CDLA/41/2008

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant against the decision of the Darlington Appeal Tribunal given on 21st September 2007.  By a majority decision the tribunal dismissed the claimant’s appeal against the decision of the decision maker made on 4th April 2007 that the claimant is entitled to the higher rate of the mobility component of disability living allowance from 4th April 2007 to 3rd April 2012 and the lowest rate of the care component for the same period.

2.	The appeal is supported by the Secretary of State and, as explained below, I allow the appeal broadly for the reasons set out in the helpful submission dated 1st April 2008.  The claimant has urged me to make my own decision on this case if possible, but I regret to say that that does not appear to me to be appropriate, again as explained below.  The matter must therefore be remitted to a new tribunal constituted, differently from the previous tribunal, under the provisions of Part I of the Social Security Act 1998.

3.	The relevant facts are as follows.  In 1992 the claimant underwent an operation to remove a sarcoma from her right leg, in the course of which a large amount of muscle tissue was also removed.  The operation left the claimant with an inability to bend her knee to any significant extent and considerable pain.  It is not disputed that since then she has been virtually unable to walk for the purposes of section 73(1)(a) of the Social Security Contributions and Benefits Act 1992.  As a consequence, she is entitled to the higher rate of the mobility component.  It is also not disputed that the claimant cannot cook a main meal for herself for the purposes of section 72(1)(a)(ii) of the Act and that as a consequence she is entitled to the lowest rate of the care component.  The point at issue is the extent of the claimant’s entitlement to the care component. 	

4.	Prior to the decision of 4th April 2007, the subsisting decision was a decision of 12th September 1997 by which a decision of the adjudication officer made on 18th April 1993 was reviewed on the ground that it was made in ignorance of a material fact.  It was said that the claimant’s needs had persisted beyond the expected improvement date and were likely to continue.  The revised decision was that the claimant was entitled to an indefinite award of the care component at the middle rate from and including 17th July 1995 on the ground that she needed frequent attention throughout the day:  see section 72(1)(b)(i) of the 1992 Act.  The higher rate mobility component was not in issue and was not considered.

5.	That decision was based on a renewal claim pack received on 14th July 1997 and an examining medical practitioner’s report dated 4th September 1997.  The daytime activities with which the claimant said she needed help were:

(1) 	getting out of bed;

(2)	having a bath;

(3)	getting dressed;

(4)	moving about indoors and outdoors;

(5)	medical treatment (physiotherapy and massage);

(6)	preparing a cooked main meal;

(7)	getting undressed.

The claimant also said that she needed someone to keep an eye on her during the day because of the risk of falls and generally to protect her leg and that at night she needed help going to the toilet and with her medication and for reassurance.

6.	The examining medical practitioner agreed with the claimant about her needs.  He said that there was a genuine problem and she was unlikely to get any further improvement.  He also said that she really could do with help, especially when walking outside.

7.	Following the decision of 12th September 1997 there were no further developments until an anonymous allegation was made that the claimant was not as disabled as she claimed.  The allegation was duly investigated and the claimant was interviewed under caution on 7th December 2006.  I make three comments in relation to that interview:

(1)	it was put to the claimant that she had never told the Disability Unit that she was working, although she had in fact been working since 1990.  In fact in 1997 the examining medical practitioner recorded that the claimant said she had a clerical job, with a lot of special equipment provided (p.41).  At the interview the claimant said further that a man from the Department of Work and Pensions came to her workplace and assessed her needs and got special equipment for her.  Any suggestion or implication that she failed to disclose that she was able to work when she should have done so therefore seems to be unsustainable;

(2)	the claimant was asked questions about her nighttime needs, which the claimant agreed had improved slightly.  Those needs, however, were not the basis of the award to the claimant.  She did not agree that there had been any reduction in her daytime needs;

(3)	the claimant said that her pain had got worse.  That was supported by her G.P. in a report dated 7th February 2007 and a letter dated 25th May 2007.

8.	The claimant underwent a further medical examination on 23rd March 2007.  The report by the examining medical practitioner recorded that a secondary sarcoma had been excised from the claimant’s lung in 2002 and that she now suffers from asthma.  He noted that she last received physiotherapy in 2000.  He assessed her as not needing help with medical treatment, but otherwise found that she had the care needs listed as (1), (2), (3), (6) and (7) in paragraph 5 above.  As to her ability to walk or move about generally, he said:

“Credible account of severe disability due to excision of several thigh muscles …  This causes profound weakness and immobility of the right knee.”

Her gait was staggering and her balance significantly impaired.  He seems to have regarded the claimant as at risk of falls (see p.126) and stated that he believed that the claimant needed help to use the toilet once at night about four times a week.  He described her condition as static.

9.	The decision appealed against is said to have been a decision to revise made under section 9 of the Social Security Act 1998 and regulation 3 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, S.I. No. 991.  That appears to me to be a mistake, since the decision is said to have been based on a relevant change of circumstance, a ground which is only available under regulation 6 and which leads to a supersession of the previous decision, not a revision of it.  That point is underlined by the fact that the decision maker decided that the benefit should be changed from the date of the new decision, since there were no grounds to change it from an earlier date.

10.	The grounds of the decision were that there had been a reduction in the amount of attention the claimant needed during the day with activities of personal care.  The basis of the award of the lowest rate of the care component was that the claimant could not cook herself a main meal.  It appears that the decision maker thought that the claimant no longer needed help with using stairs, replacing bed covers and getting to the toilet and that that was why her personal care needs were said to have been reduced.  The latter two activities, however, related to the claimant’s nighttime needs.  In the decision maker’s submission to the tribunal it was accepted that she would need help before attempting to use the stairs.

11.	When the case came before the tribunal, it was unusual in that a presenting officer was there.  It appears from the record of proceedings that he was aware that the reasons given by the decision maker for the decision presented difficulties.  His submission to the tribunal (p.165) was that the decision maker could properly supersede the previous decision on the ground that the claimant no longer required attention several times a day in the form of physiotherapy.  In the absence of that need, the claimant’s care needs did not amount to a need for frequent attention throughout the day but to a need for attention for a significant portion of the day, which would support an award of the lowest rather than the middle rate.  
The claimant’s representative submitted that no ground for superseding the 1997 decision had been shown and that the claimant’s previous award ought to be reinstated.

12.	In their statement of reasons, the tribunal considered whether or not the Secretary of State had shown a change of circumstances which would open the way to supersession of the previous decision and concluded, by a majority, that such a change was shown because the claimant no longer needed significant help with physiotherapy.  The dissenting member of the tribunal accepted the oral evidence of the claimant’s mother and partner that she did require physiotherapy and massage to an extent which, when combined with her other accepted care needs, amounted to a need for frequent attention throughout the day.

13.	As I read the statement of reasons, all the members of the tribunal accepted that the claimant had the care needs found by the examining medical practitioner as explained in paragraph 8 above.  They appear also all to have accepted that the claimant did not require help in using the stairs, while not explaining that departure from the concession made in the decision maker’s submission.  They further found that she did not require any help in connection with communications or in relation to social or religious activities, interests or hobbies.  In those circumstances, the need or otherwise for physiotherapy or massage was crucial to the claimant’s entitlement to the middle rate of the care component on the ground of daytime attention needs on the tribunal’s reasoning.

14.	The claimant’s mobility difficulties and propensity to fall were considered in connection with her possible need for continual supervision throughout the day.  The tribunal said in paragraph 8 of its statement of reasons:

“The Tribunal accepted that the appellant had fallen on occasions as a result of her physical disabilities and it accepted that the falls might be unpredictable and unavoidable.  The Tribunal considered however that it would be possible to reduce the number of falls by the appellant moving slowly and carefully and using her stick appropriately.  The Tribunal noted that the appellant would be conscious when falling and therefore would be able to minimise the adverse effects of a fall.  There was no evidence that the appellant had suffered any significant injury when falling.  The Tribunal had to consider what would be a reasonable response to the risk which arose from the appellant’s falling and concluded that continual supervision was not required to meet that danger during the day but that it would be safe to leave the claimant alone for periods long enough to prevent the supervision being regarded as continual …”

They did not consider to what extent the claimant’s mobility difficulties might mean that in the course of a normal day she reasonably required attention to enable her to move around from time to time, whether indoors or out of doors.

15.	The claimant’s application for leave to appeal was made by letter dated 13th November 2007 and set out five grounds of appeal.  Paragraph 2 reads:

“The Tribunal appears not to have taken into account the attention and supervision [the claimant] requires when walking outdoors due to her balance problems…  [The claimant] uses a stick, but is still extremely vulnerable due to the lack of muscle [on] her affected leg.  She frequently falls if additional support and supervision are not on hand.  It is submitted that this amounts to attention or supervision in connection with communications with others.”

The district chairman granted leave to appeal on that ground, while querying how it might amount to attention in connection with communications with others.

16.	The Secretary of State’s basis for supporting the appeal is a variant on that ground.  It is suggested that the last sentence of the passage quoted in paragraph 14 above may amount to a partial acknowledgment that the claimant did require some assistance with the bodily function of walking, whether indoors or out of doors, even if the condition for continual supervision was not fulfilled.  Further, if the claimant did have such a need for attention, the question arises whether, taken in conjunction with her other accepted care needs, the claimant had a need for frequent attention throughout the day.  The tribunal made no findings either as to whether the claimant had such a need or whether, if so, the attention she required in total amounted to frequent attention.  The absence of those findings, it is submitted, amounted to an error of law.   

17.	In my view, the Secretary of State’s submission is correct.  The point is an easy one to miss in this case because the claimant is virtually unable to walk.  It is nevertheless clear that she does do a certain amount of walking, albeit of very short distances.  She is a relatively young woman who appears to be doing her best to lead a normal life in spite of her severe disability.  Specifically, she has a part-time job outside the home, in relation to which she is assisted by a designated colleague as necessary, and she drives a car, which means that she gets to her car in order to drive it.  In Secretary of State v. Fairey [1997] 1 W.L.R. 790 (R(A)2/98) Lord Slynn of Hadley drew attention to the importance of the yardstick of a normal life as a means of measuring what a claimant reasonably required.  The tribunal’s findings in paragraph 8 of the statement of reasons and the decision maker’s submission about the use of stairs both in my view impliedly recognise the possibility that the claimant may reasonably require attention in relation to the bodily function of walking or moving about over and above the attention that she is accepted to require for other purposes.  The tribunal’s findings of fact, which did not address this possibility, were therefore insufficient and the decision must be set aside.

18.	Unfortunately, the material before me casts little light on the facts as to whether or not, and if so, how often, the claimant needs such attention.  I note that the claimant has a young son and says she is often very tired at the end of the day, so it may be that she rarely leaves the house except to go to work, which she does from Mondays to Wednesdays.  There is a statement from the claimant’s work colleague which refers to help given with walking, but there is no indication how frequently help is required.  Nor is there any clear evidence from anyone else.

19.	It follows from this that I am not at present in a position to make findings of fact about the claimant’s attention needs in relation to walking.  Further evidence will be required if the claimant wishes to pursue this ground of appeal and it would be appropriate for that evidence to be given orally, so that it can be tested if the Secretary of State wishes to do so.  In those circumstances, the claimant’s object in asking me to make my own decision, which I understand to be to avoid a further oral hearing if possible, would not be achieved.

20.	Moreover, the claimant’s third ground of appeal is that the statement of reasons does not explain why the majority of the tribunal did not accept the evidence of the claimant’s mother and partner about physiotherapy and massage.  The tribunal dealt with the point in paragraph 9 of the statement of reasons as follows:

“Except where mentioned to the contrary, the evidence which supported the majority of the Tribunal’s findings of fact … was the report of the EMP …  They preferred his report to the evidence of the appellant, her mother and partner.  The majority of the Tribunal formed the impression that the appellant, her mother and partner tended to exaggerate the extent of the claimant’s functional disability.  They also found it inconsistent that the appellant herself did not refer to the need for help with physiotherapy/massage when asked in general terms what help she required and the issue of physiotherapy/massage only arose at a later stage in the hearing, being first mentioned by her mother and then by her partner.  The majority of the Tribunal found the EMP report to be more reliable because the opinions expressed in it as to the appellant’s functional disability were professional ones based on a formal interview with the appellant, followed a clinical examination of her and contained clinical findings which, in the opinion of the Tribunal, supported his opinions as to the extent of the appellant’s functional disability.”

The tribunal also said, in paragraph 5, that it would have been reasonable to expect that the need for physiotherapy would have lessened over the time since the excision of the sarcoma.

21.	At first sight this appears to be a clear and convincing explanation of the reasons for the view taken by the majority of the tribunal.  It seems to me, however, that the examining doctor accepted the claimant’s account of her disability, which he described as “severe”, and her needs, whereas the implication of the paragraph quoted above is that there was a clear difference.  The doctor himself did not suggest any exaggeration on the part of the claimant.  The only difference relates to the physiotherapy and in that respect it seems to me there may possibly have been a misunderstanding.  As far as appears from the record of proceedings, it was not suggested that the claimant was receiving physiotherapy or massage from a hospital or other professional source and it occurs to me that what was said in the examination may have related to such professional physiotherapy rather than any physiotherapy or massage received from the claimant’s mother or partner.

22.	There is of course force in the point made by the tribunal that the claimant did not herself refer to a need for physiotherapy or massage.  It appears from the record that there was a general question right at the beginning of the consideration of the claimant’s care needs and at the end a further general question whether there was anything else was put to the claimant, her mother and her partner.  It is less clear whether the claimant had the opportunity to answer that question before her mother mentioned the physiotherapy.  I cannot see in the record (although there are a few parts which I have difficulty in reading) that the claimant was ever asked why she told the examining doctor that she had last had physiotherapy in 2000.

23.	In those circumstances, and bearing in mind the crucial part played by the issue whether or not the claimant reasonably required physiotherapy or massage in the tribunal’s reasoning, I take the view that in performance of their duty to act inquisitorially and as a matter of fairness, the tribunal ought to have asked the claimant about her answer to the examining doctor and about why she had not mentioned physiotherapy or massage herself.  Although the factors are finely balanced, I conclude that this was a further error of law on the basis of which I would, if necessary, have set the decision aside.  As it is, this becomes another aspect on which further evidence would no doubt assist the making of the decision and another reason why the case should be remitted to a new tribunal.

24.	I can deal briefly with the claimant’s other grounds of appeal, as follows:

(1)	it is said that in paragraph 1 of the statement of reasons the tribunal mistakenly referred to the claimant having been awarded the middle rate of the care component on the ground that she was unable to prepare a cooked main meal for herself.  The tribunal clearly did make such a mistake, but they did so in the course of setting out the decision appealed against.  I have no doubt that the tribunal correctly understood what the decision was and that this mistake did not contribute in any way to their decision;

(2)	it is said that the way in which the tribunal dealt with the evidence of the claimant’s G.P. and consultant, drawing attention to their reliance on what the claimant said, was inconsistent with the way in which it dealt with the report of the claimant’s special needs at work, which was rejected on the basis it did not address the qualifying conditions for disability living allowance.  In my view, the tribunal was giving two different reasons for having attached comparatively little weight to other evidence and there is no inconsistency.  The appeal draws attention to the undoubted difficulty that most medical professionals are not specifically trained in the criteria for disability living allowance and so are reliant on information given by the patient, but goes on to point out that the claimant’s G.P. did express the view that she requires some supervision, as she would undoubtedly be in danger if she were totally independent.  While it may be understandable that most medical professionals do rely on what the patients say, it is nevertheless proper for a tribunal to assess whether a view is expressed on such a basis or on the basis of the professional’s own opinion.  I accept that the view of the claimant’s G.P. which is referred to does appear to be his own opinion and should be given weight as such, but I do not accept that it goes so far as to show a need for attention and supervision “most of the time”, as is submitted;

(3)	finally, it is said that the claimant is not always aware of the level of care and supervision she requires, the point being that her work colleague’s evidence was rejected on the ground that it suggested a level of help which exceeded that expressed by the claimant herself at the hearing and to the examining doctor.  I do not find this submission persuasive, since there appears to be no factual foundation for the suggested lack of awareness.  The claimant’s disability is entirely physical and I see no reason why she should not be fully aware of what her needs are.

25.	For the reasons I have given, I set aside the decision of the tribunal and remit the matter to be heard by a new tribunal.  That tribunal will need to consider, as the claimant contends and as the previous tribunal did, whether any ground for supersession is shown and if so, what decision should now be made.  They should take into account the points made above when considering the matter.  I can understand that the claimant found the last tribunal an extremely stressful experience and one which she does not wish to repeat unless absolutely necessary, but I am sure her representative will be able to explain to her why a further hearing before someone is required and the benefit that tribunals do gain from hearing a claimant’s own account of her situation.

	(signed on the original)	E. Ovey
		Deputy Commissioner
							           22nd May 2008