[2007] UKSSCSC CDLA_3899_2006 (17 July 2007) 

PLH                                                                      Commissioner's File:  CDLA 3899/06

	SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

[ORAL HEARING]
     1.     	This appeal by the claimant must be dismissed, as in my judgment there was no error of law in the decision of the Taunton appeal tribunal sitting on 7 August 2006, when the claimant was held to be entitled to disability living allowance from 23 July 2004 to 8 November 2005 at the lower rate for mobility and the lowest rate for care but not to any higher rate of either component of the benefit for that period.  
     2.     	I held an oral hearing of this appeal which had been directed by the Commissioner who gave leave for it to be pursued.  Mr J Cook of the Mendip CAB appeared for the claimant (having also represented him at the proceedings below) and Mr H Hendron of the solicitor’s office, Department for Work and Pensions, appeared for the Secretary of State.  
     3.     	The claimant is a man now aged 51 who according to the medical evidence suffers from Parkinson’s disease and some mental health problems.  After an initial award of disability living allowance to him at the higher rate for mobility and middle rate for care limited to a period of 12 months only, which ran out on 22 July 2004, he made an application for his award to be renewed. On this occasion he was given a medical examination, carried out by an examining medical practitioner on behalf of the department on 19 August 2004.  This showed that despite his Parkinson’s disease and some anxiety he was physically able to walk reasonably well, but would have problems navigating outdoors alone because of his anxiety; and might need help with such things as shaving, cutting up food, peeling vegetables or using a cooker.  Apart from that he could cope with most activities of daily living unaided and was sufficiently mentally competent not to require constant supervision.  On the basis of that medical evidence a departmental decision was given on 27 August 2004 renewing his award at the lowest rate for care only, for a three year period from 23 July 2004 to 22 July 2008 inclusive.  
     4.     	It was this decision on entitlement that, in a modified form, came before the tribunal on 7 August 2006, on the claimant’s appeal against it seeking a higher award of benefit from 23 July 2004 onwards.  The effect of that decision had by that time been modified by a further departmental decision given on 15 December 2005 on a later application by the claimant for his rate of benefit to be increased by reason of a change of circumstances, namely a deterioration in his condition since the date on which the reduced award had been made: that is, since 27 August 2004.  The effect of that further decision was to increase the claimant’s benefit by including the lower rate for mobility as well as the lowest rate of care from 9 November 2005 (the date of his application) and for the remainder of the period until 22 July 2008, superseding the award made on 27 August 2004 and limiting its effect to the period 23 July 2004 to 8 November 2005.  
     5.     	As well as maintaining his appeal against the decision of 27 August 2004 as still effective for that reduced period, the claimant made a further appeal to the tribunal against the superseding award of 15 December 2005, on the ground that his benefit for the remaining period from 9 November 2005 onwards ought to have been increased still further.  Both these appeals came before the same tribunal on 7 August 2006 and were dealt with consecutively, though much of the evidence was of course relevant to the proper determination of his entitlement for both periods.  
     6.     	The tribunal’s two decisions, contained in decision notices issued to the parties on the day of the hearing and amplified in two separate and comprehensive statements of reasons issued on 28 September 2006, were to increase the rates of benefit awarded by each of the departmental decisions.  As regards the earlier period from 23 July 2004 to 8 November 2005 the tribunal found on the basis of the evidence of the claimant’s condition as at the date of the decision under appeal, 27 August 2004, that he met the statutory conditions for lower rate mobility component as well as lowest rate care, and increased the amount of his award accordingly.  
     7.     	As regards the later period from 9 November 2005 onwards the tribunal found on the basis of the evidence as to his condition on 15 December 2005, the date of the relevant decision in the second appeal, that there had been a material deterioration in the claimant’s physical walking ability since August 2004 such that by November 2005 he was virtually unable to walk, and accordingly increased his award for mobility to the higher rate.  As regards his attention and supervision needs the tribunal was not persuaded by the factual evidence that there had been any material change such as to justify an increase from the lowest rate of benefit, or that the claimant met the statutory criteria for requiring either frequent attention in connection with his bodily functions throughout the day, or continual supervision throughout the day in order to avoid substantial danger to himself or others.  Accordingly the existing award of the lowest rate care component was confirmed by the tribunal as remaining correct for the continuing period from 9 November 2005 to 22 July 2008.
     8.     	The present appeal relates only to the tribunal’s decision on the first appeal as regards the closed period from 23 July 2004 to 8 November 2005 inclusive, given on the basis of circumstances obtaining at the date of the decision under appeal, that is 27 August 2004.  There is no appeal by the claimant against the decision on the second appeal, and Mr Cook on his behalf did not seek to challenge the tribunal’s findings, reasoning, or conclusions as regards the later and longer period from 9 November 2005 to 22 July 2008 in any way.  
     9.     	I have however been helpfully provided for the purposes of this appeal with a copy of the tribunal appeal papers and its decision notice and statement of reasons on the second appeal; and reference was made to a substantial part of the evidence (and in particular numerous psychiatric reports) which, although filed among those papers, was in fact common to both appeals and was relevant to and referred to by the tribunal in relation to its decision on the earlier period which is the one challenged before me.  
     10.     	The grounds on which Mr Cook seeks to mount that challenge were set out in his written notice of application dated 16 October 2006 on which leave to appeal was granted (pages 129 to 131), and helpfully amplified in further written submissions made to me before the hearing and orally at the hearing itself.   For present purposes they may be summarised under two main heads.  First, that the tribunal misdirected itself, acted on inadequate evidence and was guilty of a breach of natural justice against the claimant in referring in its statement of reasons to certain actions of his which had been the subject of criminal charges against him, and in wrongly making an assumption of his guilt in referring to an ability to carry out such actions as inconsistent with his being “virtually unable to walk” as he was claiming: see paragraph 15 of the statement of reasons at page 126.  Secondly, the tribunal had wrongly failed to take account of the psychiatric evidence presented to it of the claimant’s mental state during the course of 2004, which had shown him to be unfit to plead to the criminal charges against him (as was later accepted in the criminal proceedings) and was, in Mr Cook’s submission, inconsistent with any reasonable tribunal awarding him less than the middle rate of care component; as needing either frequent attention throughout the day in connection with his bodily functions, or continual supervision to avoid substantial danger, or both.  As subsidiary points under this head Mr Cook submitted that the tribunal had misdirected itself by misstating the psychiatric evidence on whether the claimant’s apparent memory loss was due to “malingering“; by failing to take account of a material change of circumstances when the claimant took a drug overdose in December 2003; and basing its findings on the “wrong period of time” by considering the claimant’s state of mind at the time of the alleged offences rather than after he took the overdose.
     11.     	Dealing first with the criminal charges and the events which formed an inevitable background to the tribunal’s consideration of the claimant’s physical and mental disabilities as at 27 August 2004, it appears to me that despite the arguments advanced by Mr Cook (and despite the observations of the Commissioner on granting leave to appeal, when inevitably the matter cannot be gone into in as much detail as when the appeal comes to be fully considered) the treatment of these matters by the tribunal was accurate, objective and proper.  
     12.     	The first two paragraphs of the tribunal’s statement of the facts recorded that:
“1.  The appellant is a man, now aged 50, who suffers from Parkinson’s disease, memory loss and depression, he has a history of drug and alcohol problems.  …
2.  Following his participation in a crime in December 2003 and his failure to answer bail in January 2004, the appellant was taken into custody in HM Prison, Exeter on 06/07/04.  He was charged with grievous bodily harm, theft of a catering trailer and dangerous driving.  He took an overdose of drink and drugs, treated as a suicide attempt which led to a hospital admission in December 2003, after the commission of the crime.  Although he could initially recollect matters when interviewed by the police and doctors, he apparently suffered a progressive memory loss which prevents him from recalling his life prior to December 2003.  The experts do not agree whether the condition is organic, hysterical or malingering in nature.  They did agree he was unfit to plead.  He did not stand trial, in any event, as he was found unfit to plead, after psychiatric examinations at Exeter Prison.  A hospital order was made by the court, he was released from prison to Beech Court Hospital on 08/04/05, from there he was transferred to Phoenix House on 18/04/05 and discharged on 13/05/05.”
     13.     	None of that can properly be disputed.  The evidence before the tribunal (in particular a departmental note of the results of enquiries made on 13 June 2005 to the court concerned in the criminal proceedings) showed that the claimant had not been given any criminal sentence for the crime in which he had been involved, but had been made the subject of a supervision and treatment order.  The acts with which he was charged had consisted of attempting (with another man) to hitch up a trailer to a vehicle, then jumping into the vehicle and, despite the owner of the trailer attempting to stop him by hanging on to the steering wheel and ignition key through the open window, accelerating and driving the vehicle away, causing her multiple injuries.  As the claimant had been found unfit to plead to the consequent charges of theft, grievous bodily harm and dangerous driving the departmental note at page 84 is inaccurate in referring to him as having been “convicted”; but it is plain from the passage quoted in paragraph 12 above that this did not have any effect on the tribunal’s decision, which accurately records that the claimant did not stand trial and had been found unfit to plead.  
     14.     	Despite Mr Cook’s submission that it was inaccurate and unfair for the tribunal to have referred nevertheless to the claimant as having “participated in a crime”, that was actually a correct and proper summary of the position, on which no valid ground of dispute could have been raised by the claimant.  The making of a supervision and treatment order in criminal proceedings following a finding that an accused person is unfit to plead or stand trial necessarily involves a finding by a jury that he has actually done the acts charged against him, notwithstanding that he is not made to face criminal responsibility for them: sections 4, 4A, and 5 Criminal Procedure (Insanity) Act 1964 as amended by the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, under Schedule 2 of which a supervision and treatment order such as that made in this claimant’s case has effect.  
     15.     	What the tribunal said about the claimant’s involvement in the acts with which he was charged (which were of course crimes) was thus not something that could have been disputed; and it seems to me the tribunal was also justified in the only reference it made to these acts as relevant to the substance of its decision, which was confined to the single question of how far it was right to say he was suffering the physical disabilities he had been claiming.  As paragraph 15 of the statement of reasons at page 126 records:
15.  “... He insisted the tribunal should rely on what he had said in his claim packs.  The claim packs from 2003 and 2004 detail extensive care needs and very restricted mobility.  These claims were at odds with his participation in a very violent crime as described on pages 69 and 76 of bundle 2 [the psychiatric reports].  Fortunately for the Appellant, he has apparently no recall of these events.  He therefore could not explain how this was possible.  We did not think it probable that someone could carry off the crime described, get into the driver’s seat, fend off and overcome the victim, and then escape capture if he were capable of walking only a few yards at incredibly slow speeds, could not walk in his own home without assistance, and needed help on and off the toilet.  This behaviour requires physical strength and agility, and at the very least calls into question the previous award.  This suggested to us exaggeration in the claim packs and made the contents of the claim packs unreliable.  This was not improved on in the oral evidence.  We did not accept the appellant’s oral evidence or his claim pack evidence, except where it was supported by independent evidence.”
     16.     	I find nothing in that to which any proper exception could be taken.  The tribunal there appears to be focusing exclusively, and quite properly, on the fact of the claimant’s physical ability to carry out the energetic acts involved in the crime against the trailer owner.  I see no ground for any suggestion of wrongful assumptions having been made against him as to criminal guilt contrary to what was recorded by the tribunal as to that never having been tried.  Because of the procedure involved in the making of a finding of unfitness to plead and a supervision and treatment order under the 1964 and 1991 Acts, it could not be denied that the claimant had actually done the physical acts of which he was accused.  Plainly in my judgment that was a proper matter to take into account in assessing the extent of his physical disabilities, and the value to be accorded to his own evidence about these, in the way the tribunal recorded.  
     17.     	Apart from the claimant’s own evidence, there was nothing before the tribunal to support his contentions that as at 27 August 2004 he had been so far physically disabled as to be virtually unable to walk; and the evidence of the medical examination on 19 August 2004 which had specifically addressed this question showed the opposite.  On the basis of the findings in that examination, which were quite properly referred to and accepted by the tribunal as recorded in paragraph 3 of its statement of findings, there was no question of the claimant being entitled to the higher rate mobility component; though he did, as the tribunal held, qualify for the lower rate on the ground of his difficulties in getting around for himself without guidance or supervision due to the effects of his anxiety:  paragraph 4.  
     18.     	In my judgment therefore there are no grounds for criticising the tribunal’s decision on the question of mobility.  The later increase to the higher rate for mobility from 9 November 2005 was expressly made on the ground of the significant deterioration in his condition found to have occurred since August 2004; that is not in any way inconsistent with the decision in this appeal as regards the period before the deterioration. 
     19.     	The tribunal’s treatment of the psychiatric evidence, and its conclusions that the claimant had not been shown to qualify for more than the lowest rate of the care component in the earlier period any more than in the later one, are not in my judgment open to legitimate criticism as a matter of law either.  So far from ignoring the evidence in the psychiatric reports as Mr Cook’s argument suggested the tribunal must have done, its statement of reasons shows that careful account was taken of all the contents of those reports, but the conclusion was reached after reasoned consideration that they were not incompatible with the findings of the examining medical practitioner and nothing in them contradicted his conclusions.   Moreover two of the psychiatrists gave the opinion that he was not a suicide risk, and there was nothing in the psychiatric reports which indicated a need for continual supervision for mental health problems.  Taking account of the fact that the psychiatrists were primarily assessing only the claimant’s mental capacity to plead to the criminal charges, and that the examining doctor’s report which the tribunal accepted was directed specifically to the attention and supervision criteria for disability living allowance, the tribunal found on the totality of the evidence that he had not been shown to qualify for the middle rate as a person needing either frequent attention or continual supervision.  
     20.     	Those were conclusions of fact and degree which the tribunal was entitled to reach on the evidence, and its reasons are clearly and fully explained in paragraphs 17 to 23 inclusive of the statement of reasons at pages 127 to 128.  Although Mr Cook appreciated that in order to challenge these conclusions as a matter of law it had to be shown they were such as no reasonable tribunal could have arrived at on the evidence, and he so submitted, his argument in my judgment amounted to no more than saying that a different view might have been taken at various points on the questions of degree involved.  That may be so but is quite insufficient to give rise to a legal challenge to the conclusions of the tribunal which read and heard the evidence.  
     21.     	There was nothing in any of the subsidiary points.  The fact that a supervision and treatment order was made in the criminal proceedings demonstrates only that the claimant was found to be suffering from a mental disability rendering him unfit to plead. It does nothing to demonstrate that he also met the very specific criteria relevant for the care component of disability living allowance, of being so severely disabled physically or mentally as to require continual supervision throughout the day in order to avoid substantial danger to himself or others.  I do not agree that there was anything wrong or unfair in the way the tribunal referred to the medical evidence on the question of whether the claimant’s memory loss was due to “malingering”.  Although as Mr Cook pointed out the consensus of opinion in the reports was that this was not such a case, it is accurate to say that they did not exclude the possibility; but in any case the tribunal gave the claimant the benefit of any doubt on the point, in accepting that he did genuinely suffer from the memory loss described, as recorded specifically in paragraph 18 of the statement of reasons.  
     22.     	The suggestion that the tribunal failed to take account of a change in the claimant’s circumstances when he took a drug overdose in December 2003 is unsustainable when this was specifically referred to more than once in the statement of reasons, and taken into account in particular in assessing the questions of suicide risk and need for supervision:  paragraph 23.  The suggestion that the tribunal wrongly focused on the claimant’s condition at the time of his alleged criminal offences to the exclusion of what happened later is equally unsustainable, in view of its detailed consideration of the evidence (in particular the medical evidence) as to his physical and mental condition the following year in 2004.  I find no reason whatever to infer against an experienced tribunal, carrying out what the papers demonstrate to have been a very careful and thorough job on these two appeals, that it focused as regards this one on anything other than the circumstances obtaining at the date of the decision under appeal, 27 August 2004, as such a tribunal will be all too well aware it is required to do under section 12(8) Social Security Act 1998.  
     23.     	For those reasons I accept Mr Hendron’s argument on behalf of the Secretary of State that the tribunal’s decision was not erroneous in point of law and I dismiss this appeal. 

(Signed)

P L Howell
Commissioner
17 July 2007