Decision No: C21/02-03(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Application by the claimant for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 22 June 2000

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application, by the claimant, for leave to appeal against a decision dated 22 June 2000 of an Appeal Tribunal sitting at Strabane.  I grant leave and with the consent of Mr Toner of the Decision Making and Appeals Unit (who initially represented the Department) and of the claimant’s solicitor, treat the application as an appeal and proceed to determine any questions arising thereon as if they arose on appeal.  My decision is given in the final paragraph.  

2.	When the matter came for hearing before me Mrs Gunning, also of the Decision Making and Appeals Unit, represented the Department.  The claimant did not attend the hearing and neither did the claimant’s solicitor.  Ms McGinley of counsel did attend the hearing to represent the claimant.  I am grateful to Ms McGinley and to Mrs Gunning for their considerable assistance in the case.

3.	The Tribunal had disallowed the claimant’s appeal in relation to Disability Living Allowance (DLA) and had decided that the claimant was not entitled to either component of that Allowance from and including 2 July 1999.  Included in the Tribunal’s reasons for its decision (dated 22.6.00) was the following sentence: -

“No claim was presented in relation to lower rate mobility component”

Included in the Tribunal’s Record of Proceedings (dated 22.6.00) was the following: -

		“[Claimant’s solicitor] high mobility, middle care for day.”

There then followed a lengthy note of what had taken place at the hearing.

4.	The claimant’s application to me for leave to appeal was contained in an OSSC1 form dated 23 October 2001.  The grounds given were as follows: -

“The Tribunal decision seems to imply that if an application had specifically been made for the Low Rate Mobility Component of the benefit then it would have been granted.  It is submitted that the failure of the Tribunal to consider any other rate of the benefit, other than what was specifically applied for is a departure from the normal practice of Tribunals of this nature in general and is wrong in law.”

5.	In his letter of 28 January 2002 Mr Toner supported the appeal stating: -

“I submit that the tribunal, by not giving proper reasons for not awarding the lower rate mobility component, failed to discharge its inquisitorial function.  This can be compared to the reasons given in respect of the care component where it can be seen that the tribunal clearly showed that it considered entitlement to the lowest rate of that component.  I therefore support this application.”

6.	I issued a Direction to the parties on 12 April 2002 seeking written submissions on the application to this case of Article 13(8)(a) of the Social Security (Northern Ireland) Order 1998 and of Tribunal of Commissioners’ decision C15/99-00(IS)(T).  Mr Toner replied on 23 April 2002. He referred to the provisions of Article 13(8)(a) which are to the effect that when deciding an appeal, a Tribunal need not consider any issue that is not raised by the appeal.  He referred to the DLA claim form dated 2 July 1999 and to pages 3 & 4 thereof which, in his submission, indicated that the claimant was seeking both high and low rates of the mobility component.

7.	On page 3 of that form the claimant indicated that she suffered from arthritis, severe asthma producing breathlessness and had received 45 per cent burns in an accident.  She stated her walking ability before severe discomfort was 20 metres/yards in 5 minutes and that she would need someone to help.  On pages 4 & 5 she stated she needed someone with her outdoors.  Her problems were stated to be that she got lightheaded and it was always “desirable” to have someone with her because of her disabilities.  She stated that she fell fairly infrequently (on one occasion coming out of the door of a caravan when she had broken her leg) but got lightheaded often.  Sometimes she could get up herself after a fall, it depended on the fall.

8.	Mr Toner referred to the claimant’s letter dated 27 September 1999 seeking a review and to her grounds of appeal to the Tribunal, received on 1 March 2000 the latter being as follows: -

“I wish to appeal the decision refusing me DLA as I feel my health is such that I require help with getting around.  I am a chronic asthmatic and I am constantly out of breath.  I am unable to walk for any distance due to my breathlessness I always require either a taxi or a friend/relative to transport me from A-B.  I also suffer from depression and arthritis as a result of which I need help in attend [sic] to my personal needs.”

9.	Mr Toner submitted that the claimant, since she made her claim for benefit, had contended that she was entitled to a rate of the mobility component.  He submitted that in light of that and because it was not recorded in the decision that she no longer wished to pursue the lower rate mobility component, it was incumbent on the Tribunal to pursue its inquisitorial function and make findings on that issue.  He submitted that the case raised a similar issue in that respect to that in C15/99-00(IS)(T).  He referred to decision C12/01-02(IB) paragraph 21 as regards the ambit of an appeal.

10.	The claimant’s solicitors forwarded a submission dated 8 May 2002.  This submission was to the effect that –

(a)	Article 13(8)(a) was discretionary not mandatory.  I therefore had power to consider lower rate mobility component.

(b)	It was not conceded that the possible entitlement to the lower rate of the mobility component was not raised at the hearing.  In support of this, affidavits by Miss M (Solicitor) and Mrs C (the legally qualified member of the Tribunal) sworn in connection with Judicial Review proceedings were attached. I will comment later on these documents. The judicial review proceedings were, I understand, alternative remedies not having been exhausted.

(c)	It would be manifestly unjust and inequitable and in breach of Article 6 of the European Convention on Human Rights for me to fail to consider the issue.

(d)	Tribunal of Commissioners’ decision C15/99-00(IS)(T) and in particular paragraph 26 thereof supported the view that the lower rate mobility component should have been considered by the Tribunal.  Even if I found it not to be expressly raised it was certainly implicitly raised.  In accordance with the Tribunal’s duty and responsibility the issue should have been dealt with as had been Tribunal practice in the past.

11.	I arranged a hearing which was attended as mentioned above.

12.	At hearing Ms McGinley submitted that it was conceded by the Department that there was an implicit issue of entitlement to lower rate mobility component raised on the evidence before the Tribunal.  She submitted that this was so even if it was not accepted that the issue was expressly raised.  In this connection Ms McGinley referred to the DLA claim form already mentioned and to the review letter of 24 September 1999 already mentioned and to Miss M’s affidavit which she informed me was prepared on the basis of notes made in preparation for the hearing and which, submitted certainly indicated an intention to raise the lower rate of the mobility component.  Ms McGinley also stated that her client did not concede that there was no explicit reference at the Tribunal hearing to the low rate of the mobility component but contended that in any event the issue was implicitly raised from the evidence.

13.	Ms McGinley submitted that the affidavit of Miss M stated that references were made at hearing to lower rate mobility component and the affidavit of Mrs C indicated that they were not.  She informed me that no formal notes were taken by Miss M at the Tribunal hearing (the affidavit being prepared on the basis of pre-hearing preparation notes) whereas they were taken by Mrs C.  Ms McGinley admitted that in the absence of firm evidence to the contrary she could appreciate that it was difficult to conclude that representations were made at the Tribunal hearing relating to the lower rate of the mobility component.  However, she submitted there was no indication that the claim for the lower rate of the component was being dropped.  The Department appeared to accept that the claimant had originally contended that she was entitled to the lower rate and had not dropped that claim.  In the absence of express dropping of the claim it was fair to say it had not been dropped.  Ms McGinley further submitted that even without express reference at hearing there was sufficient in the papers to raise the issue of the lower rate mobility component.

14.	Mrs Gunning did not support certain of the concessions made by Mr Toner nor his interpretation of the case law.  In relation to the question of whether or not the issue of the lower rate mobility component was raised at hearing, in her submission, there was a conflict between the affidavits of Miss M and Mrs C.  The said lower rate was not raised by the grounds of appeal to the Tribunal nor was any submission on it noted in the Record of Proceedings.  In Mrs Gunning’s submission there was not enough evidence in the papers and at hearing to indicate that the Tribunal should have considered the mobility component. Mrs Gunning did, however, observe that in general it would be desirable to have an express recording of whether or not, in the event of a higher rate not being awarded, a representative was intending to make a case for the lower rate.  Mrs Gunning did not support the appeal.

15.	In Mrs Gunning’s submission, entitlement to the lower rate of the mobility component involved the condition of being able to walk but needing guidance or assistance most of the time on unfamiliar routes.  If it was contended that those conditions were satisfied then it was unlikely that a case could be made for the higher rate of the component.  Mrs Gunning submitted that decision C15/99-00(IS)(T) could be distinguished from the present case.  In that case the fundamental issue of a resulting trust was raised by the evidence at hearing whereas here the lower rate of the mobility component was not raised by the evidence at hearing.  

16.	I reserved my decision for 7 days and informed the parties that I was so doing in order that Ms McGinley not be taken by surprise and to allow time to put in any further responses she might wish to Mrs Gunning's submissions as these no longer supported the Department’s previous concessions.  No responses were received.  Ms McGinley had indicated at hearing that she was in a position to deal with Mrs Gunning’s submissions and, as indicated above, she did so in a most thorough manner.

17.	In order that I can decide what actually happened at hearing I come to peruse the affidavits. Mrs C’s affidavit accords with the Record of Proceedings.  The Record is comprehensive and I find it difficult to accept that had there been any submission in relation to the lower rate of the mobility component this would not have been noted.  In addition Miss M, as counsel has indicated, did not take formal notes of what was said at the hearing. Mrs C did make a contemporaneous (albeit not verbatim) record.  In addition I find it difficult to accept that all three members of the Tribunal would have missed a submission on the lower rate of the mobility component.  Ms McGinley has informed me that Miss M’s affidavit was prepared on the basis of notes made in preparation for the hearing.  The affidavit swears to a submission on the lower rate of the mobility component having actually been made at the hearing.  If the affidavit was prepared on notes made prior to the hearing there is room for a difference between what submissions it was intended to make and what were actually made.   It is also worthy of note that the application for leave to me indicates that the error was thought to be that the Tribunal had failed to consider a rate “other than specifically applied for”.  I find this ground difficult to comprehend if in fact the rate had been specifically sought. That being so and in light of the matters mentioned above I consider the affidavit to be inaccurate as to what took place at the hearing as regards the lower rate mobility component and I accept Mrs C’s affidavit as being accurate.

18.	The record of proceedings and Mrs C’s Affidavit being accepted as reflective of what took place at the hearing I must therefore determine whether the Tribunal erred in any way in not dealing with the mobility component.  This essentially involves looking at the evidence and background to the case in order that it can be ascertained whether or not the issue of the low rate of the mobility component was so apparent that the Tribunal should have dealt with it despite the fact that in response to Mrs C’s question as to the precise nature of what was being claimed the claimant’s representative did not indicate that she was seeking the lower rate of the mobility component.  The claimant indicated in her claim form that she was in need of someone with her when she was outdoors because she got light-headed and fell because of this.  The evidence on the claim form indicates that on one occasion the claimant injured herself coming out of the door of her caravan and might fall or stumble coming out of the door of a caravan.  She indicated that sometimes she could get up herself, it depended on the fall.  She stated that she fell fairly infrequently but got light-headed often.  The claimant’s general practitioner indicated that the claimant had no impairment of gait or balance and needed no physical support, that there was no history of falls, that no attention or supervision was required from another person to enable her to get around in unfamiliar surroundings most of the time.  At hearing the claimant indicated that she had arthritis in her hip and left arm and had fractured (it is not clear which) one of these in an old accident about 12 years ago.  She stated that if she did a lot of walking she got “black vision over the eyes”.  She stated that she would get a lift into town and do a lot of walking and would “loose” herself and get stiffer and stiffer and get dizziness and weakness.   She indicated that she fractured her hip and arm 12 years ago.  She stated that she could walk a bit and would then get breathless and would have to sit down and stand and then go on for a while.  She said that she got dizziness, her most troublesome complaint was breathlessness and that she would lose the power of her back and could not walk through it.

19.	These are the parts of the evidence which appear to me to have most possible relevance to the lower rate of the mobility component though I have considered all the evidence in the case.  There was a request for a review in a letter dated 24 September 1999 when the claimant asked for a review of the decision on Disability Living Allowance in the following terms:

“I feel I should have been awarded some care component and mobility.  I have severe asthma and arthrites (sic) in my legs.  I cannot cook any meals and need help with getting around.  I hope to hear from you with a favourable decision”.

20.	The Department disallowed the claim for DLA and the claimant appealed to the Tribunal. The form on which the claimant appealed (which it appears was received on 14 February 2000) simply stated that medical evidence would support the entitlement to Disability Living Allowance.  No other grounds were given.  When asked for grounds the claimant replied on 29 February 2000 as follows:

“I wish to appeal the decision refusing me DLA as I feel my health is such that I require help with getting around.  I am a chronic asthmatic and I am constantly out of breath.  I am unable to walk for any distance due to my breathlessness I always require either a taxi or a friend/relative to transport me from A - B.  I also suffer from depression and arthritis as a result of which I need help in [sic] attend to my personal needs”.

21.	Even if it is accepted that there was a claim made and rejected for the lower rate mobility component, it does not appear to me that either of these appeal letters or the review letter raised the issue of the low rate of the mobility component.  The Tribunal is not obliged to consider any issue not raised by the appeal (Article 13(8)(a)). However, if an issue is so clearly raised by the evidence that it is an evident issue in the case, the Tribunal would have to deal with it.  I must therefore ask myself whether the evidence as a whole raised the issue of low rate mobility component so that the Tribunal had to consider entitlement to that component despite the fact that it was not raised as an issue in the appeal correspondence nor by the representative at hearing.  

22.	The Tribunal here was faced with a situation where the claimant in her claim form had stated that she required some assistance because she fell and her general practitioner stated that he had no recorded history of her falling.  It appears apparent that the Tribunal did explore to some extent the issue of falls and light-headedness.  The claimant informed the Tribunal at hearing that she went light-headed when she stretched her hands up and when she was standing up.  The Tribunal explored the issue of the falls but it appeared that the only fall which had caused an injury was some 12 years ago.  The claimant indicated also that she did get dizziness but that the greatest difficulty which she had was breathlessness.  The bulk of the evidence given with relation to the mobility component appears to me to relate to limitations in walking distance.  

23.	It is notable that the claimant made no mention at the hearing of anyone assisting her in walking or watching over her when she walked.   That is unlike the situation in C15/99-00(IS)(T).  In that case both before and at the hearing the deceased’s daughter gave evidence which clearly raised the issue of beneficial ownership of the public house which was a fundamental issue in the case.  In the instant case the evidence at hearing does not clearly raise the issue of the lower rate mobility component and indeed there are parts of the evidence at hearing about walking in town which would leave the impression that the claimant did not always have company when she walked out of doors.

24.	As the Tribunal of Commissioners stated at paragraph 26 of the above decision:

 “We take the view that a Tribunal must have a reasonable expectation that the important and fundamental issues in a case will be brought to its attention in any proceedings where there is professional representation on behalf of a claimant”.  

The Tribunal of Commissioners also stated:

“However, somewhat reluctantly we conclude that if an issue on the evidence, is explicitly or implicitly before a Tribunal, even though not raised by the professional representative, it is the Tribunal’s duty and responsibility to deal with such an issue”.  

In that case the Tribunal of Commissioners concluded that the Appeal Tribunal had erred in law by not dealing with the issue of beneficial ownership of the public house in question.  The Tribunal of Commissioners stated:

“Had the matter not been so clearly apparent from the deceased daughter’s evidence both before and at the hearing, our conclusion might have been otherwise as, in the exercise of it’s inquisitorial role, a Tribunal is entitled to expect all live issues to be raised at hearing by professional representatives.  A Tribunal may also be entitled to conclude that, if a professional representative does not raise an issue that issue has been dropped.  It is only because the deceased’s daughter herself again alluded to the matter at hearing that we consider the issue remained “live” in this case.”

25.	Applying that paragraph to the present case it does not appear to me that the claimant alluded at hearing to any need for guidance or supervision or even accompaniment when walking out of doors whether on unfamiliar or unfamiliar routes.  Looking at the evidential background the Tribunal was perfectly entitled to consider that the issue of the low rate mobility component had been dropped.  The general practitioner’s evidence alone would have placed any entitlement in very considerable doubt and indicated why the claim was presented as it was at hearing.  The evidence and presentation at hearing did not indicate that the issue remained “live”, rather the reverse.  The Tribunal was in my view entitled to its conclusion that entitlement to the lower rate of the mobility component was not raised as an issue.  It did not err in this respect.

26.	I would, however, for the benefit of future Tribunals state that it appears to me that it would be well that this matter be put beyond any possible doubt, by an express enquiry being made and recorded as to whether or not any claim for the lower rate of a mobility component is being made or has been dropped, as the case may be.  If it is recorded that such a claim is not made or is dropped there will be no room for argument.

27.	Several issues remain.  The claimant’s representatives made mention of a practice of considering and at times awarding lower rates of the care component even though a claim was made for a higher rate.  The care component is in many respects different from the mobility component in that depending on the degree of attention or supervision which a Tribunal finds to be required, it may award the lower, middle or higher rate of that component.  The requirement is for attention or supervision and while the Tribunal may not fully accept a claimant’s evidence in relation to the amount of attention or supervision which is required, it may nonetheless consider that the evidence does establish that a lower amount is required. It may therefore reject a higher rate but award a lower rate.  The mobility component is somewhat different.  As Mrs Gunning indicated the conditions of entitlement for the lower rate mobility component and the higher rate of that component do not overlap.  The lower rate is based on a requirement for guidance or supervision when walking out of doors disregarding the ability to walk unfamiliar routes.  The higher rate is based on walking limitations with certain exceptions relating to severely mentally impaired persons which were not in question in this case.  That being so, I cannot see any reasonable expectation on the part of a representative or claimant that a Tribunal will automatically (and in the absence of an issue being raised on appeal) consider the lower rate of the mobility component if it does not award the higher rate.  It is all a matter of the evidence.  Article 13(8) is discretionary. That means that if an issue is not expressly raised by the appeal or clearly apparent as live from the evidence a Tribunal is not obliged to consider it. In this case neither situation applied and there was no obligation on the Tribunal to consider the lower rate mobility component.  I can see no error on the Tribunal’s part in this respect. 

Nor do I accept that there is any general practice for Tribunals to deal with issues not expressly raised by the appeal nor apparent as live from the evidence as a whole.  Article 13(8) relieves a Tribunal of any obligation so to do.  I can see no reason why Tribunals as a whole would adopt this practice, no evidence has been produced to support the contention made in this respect and Mrs C disputes it.  I can ascertain no error on the Tribunal’s part in this respect.

The issue of Article 6 of the European Convention on Human Rights was raised by the claimant’s solicitors in their response to my direction.  It has not been pursued further.  For completeness, however, I would state that it does not appear to me that there has been any breach of the right to a fair trial in this case.  The express and apparent issues raised were dealt with.  The right to a fair trial does not require a Tribunal to deal with issues not raised to it.  I can ascertain no error in this respect.  

The original grounds of appeal to me included the sentence that: -

The Tribunal decision seems to imply that if an application had specifically been made for the Low Rate Mobility Component of the benefit then it would have been granted.”

In my view this is completely incorrect.  There is no indication by the Tribunal that it would have awarded the lower rate mobility component if a claim had been presented for it.  Indeed when one peruses the accepted evidence in the case there are strong indications that an award would not have been likely.  More importantly, I have little doubt that, had the Tribunal considered that entitlement to the said lower rate was established by the evidence, it would have made such an award even in the absence of an express presentation to that effect.  There is no indication of bias or perversity on the Tribunal’s part.  The Tribunal is an adjudicating body.  It is not concerned to award benefit where the accepted evidence does not establish entitlement nor to refuse benefit where the accepted evidence establishes entitlement.  Far from implying an acceptance of the claimant’s underlying entitlement to the lower rate of the mobility component, the Tribunal’s decision appears to me to indicate that the accepted evidence as a whole did not even raise a possibility of entitlement which needed to be explored in the absence of an express presentation raising the issue.  I consider the Tribunal was entitled to that conclusion and that it did not err in law in that respect.

28.	For the reasons set out above I dismiss the appeal.

(Signed):  M F BROWN

COMMISSIONER

15 NOVEMBER 2002