[2007] UKSSCSC CDLA_3585_2006 (18 May 2007)

CDLA/3585/2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Introduction

1.	This is an appeal by the claimant against the decision of the Newcastle Disability Living Allowance Appeal Tribunal given on 18th January 2006.  By its decision the tribunal dismissed the claimant’s appeal from the decision of the decision maker made on 18th July 2005 that the claimant was not entitled to either component of disability living allowance from and including 12th July 2005.

2.	The claimant was given leave to bring this appeal by Mr. Commssioner Pacey on 30th October 2006.  (The application for leave was made late, but time was extended by the chairman.)  In giving leave, the Commissioner stated that no point of law was disclosed in the application, but it might be questionable whether the tribunal had provided sufficient reasons for their decision.  It was not apparent that they had addressed supervision needs.

3.	By a submission dated 12th December 2006 the Secretary of State accepted the reasons for which leave to appeal was given, but argued that the tribunal had made the only decision which a tribunal, properly instructed as to the law, could have made.  The claimant has had the opportunity to respond to that submission, but has not done so, in spite of being sent a reminder.  The claimant has not been represented on his appeal at any time. 

4.	For the reasons given below I have concluded that the tribunal did fail to give adequate reasons for its decision and so erred in law.  Its decision must therefore be set aside.  I have power, however, under section 14(8)(a) of the Social Security Act 1998 to substitute the decision which I think the tribunal ought to have given.  My further conclusion is that I ought to substitute a decision to the same effect as the one the tribunal gave.  It follows that although the appeal succeeds, no award of disability living allowance is made.

The facts

5.	The claimant first claimed disability living allowance by a claim pack dated 19th August 2004, following a request made on 12th July 2004.  It appears that he had relatively recently moved to Newcastle and so was meeting new medical practitioners.  He explained that he suffered from bipolar disorder and anxiety, that he had a problem with grinding his teeth while asleep and he had problems with his right leg arising from the fact that it was shorter than his left leg as a result of an accident in 1989.  He listed his medication but stated that the psychiatrist might be changing it.

6.	It appeared from the claim pack that the claimant had a heel raise in his right shoe to correct the problem with his leg and although he still had some difficulties with it, he was able to get out and about and to go into town to do shopping.  He found it helpful to have a friend with him, but generally there was no one and he managed on his own, although it caused him anxiety.

7.	As respects care needs, he said he had no problems moving about indoors, getting in and out of bed, coping with his toilet needs, dressing or undressing, cooking and eating and taking his medication.  He suffered leg spasms at night in addition to grinding his teeth, but the only help he had was a gum shield.  As I understand it, physically he had no problem washing, bathing and looking after his appearance, but he was not motivated to do so because he had no one to impress.  He said he needed someone to keep an eye on him (I think because he might get confused or wander off or hurt himself or someone else or behave destructively) but in practice he did not have anyone.  He spoke of tingling in his arms and aches in his neck and eyes but did not refer to fits, seizures or altered consciousness, although he did say he had mind blanks sometimes.  He had difficulty communicating both in his high state and in his low state, but did not mention any help in that respect.  He was, however, under the care of a community psychiatric nurse and was arranging to see another psychiatrist.

8.	It is clear that the Department of Work and Pensions had some difficulty in obtaining medical evidence about the claimant owing to his recent move to the area.  His new psychiatrist nevertheless did his best to complete the relevant form with the assistance of previous records.  He diagnosed bipolar disorder, mentioned rapid mood swings and said that the claimant needed supervision and frequent assessment.  He had self-harmed in the past and appeared to be vulnerable to neglecting his hygiene and nutrition, although he had appeared well kempt when seen.

9.	On the basis of that information it was decided on 18th October 2004 that the claimant was not entitled to the mobility component of disability living allowance because he was not significantly limited in his walking ability.  An award of the care component at the middle rate was made, but was limited to the period 12th July 2004 to 11th July 2005 on the ground that treatment might help.  The ground of the award was that the claimant was so severely disabled mentally that he required frequent attention throughout the day in connection with his bodily functions:  see section 72(1)(b) of the Social Security Contributions and Benefits Act 1992.  

10.	By a further claim pack dated 21st February 2005 the claimant made a renewal claim in advance of the expiration of his existing award on 11th July 2005.  The information he gave about himself was very similar to that given previously.  There had been some changes in his medication which he specified.  He said that he felt dirty even after taking a bath and did not care about clothes, but referred to having bought aromatherapy bath salts.  The implication was that he did bathe.  By contrast, he said he slept in his clothes.  He obviously felt that his medication was not helping as much as he might have hoped, but said, “Before medication did not sleep at night.  And went mad.” (p.93).  He also referred to having harmed himself “in the past when I was really bad” (p.94).  He said he needed someone to keep an eye on him but had no one.  He added, “I’m on mood stabilisers so I can’t say.”  He spoke of delusions of grandeur and distorted thinking “in the past” (p.96).  It was clear that he was discussing his condition with his G.P. and others and looking for ways to improve his mental health.  

11.	Thereafter the claimant telephoned the Department on several occasions to update them on his progress with his medical advisers.  He was referred to stress control classes, but when he attended it appeared that that would not help.  His medication underwent some alteration and he also had a change to his heel raise.  A report dated 13th May 2005 was obtained from his G.P. which stated that he had moderate anxiety disorder but that the diagnosis of bipolar disorder was not confirmed.  The G.P. was asked about the claimant’s ability to care for himself and to get around, but answered “not applicable”.  Shortly thereafter the claimant wrote to the Department stating that he had changed his G.P. and his medication and had been told by his dentist that his headaches and shoulder pain resulted from teeth grinding.

12.	The Department then referred the file for medical advice.  On 13th July 2005 the medical adviser said that the leg problem appeared to be correctable and should not significantly restrict mobility.  The claimant had psychological problems but the medical adviser took the G.P.’s response to the questions about his ability to care to indicate that his function was normal and he was capable of self-care.

13.	In that state of the evidence, the decision maker considered the renewal claim and concluded, as I have already said, that the claimant was not entitled to either component of disability living allowance from 12th July 2005.

The appeal to the tribunal

14.	The claimant appealed against that decision by an appeal form received on 3rd August 2006.  He said that in his claim form he had put down his true feelings as he did previously and that nothing had changed in his condition except that he was on different pills, which he had told the Department about.  In my view it is clear that he did not understand why he had been entitled to benefit previously and was no longer so entitled.  Together with the appeal form he sent the Department a copy of the consultant’s letter about the stress control clinic referral and a printout from his medical records prior to his move to Newcastle.  Those records support the view that the claimant suffers from bipolar disorder, for which he has been receiving medication since 2003, but otherwise do not appear to add anything of significance.

15.	Following the appeal the claim was reconsidered on 23rd August 2005, but the decision was not revised.  The appeal continued.

16.	The claimant attended the hearing of his appeal on 18th January 2006 and gave oral evidence.  In the course of his evidence he said that he could walk a mile.  He did his own shopping, although he hated walking through the town.  He made sandwiches and soup and could boil an egg.  He was always on his own and was happy with his own company.  He slept in his clothes.  He could do everything for himself except when he shut down, which he did for short periods during the day.

17.	As I have already said, the appeal was dismissed.  The claimant applied for a statement of reasons, which was issued on 23rd June 2006.  The material part of the statement for present purposes is as follows:

“6.	The appellant is not entitled to the Mobility Component of Disability Living Allowance.  On his own evidence he could walk for a mile before his legs started to twitch.  He might be uncomfortable on walking through the town but he can do so and can walk in unfamiliar places without the guidance or supervision of another person.

7.	The appellant is not entitled to the Care Component of Disability Living Allowance.  On his own evidence he can do everything for himself including the preparation and cooking of a main meal for himself except when he “shuts down” but he only does that for short periods during the day.  He has no care needs at night.  He has irregular sleep but that does not give rise to any care needs at night.”

The appeal to the Commissioners

18.	In his grounds of appeal (p.142) the claimant repeated that he had had disability living allowance for about a year and he did not know why his claim was refused the second time round.  He then gave some up-to-date information about his treatment and concluded by saying that his biggest anxiety was not receiving treatment that worked.  He made a similar point about not understanding the grounds for refusal in a letter to the Commissioners dated 24th October 2006.

19.	It is a well-established principle that a tribunal is not bound by the fact that a claim by a claimant has been successful in the past to reach the same conclusion on a new claim, but that if a different decision is reached the reasons given must be sufficient to enable the claimant to understand why the new decision is different from the old one.  Clearly the claimant in this case in fact does not understand why the new decision is different, and one can see why.  The reasons for the decision which I have quoted above make no reference to the previous decision.  Inferences may possibly be drawn from the way the tribunal summarised the evidence in the earlier paragraphs of its statement, but to leave it to the claimant to speculate in that way does not amount to giving adequate reasons.  I therefore accept the submission that the tribunal erred in law in that respect.

20.	It follows that the tribunal’s decision must be set aside.  The next question is whether I should refer the matter back to another tribunal for a further hearing or whether I am able to substitute my own decision.  It is important to be clear at this point that, as far as appears from the papers before me, nobody has challenged the truthfulness of the evidence the claimant has given.  It seems to have been accepted at all stages, and I proceed on that basis.  What I have to consider is whether, in the light of that evidence, the claimant satisfies the statutory conditions of entitlement.

21.	The claimant has never had an award of the mobility component of disability living allowance.  His concern is with the withdrawal of the care component.  I agree with the tribunal’s decision on the issue of the mobility component, having regard to what is said in paragraph 6 of the statement of reasons, and I need say no more about it.

22.	Turning to the care component, one finds the statutory conditions set out in section 72 of the Social Security Contributions and Benefits Act 1992.  For present purposes, I can set them out as follows:

Highest rate

The claimant:

(a)	requires “frequent attention throughout the day in connection with his bodily functions” or “continual supervision throughout the day in order to avoid substantial danger to himself or others”; and
(b)	requires at night “prolonged or repeated attention in connection with his bodily functions” or that another person should “be awake for a prolonged period or at frequent intervals for the purpose of watching over him” so as to “avoid substantial danger to himself or others”.

Middle rate

The claimant satisfies either (a) or (b) above but not both.

Lowest rate

The claimant:

(a)	requires in connection with his bodily functions “attention from another person for a significant portion of the day”; or

(b)	cannot prepare a cooked main meal for himself if he has the ingredients.

23.	What the decision maker and the tribunal had to ask themselves was whether, at the date when the decision maker made the decision (that is, 18th July 2005) those conditions were satisfied.  For the sake of completeness, I should add that an award can only be made if the claimant has already satisfied one of the conditions for three months and is likely to continue to do so for a further six months.

24.	From the evidence before me I see no basis for a decision that the claimant needed attention of any length at all in connection with his bodily functions.  He told the tribunal he could do everything for himself except during the short periods when he shut down.  There is no suggestion that he needed attention in connection with his bodily functions during those periods.  Although he did not give evidence of preparing a cooked main meal in fact, there appears to be no physical reason why he could not do so and he did give evidence of preparing meals of some description.  It follows that the claimant did not satisfy either of the lowest rate conditions or any of the other conditions in so far as they refer to a requirement for attention in connection with bodily functions.

25.	I also see no basis for a decision that the claimant requires someone to be awake for a prolonged period or at frequent intervals at night so as to avoid substantial danger.  The claimant mentioned that his sleep patterns were odd, but there is no suggestion that he needs watching over at night.

26.	This leaves the question whether the claimant, at the relevant time, needed continual supervision throughout the day to avoid substantial danger to himself or others.  This, as it seems to me, is the condition which Mr. Commissioner Pacey thought deserved further consideration.  By 18th July 2005 the claimant’s episode of self-harm was in the past.  As I have mentioned above in paragraph 10, the claim pack referred to the past in several respects.  There might well have been matters, for example in relation to his sleeping in his clothes, in relation to which the claimant would have been helped by encouragement from another person, although clearly that could be done very quickly.  The facts, however, were that since before the original claim was made the claimant had been on his own without continual supervision throughout the day and there was no evidence of harm to himself or anyone else.  On that material I take the view that there was no substantial danger to the claimant or others which required to be avoided by continual supervision.

27.	This is not to say that the claimant does not suffer from mental health problems.  I entirely accept that he does.  My conclusion is simply that at the relevant time they did not bring him within the statutory conditions.

28.	I realise that the above reasons do not directly address the question why a benefit which the claimant had been receiving was removed.  The difficulty which I find, and which I suspect the tribunal found, is that it is not very clear why the award was made in the first place.  The bodily functions with which the claimant was found to have required frequent attention throughout the day have not been specified.  I note, however, the following:

(1)	in 2004 the psychiatrist said that the claimant suffered from bipolar disorder, whereas in 2005 the G.P. said that that diagnosis had not been confirmed and that the claimant suffered from an anxiety disorder which might be described as moderate;

(2)	in 2004 the psychiatrist said that the claimant appeared to be vulnerable to neglecting his hygiene and nutrition.  In 2005 the G.P. expressed the view (as the medical adviser, I think rightly, understood it) that the claimant was able to care for himself.  This was confirmed by the claimant in his evidence to the tribunal and finds indirect support in his reference to buying bath salts;

(3)	in 2004 the psychiatrist said that the claimant needed supervision and frequent assessments, whereas in 2005 the G.P. expressed the view that he had an insight and awareness of danger;

(4)	in 2004 the claimant was new to the area and to his local medical advisers and his history of self-harm was relatively recent.  By 2005 he had been in the area for some time and had in practice coped with his situation without supervision, as discussed above.

It therefore appears to me that the picture of the claimant’s condition which was before the first decision maker was a rather more gloomy one than that which emerged following the lapse of time before the second decision was taken.  The award was made for a relatively short period on the ground that treatment might help, and it appears that treatment at least stabilised the claimant’s condition.

29.	The matters I have identified do point to some differences between the circumstances in 2004 and 2005, although the claimant himself feels there has been no change.  I should make clear, however, that I am not persuaded that even on the evidence before the first decision maker that decision was rightly made.  In particular, if and in so far as reliance may have been placed on the reference to supervision and frequent assessment in the psychiatrist’s report, I think it is very unlikely that the psychiatrist had in mind the sort of supervision contemplated by section 72.  I suspect that he meant supervision by psychiatric services consistent with frequent assessment by those services.  The report does not point to the sort of urgency which would naturally be associated with a need for attention frequently throughout the day, or even continual supervision throughout the day to avoid substantial danger.

30.	I therefore summarise my reasons for the non-renewal of an existing award as follows:

(1)	in my view the evidence simply does not show the existence of any of the statutory conditions at the relevant time;

(2)	there is some material suggesting either an improvement in the claimant’s condition by 2005, or at least greater information clarifying his condition and showing there was no need for frequent attention or continual supervision;

(3)	given the present evidence, I should if necessary find that the previous decision was wrong, although that of course was no fault of the claimant’s.    

My decision

31.	For those reasons I allow the claimant’s appeal and set aside the tribunal’s decision.  I substitute my own decision to the same effect, namely, that the claimant is not entitled to either component of disability living allowance from and including 12th July 2005.

	(signed on the original)	 E. Ovey
			Deputy Commissioner
								18th May 2007