Decision No: C40/99(DLA)

	SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

	SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS
	(NORTHERN IRELAND) ACT 1992

	SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)
	(NORTHERN IRELAND) ACT 1992

	SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

	DISABILITY LIVING ALLOWANCE

	Appeal to the Social Security Commissioner
	on a question of law from a decision of
	Belfast Disability Appeal Tribunal
	dated 19 March 1998

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant against the decision of a Tribunal to the effect that he is entitled to the middle rate of the care component of Disability Living Allowance from 20 September 1997 to 19 September 2002 and is not entitled to the mobility component of Disability Living Allowance from and including 20 September 1997.  Leave to appeal was granted by a Commissioner on 9 November 1999.

2.	The claimant made a claim for Disability Living Allowance on 30 June 1994 on the grounds that he suffered from Rheumatoid Arthritis.  After a report was completed by the claimant's General Practitioner on 4 August 1994, an Adjudication Officer, on 14 August 1994 disallowed the claim from and including 30 June 1994.  After a request for review was received on 8 September 1994, an Examining Medical Practitioner examined the claimant on 27 September 1994.  A different Adjudication Officer on 5 October 1994 then reviewed the decision of 14 August 1994 and revised the decision awarding higher rate mobility component and highest rate care component from and including 30 June 1994.  On 20 September 1997 the claimant was examined by an Examining Medical Practitioner and a request by the Department was made for a review on 30 September 1997.  On 9 October 1997 an Adjudication Officer reviewed the decision of 5 October 1994 (wrongly described as dated 5 August 1994) and decided that Mr McM... was only entitled to the care component of disability living allowance at the lowest rate for the meal test from and including 20 September 1997.  Then on 28 October 1997 a request by the claimant for a review was received.  On 28 November 1997 a different Adjudication Officer reviewed the decision of 9 October 1997 but did not revise it.  On 11 December 1997 the claimant appealed to a Disability Appeal Tribunal.

3.	The Tribunal made the following findings of fact material to its decision in relation to the care component:-

		"a.	Claimant is a 50 year old man who suffers from rheumatoid 
			arthritis and also complains of asthma and diabetes but 
			there is no record of any diagnosis of these latter two 
			complaints in his General Practitioner records.  On 5 
			October 1994 he was awarded high care and high mobility 
			from and including 30 June 1994.  On 20 September 1997, 
			as a result of information which came to its attention, 
			the Department had claimant examined by an Examining 
			Medical Practitioner and his report indicated a change 
			in circumstances which was sufficient to give grounds for 
			a review of the existing award.

		b.	We accept that the Examining Medical Practitioner report 
			dated 20 September 1997 establishes that there has been a 
			material change in claimant's circumstances and that this 
			is a ground for us to review the decision dated 5 October 
			1994 and we adopt the report as part of our findings.

		c.	Claimant's night-time needs, as found by the Examining 
			Medical Practitioner who examined him on 20 September 1997 
			are less than those found in the examination of 27 September 
			1994.  We find that he does not now require prolonged or 
			repeated attention in connection with his bodily functions 
			at night although he still does require frequent attention 
			throughout the day.  He does not require supervision either 
			by day or night."

4.	The Tribunal, in relation to the mobility component, made identical findings of fact as set out at paragraph a and paragraph b (see paragraph 3 above) but made the following additional findings of fact:-

		"c.	On the basis of the Examining Medical Practitioner report 
			we find that claimant can walk about 200 yards without 
			severe discomfort and for a reasonable time.  The speed 
			and manner of his walking is reasonable.  He requires no 
			guidance or supervision while walking out of doors.  
			There is no reason why the exertion required to walk should 
			cause any risk to his life or health."

5.	The Tribunal gave the following reasons for its decision in relation to the care component:-

		"We do not pass any judgement on the information which caused 
		the Department to investigate claimant's circumstances but we 
		do take account of the Examining Medical Practitioner report 
		to which those investigations gave rise.

		We have carefully examined the General Practitioner records and 
		noted that on 17 December 1997 at Belfast City Hospital Dr A J 
		T… found claimant's finger joints swollen and tender but a 
		good range of movement in his wrists.  His knees showed no 
		abnormality.  On 25 November 1997 X-rays showed his lumbar spine 
		to be normal and some degeneration changes in his cervical spine.  
		Overall there was nothing in the records which cast doubt on the 
		accuracy of the Examining Medical Practitioner report.  The 
		Examining Medical Practitioner had an opportunity to carry out a 
		clinical examination and to observe claimant in his own home and 
		the report is an expert assessment.  As already stated we cannot 
		find anything on the General Practitioner records which 
		significantly contradicts it and having seen and heard claimant 
		giving evidence we prefer the Examining Medical Practitioner report 
		where there are contractions between the two.  We have therefore 
		accepted the Examining Medical Practitioner report and, on the 
		balance of probabilities, have found that it supports no more than 
		the middle rate of care."

6.	The Tribunal, in relation to the mobility component, gave identical reasons, save that for the last sentence in the reasons in the care component reasons it substituted the following sentence:-

		"We have therefore accepted the Examining Medical Practitioner 
		report and we are in no doubt that a walking ability such as that 
		described in part 5 of the report puts claimant outside the criteria 
		for the Mobility Component."

7.	The unanimous decision of the Tribunal in relation to the care component was as follows:-

		"Appeal allowed - claimant is entitled to the middle rate of the 
		care component of D.L.A. (for day time needs) from 20/9/97 to 
		19/9/2002.  Previous payments to be off-set against arrears now 
		due.  The qualifying period is satisfied."

8.	The unanimous decision of the Tribunal in relation to the mobility component was as follows:-

		"Appeal disallowed - claimant is not entitled to the mobility 
		component of D.L.A. from and including 20/9/97."

9.	The claimant did not seek leave to appeal from a Chairman within the statutory period.  However a Commissioner on 25 February 1999 accepted an application for leave to appeal for special reasons.  Also, as stated at paragraph 1, leave to appeal was granted by a Commissioner on 9 November 1999.

10.	Having considered the circumstances of the case I am satisfied that this appeal can properly be determined without a hearing.

11.	In the application for leave to appeal it was contended by H… H… D…, Solicitors, on behalf of the claimant that the Tribunal had erred in law in that the information available to it did not give it reasonable grounds for believing that his entitlement to the mobility component of Disability Living Allowance ought not to continue.  In particular the provisions of section 31 of the Social Security Administration (Northern Ireland) Act 1992 were relied upon.

12.	The only possible relevance of section 31 would be a reference to restrictions opposed under section 31(6) which applies where there is a life award.  This relevant portion of section 31 is in the following terms:-

		"31.-(1) Where an adjudication officer has given a decision on a 
		review under section 28(1) above, the claimant or such other 
		person as may be prescribed may appeal -

			(a) 	in prescribed cases, to a disability appeal tribunal; 
				and

			(b) 	in any other case, to a social security appeal tribunal.

		      	(2) 	...

			(3) 	...

			(4) 	...

			(5) 	...

			(6) 	The tribunal shall not consider -

				(a) 	a person's entitlement to a component which 
					has been awarded for life;

				(b) 	the rate of a component so awarded; or

				(c) 	the period for which a component has been so 
					awarded,

			unless -

				(i) the appeal expressly raises that question; or

				(ii) information is available to the tribunal which 
				     gives it reasonable grounds for believing that 
				     entitlement to the component, or entitlement to 
				     it at the rate awarded or for that period, ought 
				     not to continue."

13.	In this case the appeal was against the decision of the adjudication officer dated 28 November 1997 who reviewed but did not revise the decision of a different adjudication officer dated 9 October 1997.  The decision removed a life award of the higher rate mobility component and replaced a life award of the highest rate of the care component with a life award of the lowest rate of that component.

14.	Mr Toner, in a revised submission set out in a letter dated 30 November 1999, stated as follows:-

		"When the appeal went before the Tribunal, [claimant] had a life 
		award of the lowest rate care component intact, and he was seeking 
		to have that award increased to the highest rate care component and 
		to have the higher rate mobility component reinstated for life.  The 
		Tribunal decided that [claimant] did not satisfy any of the conditions 
		for an award of the mobility component and increased the award of the 
		care component to the middle rate for the period from 20 September 
		1997 to 19 September 2002.  While the provisions of section 31(6)(i) 
		of the Social Security Administration (Northern Ireland) Act 1992 
		do not preclude increasing the rate of benefit (see the decision of 
		the Chief Commissioner C59/98(DLA), paragraph 34 (....) there 
		is no provision to alter the period unless the appeal expressly 
		raises that question.  As the appeal did not raise the question 
		of the period of the care component, I submit that the Tribunal 
		could only establish jurisdiction to alter the award under the 
		provisions of section 36(6)(ii).  I also submit that the Tribunal 
		erred in law by not identifying the information (see 
		Commissioner's decision C12/98(DLA), paragraph 10 (....) which 
		led it to altering the period of the award."

15.	I consider that Mr Toner is correct in his submissions.  Section 36 has relevance in this case although not in the way suggested by the claimant's solicitor.  I conclude that the Tribunal has erred in law by not identifying the information which led it to alter the period of the care award.

16.	The claimant's solicitors made additional written submissions in writing on 23 June 1999.  These submissions were to the effect that the Examining Medical Practitioner's report of 20 September 1997 did not establish a relevant change of circumstances and thus did not establish grounds for review.

17.	Mr Toner, in his letter dated 19 August 1999, containing his submissions on the claimant's application for leave to appeal, substantially agreed with the claimant's solicitors' submissions.

18.	While the claimant's solicitors' submissions are of equal relevance, it seems to me appropriate at this stage to quote at some length Mr Toner's submissions on this point as they succinctly deal with the issues raised on behalf of the claimant.  Mr Toner submitted as follows:-

		"In the second paragraph of the (claimant's solicitor's) submission, 
		reference is made to an earlier award of the higher rate mobility 
		component being based on a statement made by [claimant] to the EMP 
		on 27 September 1994 in which he indicates that he manages to walk 
		200 yards or so but has to stop because of severe pain in his right 
		ankle.  This statement is compared to a statement made to the EMP on 
		20 September 1997 where [claimant] is said to have told the EMP that 
		he can only manage to walk 100 yards on the flat.  It is pointed out 
		that in the statement made to the EMP on 20 September 1997 it is 
		recorded at page 2 that [claimant] can only manage 200 yards, not 
		100 yards on the flat.

		The Tribunal's decision

		The Tribunal, on 19 March 1998 awarded the care component at the 
		middle rate from 20 September 1997 to 19 September 2002 for day 
		needs and disallowed the mobility component.

		The following finding of fact was made in respect of both 
		components -

			"We accept that the Examining Medical Practitioner 
			report dated 20 September 1997 establishes that 
			there has been a material change in the claimant's 
			circumstances and that this is a ground for us to 
			review the decision dated 5 October 1994 and we 
			adopt this report as part of our findings."

		In respect of the mobility component the Tribunal found -

			"On the basis of the Examining Medical Practitioner 
			report we find that the claimant can walk about *200 
			yards without severe discomfort and for a reasonable 
			time.  The speed and manner of his walking is reasonable
			.........."

		*It is clear from the report that the EMP did not observe [claimant] 
		walking and the Tribunal's findings are based on opinion and not on 
		fact.

		In respect of the care component the Tribunal found -

			"Claimant's night-time needs, as found by the Examining 
			Medical Practitioner who examined him on 20 September 
			1997 are less than those found in the examination of 
			27 September 1994.........."

		Having adopted the EMP's report dated 20 September 1997 as part 
		of its findings the Tribunal appear to have been rather selective 
		about how it applied that report to the findings it has made.  In 
		particular, the following extracts from the EMP's report would 
		indicate that [claimant's] condition had not improved since the 
		previous EMP report on 27 September 1994 -

		Comparisons of page 10 of both EMP reports reveal a worsening in 
		the functioning of the lower limbs.

		At page 14 the EMP recorded "There seems to be a steady decline 
		since then (i.e. 1993) although he admits that he gets the odd 
		"good" day."

		At page 25 the EMP recorded "This man's needs appear essentially 
		the same as when last assessed.  His needs are likely to slowly 
		increase."

		Again, in the record of proceedings the chairman has recorded 
		[claimant] as saying -

			"On bad days may not be able to walk at all." and 

			"I would have 5 bad days per week."

		In paragraph 3 of decision CM/125/1989 (...) the Great Britain 
		Commissioner held -

			".......... I agree that full account must be taken of 
			the words "physical condition as a whole" in regulation 
			3(1) of the Mobility Allowance Regulations 1975 and that 
			accordingly account must be taken of fluctuations in walking 
			ability.  Consideration must be given to both the good and 
			the bad days .......... I have no doubt that a tribunal must 
			deal with all the relevant matters whether they are directly 
			put in issue by the claimant or not.  They are an inquisitorial 
			body and must act accordingly .........."

		I submit that it was incumbent on the Tribunal to deal with the 
		above extracts from the EMP's report and the evidence given 
		by [claimant] at the hearing to the extent that it made 
		appropriate findings of fact and for this reason I support 
		this application."

19.	In my view the claimant's solicitor and Mr Toner are both correct in submitting that in these circumstances the Tribunal has failed to make appropriate findings of fact to decide the questions in issue in this case.  In particular the Tribunal ought to have dealt with the evidence that would seem to suggest that the claimant's condition was deteriorating.  In the circumstances I conclude that, in not so doing, the Tribunal erred in point of law.

20.	For the reasons stated I am satisfied that the Tribunal's decision is erroneous in law for the reasons set out herein.  Accordingly I allow the appeal and set aside the decision of the Tribunal.  In the circumstances I direct that a differently constituted Tribunal rehears all the issues in relation to both the mobility component and the care component of Disability Living Allowance and comes to the appropriate decisions in light of all the relevant evidence.  Accordingly I refer the matter back to such a Tribunal for a rehearing.

(Signed): J A H Martin

CHIEF COMMISSIONER

9 March 2000