evidence about Mr A during the preparation of this appeal. Much of the added evidence is only relevant if I find that the tribunal erred in law.  Evidence produced after the date of the tribunal hearing cannot be relevant in any way to an assessment of the adequacy of its decision. As I indicated at the oral hearing, later evidence may be relevant only to a new claim, or to supersession. Additional evidence about the original decision only becomes relevant if the decision on the facts has to be revisited. But it does not assist my decision.  I stress this because I must consider the adequacy of the tribunal’s decision, in particular, about the conflicting medical reports as the tribunal was asked to view them. Later clarifications or further medical assessments do not assist. Nor does information about a later complaint about one of those assessments.

13	I also received another written submission from the secretary of state's representative shortly before the oral hearing. This drew my attention to Commissioners’ decisions CDLA 42 1994 and CDLA 8167 1995. Having seen these further submissions, I also looked at the extent to which Commissioners had dealt with issues relating to dyslexia in recent years.  Based on my own researches (as well as the submissions of the parties), it appeared to me that the only recent decisions of Commissioners that added to a debate about disability living allowance and dyslexia or related problems were CDLA 1420 2004 and CDLA 2680 2001. While dyslexia was factually relevant in a few other decisions, it was not in my view central to any other decision.

14	In oral argument, both parties maintained the positions submitted in writing. I am grateful to Mr Wilson for the full skeleton argument and to both parties for dealing with the various points raised.

My decision

15	The issue is whether the tribunal acted perversely in preferring the evidence of the neuropsychologist to that of Dr Hartas. Alternatively, did it fail adequately to explain its decision as to how it weighed the evidence?  In my view, to use a phrase of Mr Wilson, the tribunal acted within the margin of appreciation it had. It did not adopt the approach of finding everything one report stated was right and the other wrong. Had it done so, it would not have found that the diagnosis of dyslexia was fact. Rather, it looked to the two reports for information directly relevant to Mr A’s claim, and it tested the oral evidence of Mr A against those approaches. It explained why it preferred one report to the other where there were directly relevant clashes.  If there was an error in the tribunal’s reasoning, it was that the tribunal stated that it accepted the report of the neuropsychologist as fact, but then proceeded to contradict itself by making a finding on the question of diagnosis where the neuropsychologist had refused to do so. But any error in that contradiction was in Mr A’s favour. I reject that ground of appeal.

16	The tribunal did not err in law in handling the mobility component.  It did not make a decision about the issue whether Mr A had a relevant disability. Instead, it took the pragmatic approach of deciding on the need for any relevant guidance or supervision on the factual evidence.  On this point, I also agree with Mr Wilson. The tribunal handled the evidence on this issue in a balanced and clear way. It avoided the pitfalls of linking need with disablement on the ground that there was in fact no need. It had the evidence for that and it was entitled to reach that decision. The underlying point about disablement affecting mobility did not form part of that decision. That was the basis on which the Secretary of State decided the claim, and submitted the case to the tribunal. The tribunal expressly avoided endorsing that point and thereby also avoided the error in that approach.

17	The decision on the care component is less clearcut.  The tribunal accepted that Mr A was diagnosed as having dyslexia, and it accepted that he had difficulties with writing and reading. It made no comment on other related problems, such as numeracy problems.  It commented:

“We can accept this is a problem for him. It would not however be a problem that would necessarily occur on a daily basis nor, in our judgment, would it be as prolonged as indicated in the submission. For most individuals the necessity to write something down is not a daily occurrence unless they are in some form of occupation requiring the use of hand written material.  We do not accept therefore that attention is required in connection with either reading or writing for a significant portion of the day…”

18	For Mr A it was argued that needs for help would arise 3 – 4 times a day and that the evidence pointed to the lowest rate of the care component if not the middle rate.  I can see no basis of fact in the claim form or the other evidence to go beyond consideration of the lowest rate of the care component in this case.  As to the lowest rate, I have some sympathy with Mr Moore’s arguments. This is a question of fact, not assumption. Reading the paragraph quoted above in isolation, it might appear open to challenge as based on assumption not fact. But it has to be read with the findings elsewhere that Mr A does not work, and about how he tackled the claim form, and the acceptance as fact of the neuropsychologist’s report.  In particular, this includes the finding that:
	
“He did appear literate and numerate from the tests administered to the level at which 35 – 40 our of 100 individuals would be functioning.” 
 
The tribunal expressly considered this with Mr A’s own evidence.  The decision, taken as a whole, does in my view address the issue of the lowest rate of the care component adequately.  It cannot be said that it is perverse.  I agree that the statements about Mr A’s needs for help with reading and writing are more in the form of assertions of reasonable need because of the general problem than evidence of individual need. To some extent that is also true of both medical reports and the tribunal’s phraseology adopts a similar approach. But I am satisfied on reading the record as a whole that the tribunal adequately addressed the individual claim. 

19	Turning to the “cooking test”, I find the reference to CDLA 4295 2000 of little help. It is a decision on the facts of that case, and nothing more general.  In this case Mr A did not claim problems with preparing a cooked main meal. They were asserted at a later stage.  Mr A’s evidence was that “I can cook frozen food. I can’t cook fresh food. “ He explained that he would have difficulty in bringing separate ingredients of food together. The tribunal expressly rejected that evidence and stated why.  Again, I consider that adequately handled by the tribunal. Subsequently the issue of safety in cooking was added. But I do not see either evidence or assertions about safety in the submissions to, or evidence considered by, the tribunal such that the matter was in issue before it. It cannot therefore be criticised for not having dealt with it.

Dyslexia, function and disablement

20	That is sufficient to deal with the appeal. I do not therefore need to deal with other issues raised. However, both parties gave evidence about, and addressed, wider issues about dyslexia and disability living allowance.  This arose from the tribunal’s parting comment that:

“we do not accept that the functions of reading and writing are bodily functions.”  

That is neither part of the tribunal decision nor necessary to it. Indeed, the tribunal took the pragmatic approach of assuming the opposite in the decision it took.  As the point was a ground of appeal and addressed fully before me, I add that I agree with Mr Moore that the tribunal erred in so far as it made this statement as a statement of law. As the Commissioner said in CDLA 1420 2004:

“If a person with dyslexia reasonably requires assistance from another person to read labels of instructions on tins, packets, etc when shopping or cooking, it seems to me that that is attention in connection with the bodily function of seeing. It seems to me that bodily function includes not just making out the shapes of letters or words, but also making sense of what those shapes signify. It does not matter that “communication” is an activity, not a bodily function (see Commissioner’s decision R(DLA) 3/03) …” 

And in CDLA 2680 2001 the Commissioner agreed with both parties that a tribunal that found as a statement of law that dyslexia generally was neither a physical disability nor a mental disability was wrong in law. 

21	 The general comments of the clinical psychologist in this case, Dr Dimitra Hartas of the Leicester Dyslexia Institute, and a member of the British Psychological Society, give a factual basis to the views of those Commissioners. She states:

“Dyslexia is a specific learning difficulty that poses obstacles in learning, particularly reading, spelling and writing. Individuals with dyslexia often experience difficulties with short-term memory, ie, memorising bits of information such as numbers or spelling patterns and rules, for as long as it is required up until they are stored away; phonological skills (understanding and processing the sounds of language) important for deciphering words and reading; and processing speed in terms of processing visual or auditory information during copying, writing and organising information in their mind.

Research in the field of dyslexia refers to early indicators and characteristics of dyslexia, not causes per se. Dyslexia tends to co-exist with other conditions such as Attention Deficit Hyperactivity Disorder, or language difficulties. However, we do not know what causes which condition.”

22	I take the general evidence given by Dr Pamela Ford, MB, BChir (Camb), as also supporting those approaches on a factual basis. She cites the definition of the British Dyslexia Association:

“A complex neurological condition which is constitutional in origin. The symptoms may affect various areas of learning and function and may be described as a special difficulty in reading, spelling and written language. One or more of these areas may be affected: numeracy, notational skills (music), motor function and organisational skills. However it is particularly related to mastering written language, although oral language may be affected to some degree.”

She also quotes from the Shorter Oxford Textbook of Psychiatry:

“the term dyslexia is in common use and is useful in conveying to laymen the message that the reading problems are not due to laziness or stupidity and that the child needs help”. 

She notes that dyslexia as such is not classified in the standard Diagnostic and Statistical Manual of Mental Disorders but that Learning Disorder and a number of sub-classifications are included. These include Reading Disorder, Disorder of Written Expression, and Mathematics Disorder. She advises that there is a similar categorisation in ICD-10, the current International Classification of Disease.

23	It is necessary to look at the specific disablements, if any, described under the general label of dyslexia, or associated with it, in a particular case.  Only then can it be decided whether bodily functions are affected.  And it is necessary to look at the actual needs said to arise from the disablements. The label “dyslexia” by itself does not entitle a claimant to say she or he is so disabled as to reasonably require help such that the allowance is payable. Equally, it does not enable a tribunal simply to say that a claimant is not entitled.  The tribunal must look at the disablements reflected by the use of that label and at the actual reasonable needs of the claimant because of those disablements.  In this case that is what the tribunal did, even if it said the opposite.  For that reason, I do not consider that the errors in the tribunal’s reasoning were such as to undermine the adequacy of its decision on the evidence. I therefore dismiss the appeal. 

								David Williams
								Commissioner

								31 January 2006
[Signed on the original on the date shown]