[2007] UKSSCSC CDLA_4032_2006 (16 May 2007)

CDLA/4032/2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant against the decision of the Colchester Disability Living Allowance Appeal Tribunal given on 2nd June 2006.  By its decision the tribunal determined that the claimant was not entitled to either component of disability living allowance with effect from 12th March 2006.  In doing so the tribunal dismissed the claimant’s appeal from the decision of the decision maker on 14th February 2006.  The present appeal is supported by the Secretary of State, who submits that the decision of the tribunal should be set aside and the matter should be remitted for rehearing by a differently constituted tribunal.  I accept that submission.  It follows that I can give my reasons briefly.

2.	As now appears from the Secretary of State’s submission, the claimant was in receipt of an award of disability living allowance of some kind from 27th July 1998 until an award made on 5th May 2004 ended on 11th March 2006.  Throughout that period the claimant was in receipt of the mobility component at the higher rate.  For part of the time she was in receipt of an award of the care component, although the rate varied.  Most recently the award was at the highest rate.

3.	Unfortunately the full details of the previous awards were not before the tribunal.  It had the information relating to the 2004 award, from which it was clear that a previous award made on 4th April 2001 had been superseded as a result of an increase in needs (pp. 54 and 56).  The tribunal rightly reminded itself that the claimant, who was aged 70 at the date of the hearing, must have been entitled to disability living allowance prior to her 65th birthday.  Otherwise she would have been precluded by section 75 of the Social Security Contributions and Benefits Act 1992 from receiving any award of disability living allowance.  The tribunal did not, however, have any further information about the awards which preceded the 2004 award.

4.	In her 2004 renewal claim form, the claimant said that she was suffering from interstitial cystitis, osteoarthritis in her hips, arms and hands and baker’s knee.  She was seeing a hospital specialist about her interstitial cystitis.  Her G.P. signed the form, stating that the claimant suffered from interstitial cystitis causing frequency, urgency and bladder pain, and that she also suffered from osteoarthritis of the hips, knee and cervical spine, causing arm and hand pain (as I read it).  The claimant gave details of her mobility needs, saying that she used a mobility scooter.  She also gave details of her care needs.  She said that her condition had got worse in about December 2003.  It does not appear that any further medical evidence was obtained before the award was made.

5.	By a claim form dated 18th October 2005 the claimant sought to renew the 2004 award when it expired.  She described her illnesses as rheumatoid and osteo arthritis, interstitial cystitis, a baker’s cyst on her knee, panic attacks and an irritable bowel.  There had been some changes in her medication and treatment.  She was still in contact with the hospital.  She pointed out that she could not go out of the house because of the constant need for the toilet resulting from her cystitis.  The form was signed by a partner in her G.P.’s practice, but not her own G.P.  He described her conditions as joint pains and interstitial cystitis.

6.	On this occasion, further medical evidence was sought.  The examining doctor was informed of the claimant’s conditions as stated in the renewal form, but not as stated in the 2004 form.  In his report the examining doctor said that on examination there was slight impairment of both hands, wrists and forearms and of both hips, thighs and knees, but commented that the claimant’s hand and thumb movements were full with power and her hip movements were free.  He found no features of rheumatoid arthritis or baker’s cyst.  His conclusions were, in effect, that the claimant had no mobility or care needs.  He stated that her symptoms were of long standing.

7.	It is not surprising to find that in the light of that report the claimant’s award was terminated from 12th March 2006.  She appealed by an appeal form dated 21st February 2006, summarising her condition and stating that her G.P. and the hospital specialist would tell the Department of Work and Pensions how bad she was and give the proof the Department needed.  She also asked for a paper appeal on the ground that she would not make it to an appeal court.

8.	The decision was reconsidered but was not changed and the appeal proceeded.  It was dealt with on paper as the claimant requested.  The tribunal, referring to the report of the examining doctor, stated that independent evidence was particularly probative unless it was inconsistent or there was some other good reason.  The substance of the tribunal’s reasoning in relation to each component was that there was a conflict between the claimant and the examining doctor and that his conclusions were supported by evidence from the examination.  The claimant’s evidence was said to be inherently improbable (the mobility component) or lacking detail or explanation (the care component).  The existence of the G.P.’s evidence on the 2004 award was noted, but no further comment was made.  In those circumstances, the evidence of the examining doctor was preferred.

9.	The claimant sought leave to appeal.  Her grounds of appeal may be summarised as follows:
(1)	in the interests of justice the tribunal ought to have offered the claimant a domiciliary hearing (the possibility of which was not known to her) and ought to have contacted the claimant’s G.P. for further information;
(2)	there were inconsistencies in the examining doctor’s report which were not referred to in the statement of reasons;
(3)	no reference was made to the consequences of the claimant’s interstitial cystitis.
Leave to appeal was refused by the chairman but was granted by Mr. Commissioner Lloyd‑Davies, who raised the additional question whether the tribunal had sufficiently explained why the award was not renewed, especially since it had been increased in 2004.

10.	As I have said already, the Secretary of State supports this appeal.  In his submission dated 12th January 2007 it is said that that support is on the grounds that the tribunal failed to make sufficient findings of fact and failed to give adequate reasons.  Again in summary it is said that the tribunal incorrectly approached the appeal on the footing that, although the claimant had been entitled to some award of disability living allowance since before her 65th birthday, the only evidence in support of the previous award was that shown in the appeal papers, which did not include any of the material relating to the awards made before 2004.  The tribunal was therefore not aware of the evidence on which the higher rate of the mobility component had been awarded previously and so was not able fully to explain why the 2004 award was not renewed.  Reliance was placed on R(M) 1/96, pointing out the need for the claimant to be able to understand why an award was not being renewed, especially where the claimant contended that his condition had not changed or had worsened.

11.	In essence, I accept that submission.  It is clear that the tribunal was aware that there had been at least one decision before the 2004 decision and there was material to show that the 2004 decision involved an increase in the award.  It followed inevitably that there was further evidence held by the Department of Work and Pensions on the basis of which the earlier award or (as in fact was the case) awards had been made.  The examining doctor on whose evidence the tribunal relied said that the claimant’s conditions were longstanding and unlikely to improve.  In the absence of knowledge on the part of the tribunal what that further, earlier evidence was, it was practically speaking impossible for the tribunal to explain to the claimant why an award which she had had to some degree (the precise nature of which was unknown to the tribunal) for more than five years was being taken away.  To the extent that the tribunal attempted that task, it did so only in relation to the 2004 award, so its reasons were necessarily inadequate.  The tribunal therefore erred in law.

12.	In addition, I point out that it is extremely unclear what the tribunal found the claimant’s medical conditions to be.  Paragraph 5 states that she suffers from rheumatoid and osteo arthritis, interstitial cystitis, a baker’s cyst on her knee, panic attacks and irritable bowel.  The following paragraph records that the examining doctor found no evidence of rheumatoid arthritis or a baker’s cyst.  I do not know whether that means that paragraph 5 is not, as it appears to be, a finding of fact (consistently with the matters stated to be facts set out in the submission before the tribunal), or whether, alternatively, the examining doctor’s finding was noted but not accepted as correct.  There is no other express finding as to whether or not the claimant suffers from osteoarthritis, insterstial cystitis, panic attacks and irritable bowel and no reference is made to the terms of the G.P.’s 2004 diagnosis, namely that the claimant had osteoarthritis and interstitial cystitis.  In those circumstances, the claimant cannot be expected to understand what conditions she is found to have suffered from, although that is a fundamental aspect of her claim.  It also makes it very difficult to evaluate the tribunal’s approach to the examining doctor’s report, which identified the claimant’s main conditions as interstitial cystitis, chronic anxiety and depression and polyarthralgia.

13.	While it is understandable that the tribunal acceded to the claimant’s request to deal with her appeal on paper because she could not get to an appeal court, with hindsight it is clear that that was unfortunate.  If the claimant had been present at an oral hearing, the tribunal would no doubt have raised with her many of the points which they regarded as gaps in her evidence, in accordance with its duty to act inquisitorially.  The tribunal might well have decided to adjourn the hearing in order to obtain the further evidence relating to the claimant’s earlier awards which I have mentioned and in order to give the claimant an opportunity to obtain additional medical evidence.  It seems reasonably clear that the claimant, who was unrepresented until after the tribunal hearing, did not appreciate that, practically speaking, it was unlikely in the extreme that the Department would follow up her suggestion of obtaining further medical evidence, and that she should do so if she wanted such evidence  to be considered..

14.	In those circumstances, I set aside the tribunal’s decision and I remit the matter to be heard by a fresh tribunal.  I direct that the Department of Work and Pensions should make available the evidence it holds relating to the claimant’s previous, successful, claims to disability living allowance.  The claimant, with the assistance of her representative, will no doubt wish to consider obtaining further detailed medical evidence for the purposes of the next hearing.  As the Secretary of State rightly points out in his submission, the evidence will have to relate to how the claimant’s disabilities affected her at the date on which her previous award expired:  that is to say, 12th March 2006.

15.	Finally, it seems to me clear, as the Secretary of State recognises in his submission, that the tribunal is likely to be helped considerably if the claimant is able to be present at the next hearing to give oral evidence herself.  The representative’s proposal of a domiciliary hearing is an attractive one, given the claimant’s obvious difficulties in attending a hearing elsewhere.  I should not expect the solution of the claimant’s being represented by someone else, even someone with knowledge of her disabilities, to be as satisfactory.  I therefore express the hope that when arrangements are made for the rehearing, the chairman will give very careful consideration to holding such a hearing in this case.

	(signed on the original)	E. Ovey
		Deputy Commissioner
							           16th May 2006