[2006] UKSSCSC CSDLA_858_2005 (16 February 2006)

THE SOCIAL SECURITY COMMISSIONERS

Commissioner’s Case No:  CSDLA/858/05

SOCIAL SECURITY ACT 1998

APPEAL FROM THE APPEAL TRIBUNAL UPON A QUESTION OF LAW

COMMISSIONER:  L T PARKER

Appellant:                     			          Respondent:  Secretary of State

Tribunal:  Edinburgh			     Tribunal Case No:  

DECISION OF SOCIAL SECURITY COMMISSIONER

Decision

1.	I find no error of law in the decision of the tribunal sitting in Edinburgh on 14 September 2005 (the tribunal).  The tribunal’s decision therefore stands.

2.	Leave to appeal was given by a district chairman.  The Secretary of State supports the appeal only with respect to the tribunal’s reasoning regarding falls, which the Secretary of State has submitted is inadequate; I disagree with the Secretary of State even to the extent of that limited support.

Background

3.	The appellant, born 17 December 1954, made a new claim for disability living allowance (DLA) on 23 March 2005.  Following a report from the general practitioner (GP) which is undated, a decision maker (DM) on behalf of the Secretary of State on 11 April 2005 made a wholly adverse determination on entitlement; this is the decision under appeal to the tribunal.  There is a further GP’s report in the papers dated 12 July 2005 and a report from an examining medical practitioner (EMP) dated 25 July 2005.

4.	Although in her claim form, the appellant described falling or stumbling (my emphasis) two or three times per week, she told the EMP (as recorded in a statement which she signed as having been read back to her), that she had fallen three to four times, and evidence to the same effect as to the EMP was given to the tribunal.  The EMP, having concluded that the diagnosis of the main condition causing disability was “generalised arthralgia, osteo arthritis of lumbar spine, overweight”, made clinical findings of slight or full function of all limbs, but then on observation of her getting up from a supine position on the bed recorded that this was done “very slowly with discomfort and some difficulty”.

5.	The EMP considered that the appellant would be able walk 100 metres very slowly but with normal balance and gait before the onset of severe discomfort; but he opined she could only take a bath or shower or use a cooker with someone’s help and would need grab handles in bed, a special chair and a raised toilet seat.  It was, however, the EMP’s view that she was safely mobile throughout her own home and that there was no significant risk of falling.

The tribunal decision

6.	The crux of the tribunal’s reasoning in refusing the appeal was the following:

“The tribunal did not consider that the appellant was at significant risk of falling.  Although it accepted that she had experienced a number of falls, these were not frequent.  The tribunal considered the EMP’s opinion of the appellant’s walking ability to be a reasonable assessment based on clinical findings and observations.  On that basis the tribunal was unable to conclude that the appellant was virtually unable to walk. ...

The written submission from the appellant drew attention to the opinion of the EMP… .  The EMP considered that the appellant needed help to look after herself at home.  She needed help to manage her personal care needs and was unable to manage safely nor independently on a consistent basis.  The submission further drew attention to the fact that many of the appellant’s care needs were of a personal nature which could not presently be met by her son.  The issue was, however, whether such assistance was reasonably required.

The appellant advised the EMP that she could cook a simple meal provided that she did not have to stand too long or bend down to the lower oven on the cooker.  On that basis the tribunal considered that the appellant did not satisfy the criteria for the lower (sic) rate care component of DLA based on the cooked main meal test.  In reaching that conclusion the tribunal rejected the submission that the appellant required encouragement to cook.  The appellant did not give evidence to that effect.  In her claim she stated that she required encouragement to eat although the tribunal found that inconsistent with the EMP’s observations that the appellant was markedly overweight. ...

Given the EMP’s findings of only slight impairment of limb function and that the appellant was safely able to undertake a wide range of care needs without assistance, it had difficulty in understanding the EMP’s opinion that the appellant was unable to safely care for herself at home on a consistent basis.

The tribunal noted that the appellant on her own evidence was able to wash herself but accepted that she did require assistance in order to take a bath.  It also accepted that assistance was reasonably required when the appellant was getting up and dressed.  However it was not satisfied that assistance required by the appellant in relation to these needs was sufficient to satisfy the criteria for an award of DLA at either the lowest rate or the middle rate in respect of the day conditions.  In the opinion of the EMP the appellant did not require supervision.”

Appeal to the Commissioner

7.	The representative who appeared on the appellant’s behalf at the tribunal hearing, and who provided two written submissions for its benefit (the representative), has now appealed on the appellant’s behalf to the Commissioner.

8.	The application founds on the contention of inadequate reasons by the tribunal, specifically:

“In the section relating to care needs, there are not enough findings of fact to be able to give reasons for the tribunal’s conclusions.  It does not give findings of fact on the care needs and how they relate to a significant portion of the day.  There is no reasoning given for the view the tribunal  ‘had difficulty understanding the EMP’s opinion that the appellant was unable to safely care for herself”.  In the claim form, the client clearly has stated that she has care needs.  The reason for rejecting the appellant’s stated care requirements and the EMP’s view that she has care needs has not been adequately dealt with in the written reasons.

The tribunal has failed to give full reasons for ‘considering that the appellant was not at significant risk of falling’ in relation to middle rate care.  It has not given reasons for not accepting the appellant’s evidence in the claim form.

In terms of the EMP report, there are inadequate reasons for accepting the EMP report when applying to the mobility, while accepting (sic) it for the care component.  When referring to the appellant’s walking ability the tribunal accepted that the EMP’s assessment was based on ‘clinical findings and observations’ but does not apply this same reasoning to the EMP’s view that the appellant was ‘unable to safely care for herself at home on a consistent basis’.”

9.	The Secretary of State’s support is expressed thus:

“Regarding falls, the tribunal has found the claimant was not at significant risk of falling.  Although they accepted the claimant had experienced a number of falls, these were not frequent.

The tribunal have not stated why they have not accepted the claimant’s evidence [in the claim form] regarding falls.  Also the evidence [in the EMP’s report] appears to suggest that if the claimant had a fall, she would need assistance to get up again, as the EMP has stated the claimant has a special chair, and needs ‘grab handles’ to turn in bed, therefore if she cannot rise from bed or from a normal chair, it would be not be (sic) unreasonable to state the claimant would need assistance after a fall to get back up again.”

My conclusion and reasons

Adequacy of facts and reasons

10.	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.”

11.	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.

12.	The only assistance accepted as reasonably required by the tribunal is with bathing and with getting up and dressing.  Matters of judgement on the factual application of a statutory test are exclusively for the tribunal unless its exercise of judgement is such that no reasonable tribunal could make on the basis of the facts found and having regard to the evidence.  That has in no way been demonstrated in the present case and therefore its conclusion cannot be disturbed.  The onus of proof on all matters in a new claim lies on the appellant and, having regard to its findings on the limited care reasonably required, the tribunal’s conclusion that this did not satisfy the criteria for the lowest rate care component of DLA is not demonstrated as perverse and no further explanation of why it decided the case that way is required.  Similarly, the tribunal could legitimately compare the information given in the claim form about her difficulties with her very different evidence later given to the EMP and to itself, and then consider that such onus had been discharged only in respect to those facts accepted on the basis of the latter without the need for further comment.

13.	Furthermore, the fourth paragraph of the tribunal’s reasons as set out above in my paragraph 6 sufficiently explains why the tribunal rejected the EMP’s opinion that the appellant had certain care needs.  Whether or not a person has reasonable requirements for assistance involves drawing inferences from primary findings.  The tribunal with its expert membership, including one experienced in the needs of the disabled and a medical member, is as well placed as the EMP to draw such inferences.  Having regard to the EMP’s clinical findings and the inferences which the EMP in the main drew from those, the tribunal regarded his opinion, that the appellant could not safely carry out a limited range of tasks though she was able to do everything else, as inconsistent; therefore the tribunal was not prepared to accept the whole opinion.  The inferences to be drawn from evidence are solely a matter for the adjudicating authority unless its conclusion is one which no reasonable tribunal could have reached.  Having carefully considered all  the evidence I am not of the view that the tribunal so acted, having regard to the clinical findings of the EMP which it fully accepted, in taking a divergent view (in some respects only) of the incapacities to which those findings could give rise.

14.	This also explains why there is no error of law in the tribunal accepting the EMP’s assessment with respect to mobility but not with respect to care.  The tribunal took the view, as so entitled to do, because it was a rational albeit not an inevitable view, that while those same clinical findings justified the opinion the EMP drew from them with respect to her walking ability, the same could not be said of the EMP’s opinion with respect to care needs.

15.	I agree with the rationale set out by Commissioner Howell QC in paragraph 11 of CIB/297/2005:

“The second point [made on the appellant’s behalf] is that having rejected part of the claimant’s evidence, it was inconsistent of the tribunal to use what he said against him on another point.  There is of course no conceivable error of law in a tribunal of fact finding that a witness is telling the truth in one part of his evidence but exaggerating in another, and this tribunal’s reasons for doing so are in my judgment clearly explained and unchallengeable”.

Similarly, there is no conceivable error of law in a tribunal accepting most of a report but not all of it, unless there is no logical basis for such discrimination.

A reasonable requirement for continual supervision in order to avoid substantial danger

16.	It is important to stress that a claimant must establish all these elements.  Moreover, what is in issue is not a reasonable requirement for continual supervision in order to prevent an unquantified risk of substantial danger.  Such a formulation grossly minimises the nature of what is required by the threat.  It is the very risk which must itself constitute substantial danger; categorising ‘a risk of substantial danger’ as sufficient lets in dangers which are too remote.

17.	Whether the claimant faces substantial danger involves evaluating two factors.  Both the gravity of the harm, if it happens, and the degree of likelihood of its doing so, are relevant in determining whether the situation is one of substantial danger.  The greater is the seriousness of the consequences should they materialise (for example, death), the less has to be the probability that such a catastrophe will occur, before it is appropriate to label what the claimant faces as substantial danger.  Conversely, if the potential consequences are less extreme, a greater likelihood of their occurrence is necessary before the risk can be categorised as amounting to substantial danger.  

18.	Moreover, without first establishing a reasonable requirement for ‘continual supervision throughout the day’ in order to avoid substantial danger to herself or others, no entitlement to care component through the supervision route could be made out.  At no stage has it been suggested that the appellant ever suffered an injury in a fall.  The appellant told the tribunal that she had experienced three to four falls in total and, as the tribunal expressly notes in its narration of the evidence, she advised the EMP of the same number whereas in the claim she said two or three stumbles or falls each week.  I am at a loss to understand why the Secretary of State suggests that the tribunal  must, in effect, set out why they have not accepted the appellant’s evidence on falls in the claim form, as it seems to me wholly obvious; quite apart from the fact that such information was ambiguous in its terms, proof on a balance of probabilities was clearly not demonstrated when she subsequently stated an incidence of falling quite to the contrary.  Any further explanation is otiose and to expect it seems quite ludicrous; requiring a tribunal to address a claimant’s consistent evidence is a different matter entirely.

19.	How often she falls is clearly relevant to how often she might need someone to assist her to get up again.  But this appellant is not elderly or particularly frail; there is no indication from the evidence that any harm would come to her if she was obliged to lie unaided for a while, such that she has a reasonable requirement for someone to be on hand on a continual basis to provide assistance immediately.  In determining whether continual supervision is reasonably required, what is reasonable has to be looked at both from the standpoint of the claimant and also that of the helper.  The EMP did not suggest that the appellant could not get up from a supine position without aid but only that she did so very slowly, with discomfort and some difficulty.  Having regard to the scarcity of accepted falls, it would be entirely rational to judge that, despite the appellant’s discomfort and difficulty in getting herself up again by herself, it is not reasonable to require an assistant to be on hand on a continual basis to obviate her having to do that.  Moreover, having regard to three to four accepted falls, the tribunal was not further obliged to go on and explain why it did not consider such a frequency amounted to a “significant risk of falling”; it does not have to give reasons for reasons or the task would go on for ever.  

Summary

20.	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.  It made adequate findings of fact, having regard to the totality of the evidence before it, and sufficiently explained why it took the view of the evidence it did.  There was no irrational assessment of any evidence before it, no indication of any unfair hearing nor of a major procedural breach. 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 such evidence, because it is clear from the tribunal’s overall reasoning that it has taken that information into consideration) and took no account of irrelevant factors.  In no respect was its decision perverse. 

(Signed)
L T PARKER
Commissioner
Date:  16 February 2006