[2006] NISSCSC C20_05_06(DLA) (28 April 2006)

Decision No:  C20/05-06(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 3 March 2005

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by me, by the claimant against a tribunal decision dated 3 March 2005.  My decision is given in the final paragraph. The background to the case was that the claimant, who is a right leg amputee with an artificial limb, had been in receipt of an award of the higher rate of the mobility component and the lower rate of the care component of Disability Living Allowance (DLA) from and including 26 January 2001. This was the last of a series of awards of DLA though there had been a disallowance and the said award was made on appeal.  The Department made a supersession decision on 31 October 2003 on the basis that a relevant change of circumstances had occurred and the award of DLA was terminated from 31 October 2003.  The claimant appealed to the tribunal.  The tribunal upheld the Department’s decision and decided that the claimant was not entitled to either component of DLA from and including 31 October 2003.  The claimant appealed to a Commissioner.

2.	The tribunal did not have before it the findings of fact on which the earlier award of the mobility component had been based.   The earlier award was made by a tribunal (the 2001 tribunal) decision dated 9 November 2001.  The claimant had appealed to the 2001 tribunal against a Departmental decision superseding an earlier award and disallowing from the date of supersession on 26 January 2001. The 2001 tribunal had before it evidence from the claimant that his walking ability without severe discomfort was 25 yards in 30 seconds to one minute.  It also had a statement from the claimant to the effect that he could only walk about 20 yards before the onset of severe discomfort and that he experienced pain even on standing.  It also had before it a general practitioner’s report dated 19 January 2001 which stated that the claimant could walk 150 to 200 yards in about 2 minutes with good balance before the onset of severe discomfort.  As stated earlier there is no record of the factual conclusions of the 2001 tribunal in relation to the higher rate of the mobility component other than that it concluded that the claimant remained entitled to it.  It did, however, conclude that there had been a relevant change of circumstances in relation to the care component and concluded that the claimant was no longer entitled to the highest rate of the care component but was entitled to the lowest rate due to his inability to prepare and cook a main meal for himself.  The claimant sought supersession on three occasions after the 2001 tribunal’s decision.  He sought an increased award.  On the first two occasions the award was not changed.  On the third occasion the Department, following a medical examination and report, superseded of its own volition and ended the DLA award by the decision of 31 October 2003.  The claimant appealed that decision to the instant tribunal which, as mentioned earlier, upheld the Department’s decision.

3.	The grounds of appeal to me were set out on an OSSC1 form dated 13 May 2005. On that form the claimant set out his grounds of appeal as being that his condition had deteriorated and that he felt that his case had not been properly assessed.  However, I granted leave on the ground that an arguable issue arose as to whether a relevant change of circumstances had been identified.  Relevant change of circumstances was the ground upon which the supersession decision of 31 October 2003 was based.

4.	I have had the benefit of written observations from the Decision Making Services branch of the Department dated 5 August 2005 and 21 October 2005.  I held an oral hearing of the appeal which the claimant attended unrepresented and which Mrs Gunning attended to represent the Department.  I am grateful to Mrs Gunning for her assistance in this matter.  My decision is given in the final paragraph.  

5.	At hearing it became apparent that the claimant, while quite capable of forcefully putting forward his case, was unable to comprehend the difference between a rehearing on the facts and an appeal to a Commissioner.  He also seemed to find some difficulty in understanding that I could only deal with the situation as it was at the time of the Departmental decision appealed to the tribunal.  I repeatedly offered him the opportunity of an adjournment to have a representative attend.  He had originally had a representative but the representative was unable to attend the hearing and the claimant wished to proceed without him.  The claimant refused this opportunity indicating that he wished to proceed and have the matter done with as he had “nothing to lose” as he was not receiving DLA.  I explained to him that he did have something to lose in that if he was to win his appeal he could have DLA back-dated to the date of the Department’s decision whereas if he lost it he could not.  I asked him again in light of that if he wished to have an adjournment and he again reiterated that he did not but wanted the matter finished with.  At the end of the hearing, having heard what the claimant had to say and having heard Mrs Gunning’s submissions, I indicated that I would reserve my decision for a week to let the claimant consider whether he wished to have an adjournment to have a representative attend.  If he did so wish he was to let the office know in writing.  He has not done so.  I therefore proceed to make my decision.  I proceed in this matter as there appears to be no purpose in adjourning.  The claimant indicated that he did not wish the appeal delayed any further and was anxious to have his case dealt with.  I am not satisfied that my adjourning would serve any purpose.

6.	At hearing the claimant reiterated that his circumstances had not changed for the better.  He found it incomprehensible that in those circumstances he should have lost an award which he had previously had.  

7.	Mrs Gunning submitted that the tribunal decision was not in error of law.  At hearing she withdrew a concession that had been made that there was an error by the tribunal in relation to the care component.  I explained this matter to the claimant who still wished to proceed with the appeal.  Mrs Gunning submitted that the 2001 tribunal must have accepted that the claimant could walk only 20 to 25 yards in 30 seconds to one minute before severe discomfort.  She submitted that it was very unlikely that the 2001 tribunal would have made an award of the high rate of the mobility component had it accepted that his walking ability was the 150 to 200 yards set out in the factual report dated 21 January 2003 of the claimant’s general practitioner (GP).  Mrs Gunning submitted that the 2001 tribunal, which was experienced, must have accepted the claimant’s own evidence in preference to that of his GP.  

8.	As regards the care component Mrs Gunning submitted that the instant tribunal had accepted the Examining Medical Practitioner (EMP) report dated 10 October 2003.  That report entitled the tribunal to conclude that the claimant was able to prepare and cook a main meal for himself.  Mrs Gunning submitted further that the tribunal had clearly explained its decision and had found grounds for supersession.  Its decision was based on the factual evidence and what was contained in the GP records and the tribunal had fully explained its decision.  Mrs Gunning submitted that there were some minor technical points that could be made though she would be arguing against them and submitted that overall the decision was correct.

9.	The history of this claimant’s claims for DLA is somewhat convoluted. There have obviously been differing views as to his entitlement to DLA and the rates thereof.  It is necessary to point out that the relevant change of circumstances ground for supersession is not confined to a change in the underlying condition from which a claimant suffers.  It can be constituted by a reduction in care or mobility needs (R1/05(DLA)).  To give an example an amputee may acquire an improved prosthesis or improved tolerance of or use of a prosthesis resulting in better mobility.  

10.	The instant tribunal did not have before it the full statement of reasons of the 2001 tribunal.  This appears to be because neither the Department nor the claimant had requested same and same had not been issued.  Nevertheless, I consider, with relation to the care component that the grounds for supersession were clearly established.  The EMP report, which was accepted by the tribunal, indicated that the claimant had full function in both upper limbs, was able to walk about his flat unaided, was not in need of physical support when walking out of doors, could peel and chop vegetables, use taps, use a cooker, cope with hot pans, could benefit from the use of a perching stool in the kitchen, was fully mentally competent.  The tribunal concluded that if the appellant felt apprehensive about using hot pans (this appears to have been because he was apprehensive of falling if his artificial limb caught on the ground) he could use a straining spoon.  The tribunal also made mention of the fact that the claimant’s GP confirmed no falls although the EMP referred to falls.  It was also noted in the EMP report that the claimant could walk 100 yards before severe discomfort.  The claimant also himself informed the tribunal at hearing regarding cooking that he would “throw it in the microwave” and that his partner prepared the vegetables etc.  He stated that he would not take anything hot out of the oven in case he would drop it and that he could turn taps on and off.  He stated that even bending over to wash a cup he would find a problem in his back and artificial leg.

11.	The tribunal reasoned as follows:

	“…  We adopt the clinical findings of the Examining Medical Practitioner and we found nothing in the medical records to cast any doubt on same.  The Examining Medical Practitioner referred to falls but we note from the General Practitioner’s factual report that General Practitioner confirms no falls and there is nothing in the medical records to suggest that same are a problem.  Whilst General Practitioner noted that in his opinion Appellant would need some help on stairs the Examining Medical Practitioner is of a different opinion.  Appellant’s claim form mentions particular problems with ‘stairs’ although he later states that his flat is ‘fully geared to disability with all accessible requirements being met’.

	The Appellant is mentally competent, aware of dangers and although he mentions dizziness the medical records do not indicate any significant problems with fits, falls, blackouts, comas, dizziness or such likes.  We believe that he could safely manage the stairs unaided, holding a banister and taking his time.

	As for preparing a cooked main meal for himself we note the General Practitioner’s opinion but given the clinical findings we have difficulty understanding why the General Practitioner thought that Appellant could not, for example, use a tap.  Peeling/chopping can be performed sitting.  We prefer the Examining Medical Practitioner’s opinion as we believe, weighing up all the evidence that it is the more reliable.  Appellant is coping well with his artificial limb and as General Practitioner confirms has really no problems in this regard.  If Appellant feels apprehensive about using hot pans he can of course use a straining spoon for removing hot items from a pan.  A jug can also be used for filling and removing liquids.  We do not think that pans for one person are so heavy as to be beyond appellant’s ability.

	Weighing up all the evidence including appellant’s own evidence as to frequency of pain in his knee, duration and the lack of medical evidence in this regard, it is the unanimous opinion of the Tribunal, taking all medical complaints into account, that there has been a relevant change in that Appellant no longer satisfies the criteria.  We find that the appellant could reasonably attend to his bodily functions unaided, day and night.  He does not reasonably require continual supervision throughout the day, or, any watching over at night to avoid any substantial danger.  He can prepare a cooked main meal for himself if he has the ingredients.  Accordingly, it is with regret that, despite the ordeal Appellant has been through in having his leg amputated and taking all his complaints into account, we are unable to reinstate previous award or make any award as we find none of the criteria in S72(1)(a)(i)/(ii), (b)(i)/(ii), (c)(i)/(ii) Social Security Contributions & Benefits (Northern Ireland) Act 1992 satisfied.

Department has discharged onus of proof.”

12.	I consider that on the evidence the tribunal was entitled to reach the conclusion that the grounds for supersession existed in that the claimant was as and from 30 October 2003 capable of preparing and cooking a main meal for himself. His care needs had therefore lessened and this was a relevant change of circumstances. I consider that the tribunal was also entitled to the conclusion that the claimant did not satisfy any of the other conditions for entitlement to the care component at any rate.  This gives grounds to supersede the decision of the tribunal on 9 November 2001.  However the superseding decision must flow from the relevant change.  It is necessary therefore to consider if there was a change relating to the mobility component.

13.	The instant tribunal was, in my view, entitled to its conclusion that the claimant could walk for at least 100 yards in a reasonable time, speed and manner before severe discomfort and that this did not constitute virtual inability to walk.  The EMP report of 10 October 2003 expressed the view that the claimant could walk at least 100 yards before the onset of severe discomfort and I note that the claimant himself signed a statement in that report that he would walk to and from the chip shop which was 50 yards away from his home and would use his stick to do so.  He also stated he would not go far on his own, as far as the paper shop.

	At the hearing before the tribunal on 3 March 2005 the claimant stated that he could on a good day walk “a fair bit, round Tesco and out again.  A lot of the time I only walk the length of the room to the car.  Times could not do that – knee, but most of time okay other times pain through it and I’d have to hold on.  Seems to happen more in real bad cold spell in winter or damp weather.  Last prolonged spell of 5/6 days was round end   January.”

14.	At the hearing before me the claimant contended that he had told the EMP that he would only walk to the chip shop in an “extreme emergency”.  I note he did not make this contention to the tribunal which cannot be blamed for not dealing with it.  I note further that he signed the EMP report as having been read back to him and that he agreed with the information in it which made no mention of such extreme emergency.

15.	In this case, I am unable to ascertain that the tribunal ever turned its mind to what was the relevant change of circumstances.  It is not apparent that the papers on which the earlier award was based were ever before the members of the tribunal.  The note on the submission to the tribunal was that they were held by the clerk.  It is by no means always necessary to know the basis of a DLA award to conclude that there has been a relevant change of circumstances.  The example of the low rate of the care component here is a case in point.  The mere consideration of the conditions of entitlement at the time of the supersession decision may itself show as they did in this case that there has been a relevant change.  Similarly a claimant who is not virtually unable to walk is not to remain in receipt of the high rate of the mobility component merely because the factual details of an earlier award which was based on virtual inability to walk are not available.  The present fact situation may show that a relevant change must have taken place because, had the facts at the date of award been as they subsequently were found to be, an award would not have been made.  However a decision cannot be altered (in the absence of error of law) merely because a different decision-maker took a different view of the same facts (C17/03-04(DLA)).

16.	In the present case, as regards the mobility component, the instant tribunal’s finding was of a walking ability of at least [my emphasis] 100 yards before the onset of severe discomfort.  As I indicated above 100 yards is a walking distance (assuming reasonable factors of speed, manner and time of walking) which would entitle a tribunal to conclude that a claimant was not virtually unable to walk.  It is unlikely that this amount of walking ability could reasonably be considered as virtual inability to walk though it must be remembered that Parliament has not seen fit to prescribe actual distances, times etc which can or cannot qualify as being virtually unable to walk. However (R(M)1/91) the baseline is total inability to walk which is extended to take in people who can technically walk but only to an insignificant extent.  Therefore, it is only very, very severe walking restrictions which will qualify as virtual inability to walk.  I do not think that the above-mentioned walking ability could be so considered and it is unlikely that a tribunal would consider such walking ability to be virtual inability to walk.  

17.	It is implicit in the Department’s decision (which the tribunal upheld) that the relevant change of circumstances relating to the mobility component was considered to be an improved walking ability.  The tribunal certainly, in my view, was entitled to conclude that the walking ability without severe discomfort was at least 100 yards at a reasonable speed, in a reasonable manner and for a reasonable period of time.  I am, however, unable to ascertain from the reasoning that the tribunal gave any consideration to whether this was a change from the earlier walking ability.  That, in a case such as this, is an error of law.

18.	As regards the evidence before the tribunal as to the situation at the time of the award there is a statement in the Department’s submission to the tribunal as follows:

	“The papers relating to the previous awards/disallowance are held by the Clerk to the Tribunal should any party to the proceedings wish to view them.”

	The record of proceedings records the documents considered as follows: 

		“Appeal submission papers.
	General Practitioner records.”

	There is no indication that the tribunal ever examined the papers relating to the previous award and no indication that the tribunal ever turned its mind to what were likely to have been the facts on which the award was based.   It has certainly reached the implied conclusion that the walking ability has improved from previously but it has not explained how it reached that conclusion.  In this case that renders the reasons inadequate and the decision is therefore in error of law.  

19.	I come then to decide whether or not I should give the decision which the tribunal should have given.  I have decided to do so.  The matter has gone on long enough and the claimant is anxious that it be finalised.  I accept Mrs Gunning’s submission that the 2001 tribunal concluded that the claimant’s walking ability using his suitable prosthesis before severe discomfort was 20-25 yards in 30 seconds to one minute with a reasonable gait.  Had it accepted his GP’s view, it is unlikely to have concluded that he was virtually unable to walk.  I accept the examining doctor’s report of 10 October 2003 and that the claimant’s signed statement thereon is an accurate and complete note of what he told the doctor. The claimant was, using his prosthesis which was suitable for him, able to walk out of doors without severe discomfort for at least 100 yards at a reasonable speed, for a reasonable time and in a reasonable manner and the exertion of so doing presented no risk to his health nor any danger to his life.  I find that at that time he did walk to the paper shop and (not just in emergencies) to the chip shop (some 50 yards from his home) and back.   

20.	As regards the lower rate of the mobility component, I accept that, when in areas far from his home town (he mentioned beyond 3-4 miles from his home town) the claimant would suffer anxiety.  This appeared to be whether walking or otherwise.  It does not appear that this anxiety came on within 3-4 miles of his home town whether he was on unfamiliar routes or otherwise.  As regards falls the claimant, being of normal intelligence and aware of dangers could take precautions to minimise their occurrence though I accept they did occasionally occur.  He could also take steps to minimise the effect of falling by holding out his hands etc.  Overall it does not appear that the claimant was unable to take advantage of his faculty of walking without guidance or supervision most of the time disregarding any ability to use familiar routes on his own.  He might prefer to be accompanied but he did not need to be.  He did not satisfy the conditions for low rate mobility component. 

21.	Does this improvement in walking ability amount to a relevant change of circumstances?  Decision R(I)56/54 at paragraph 28 states:

	“A relevant change of circumstances postulates that the decision has ceased to be correct.”

	In the case of Wood v Secretary of State for Work and Pensions (reported as R(DLA)1/03) at paragraph 23 Rix LJ (giving, on this point, the only judgment of the court) in paragraph 23 referred with approval to the dictum of Lightman J R v Social Security Commissioner, ex parte Chamberlain (unreported 7 July 2000) that decisions “enjoy a degree of finality” since they can only be altered “if one of the statutory grounds stipulated are satisfied”.

22.	In Cooke v Secretary of State for Social Services (reported as R(DLA)6/01) Hale LJ at paragraph 12 dealing with the facts of that case considered that a tribunal’s finding that walking ability without severe discomfort had improved from nil to 50 metres then a brief rest and another 50 metres had not erred in law in concluding there to have been a change in circumstances and was entitled to conclude that the claimant was no longer entitled to the higher rate of the mobility component.  I consider the improved walking ability to be a relevant change of circumstances and that the claimant was not at 31 October 2003 virtually unable to walk.

23.	I adopt the tribunal’s findings as to his ability to prepare a cooked main meal for himself at that time and as to the other rates of the care component.  With relation to the care component there was a relevant change of circumstances in that the claimant as at 31 October 2003 was able to carry out all the tasks involved in preparing and cooking a main meal for himself.  He did not satisfy any of the other conditions of the care component.

24.	While therefore the claimant technically wins his appeal, this is of no benefit to him as I am substituting my own decision to the same effect as that of the tribunal.  The claimant is adamant that his condition had not improved.  I have concluded that his walking ability and his ability to prepare a cooked main meal had by 31 October 2003 improved from what they were found to be by the 2001 tribunal on the basis of whose decision his award was made.  It is that tribunal’s findings on walking ability which are relevant.  If, in fact, the claimant’s walking ability was better than the 2001 tribunal found, this is something which operated in the claimant’s favour as he received the high rate of the mobility component for some years on the basis of those findings.  The Department’s supersession decision of 31 October 2003 is upheld.

(signed):  M F Brown

Commissioner

28 April 2006