Decision No: C44/99-00(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

	Application by the claimant for leave to appeal 
	and appeal to the Social Security Commissioner 
	on a question of law from the decision of
	Belfast Disability Appeal Tribunal 
	dated 18 March 1998

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application for leave to appeal by the claimant against the decision of a Disability Appeal Tribunal which held that the claimant was not entitled to the mobility component of Disability Living Allowance from and including 22 January 1997 but was entitled to the care component of Disability Living Allowance from and including 22 January 1997 for an indefinite period.  

2.	On 30 January 1997 the claimant made a claim for Disability Living Allowance stating that he suffered from severe low back pain.  On 5 March 1997 he was awarded the higher rate of the mobility component of Disability Living Allowance from and including 22 January 1997 for an indefinite period.  On 12 March 1997 the claimant applied for a review within the prescribed time limit and claimed entitlement to the care component of Disability Living Allowance.  There was no mention of the mobility component in this application.  On 30 May 1997 an Adjudication Officer reviewed the decision and awarded the lowest rate care component from 22 January 1997 until 21 January 1999 but also restricted the award of the mobility component (which was at the higher rate) to the same period.  On 11 June 1997 the claimant applied for a further review, making the point that he had significant care needs and also pointing out that he had been previously awarded higher rate mobility component for life.  On 29 September 1997 an Adjudication Officer refused to review the decision of 30 May 1997.  On 23 October 1997 the claimant made a further request for a review.  On 7 January 1998 an Adjudication Officer reviewed the decision of 29 September 1997 (namely that there were no grounds to review) but did not revise it.  The claimant then appealed.

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

		"1.	[Claimant] claimed Disability Living Allowance 22 
			January 1997 and was awarded higher mobility and 
			lowest care (main meal).  He suffers from low back 
			pain and depression.

		2.	He is able to walk 40/50 yards out of doors at a slow 
			pace but in a normal manner and reasonable time without 
			severe discomfort or risk to health.  Although he carries 
			two sticks, he does not use these to weight bear when 
			walking but to help him get out of chairs.

		3.	He does not need guidance or supervision to walk out of 
			doors most of the time on unfamiliar routes.

		4.	This has been the situation in all the above respects 
			since the date of claim."

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

		"1.	There were grounds before the Adjudication Officer to 
			review the existing award of Disability Living Allowance 
			on 29 September 1997, namely that the decision awarding 
			higher rate mobility component was erroneous in point of 
			law, in that the medical evidence clearly indicated 
			[claimant] was able to walk 40/50 yards without severe 
			discomfort.

		2.	The further medical evidence from the Consultant Orthopaedic 
			Surgeon before us today (report 4 December 1997) would seem 
			to support the General Practitioner's opinion (able to walk 
			40/50 yards before increasing pain would probably force him 
			to stop).  We prefer to accept the medical assessment of his 
			walking ability over [claimant's] own assessment which we 
			feel to be unrealistic - we note that the Examining Medical 
			Practitioner found [claimant's] statement of his needs was 
			not in keeping with the clinical findings ie that he had 
			significantly more mobility than as stated.

			We therefore find that his walking ability is and has since 
			the date of claim been as stated in the Findings of Fact.  
			Nor do we accept his contentions of deterioration - his 
			medication has over the relevant period remained virtually 
			unchanged and he has not advised his General Practitioner 
			of any increase in pain or decrease in mobility.

		3.	Despite [claimant's] contentions to need guidance or 
			supervision to walk outdoors, there is no medical evidence 
			to suggest or confirm such a need and we agree with his 
			General Practitioner that he has no supervisory needs and 
			does not need guidance or supervision to walk outdoors."

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

		"1.	There are grounds to review existing award.

		2.	Appeal disallowed.  [Claimant] is not entitled to Disability 
			Living Allowance (Mobility Component) from and including 22 January 1997."

6.	The Chairman made the following record of proceedings in relation to the mobility component:-

		"Chairman advised [claimant] of the possible risk to his existing 
		award in proceeding with the appeal.  [Claimant] is aware of this 
		and wishes to proceed.  He does not wish to have the case adjourned.

		[Claimant]:  I use two sticks to walk - provided by Health Centre - 
		had these about a year.  Basically use sticks for support getting up 
		from chair.

		I'm in pain all the time and would get severe discomfort after 10-20 
		metres.  I had MRI scan which showed some problems with discs.  I 
		was offered an operation at end of year to fuse bones at base of 
		spine.  I don't want the operation because of a problem in the past 
		on operating table.

		I take Voltarol for pain (up to 4 a day) and DHC (up to 4 a day).  
		I mostly take Prozac going to bed along with DHC and buy Paracetamol 
		for pain during the day.  I haven't gone to see my doctor to try to 
		get stronger painkillers.  Nothing further to add except that I don't 
		know why my General Practitioner didn't send my records."

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

		"1.	[Claimant] claimed Disability Living Allowance 22 January 1997 
			and was awarded higher mobility and lowest care (main meal).  He suffers from low back pain and depression.

		2.	He needs help to prepare a cooked main meal and to dress his 
			lower half.  He can get up out of a chair with the use of his 
			sticks and would be able to get up from the toilet the same 
			way as necessary.  He needs help to bath/shower and to replace 
			a bedcover should it fall during the night.  He is otherwise 
			able to attend to his bodily functions unaided by day and 
			night and has no needs for supervision by day or watching over 
			by night."

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

		"1.	There were grounds before the Adjudication Officer to review 
			the existing award of Disability Living Allowance on 29 
			September 1997, namely that the decision awarding higher 
			rate mobility component was erroneous in point of law, in 
			that the medical evidence clearly indicated [claimant] was 
			able to walk 40/50 yards without severe discomfort.

		2.	Although there were grounds to review, there are no grounds 
			to revise the existing award.  None of the available medical 
			evidence supports [claimant's] contentions regarding the extent 
			of his needs for care or supervision.  We accept and prefer the 
			medical opinion (particularly that of the Examining 
			Medical Practitioner) to [claimant's] own assessment.

			We therefore confirm the existing award.  It is appropriate to 
			limit the award in view of the possibility of change in his 
			condition."

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

		"1.	There are grounds to review existing award.

		2.	Appeal disallowed.  [Claimant] is entitled to Disability 
			Living Allowance (Care Component) from and including 22 
			January 1997 to 21 January 1999."

10.	The Chairman of the Tribunal made the following record of proceedings in relation to the care component:-

		"All parties present have seen General Practitioner AT16.  
		Chairman advised [claimant] of the possible risk to his 
		existing award in proceeding with the appeal.  [Claimant] 
		is aware of this and wishes to proceed.  He does not wish 
		to have the case adjourned.

		[Claimant]:  I need help to get out of bed - need rolled 
		over and helped to sit up.  I need help to get dressed and 
		get helped up to get to toilet.  I can't clean myself properly 
		after toiletting, need a shower.  Toilet is upstairs - can 
		manage OK or sometimes someone coming behind me.

		I feel my condition is getting worse over past couple of years.  
		Need help to use toilet now that I didn't need when I claimed.

		Claimant points out that these needs are referred to in claim 
		form.

		I need help with lower garments and help with coat.  I spend 
		day in house or sitting in garden.  Go down to caravan a lot.  
		Family and friends help me.  I couldn't cook because of pain - 
		when the numbness comes my legs leave me and I fall.  It can 
		vary between twice a day and 3 times per week.  I think I've 
		reported it to my General Practitioner.  Not needed any medical 
		attention as a result of a fall.

		Mr Whitney:  No questions or submission.

		[Claimant]:  I don't think the Adjudication Officer has ever 
		really considered letter.  My condition has got worse.  I buy 
		Paracetamol because I don't think the doctor gives me enough 
		medicine.  Medication was last changed 5/6 months ago when 
		Prozac was added and Brufen changed to Voltarol.  Nothing 
		further to add."

11.	The claimant sought the leave of the Chairman to appeal to a Commissioner but such leave was refused on 19 May 1998 by the Chairman.  The claimant then appealed to a Social Security Commissioner for leave.

12.	The basis of the claimant's application is that he considered that the Tribunal erred in law by considering his entitlement to mobility component rather than only considering his entitlement to the care component.  As a further ground of appeal he submitted that even if he could walk 40/50 yards (the distance specified by the Tribunal) he would still satisfy the entitlement conditions for the mobility component of Disability Living Allowance in light of the fact that there was evidence that he could only walk such a distance in constant pain.  The claimant made no further written submissions, other than those setting out his grounds of appeal, but he did agree in writing on 24 January 1999 that his application for leave to appeal should be treated as the appeal in this case.

13.	A hearing of the application for leave to appeal was held on 18 January 1999.  At the hearing the Adjudication Officer in attendance was Mrs Gunning.  The claimant was neither present nor was he represented.  Therefore, in coming to my decision in this case, I had the benefit of Mrs Gunning's submissions dated 21 September 1998, her oral submissions of 18 January 1999, additional written submissions dated 16 February 1999, which were made at my direction, and further written submissions from Mrs Gunning dated 7 October 1999.  These further submissions were sought by me specifically to enable Mrs Gunning to make a submission in relation to the relevance of any illegally obtained or tainted evidence, in light of Commissioner's decision C53/98(DLA) (dated 24 August 1999) which was potentially relevant to the present case.

14.	Mrs Gunning had originally submitted that certain evidence which would not have been obtained if the case had been handled correctly should have been disregarded by all subsequent authorities.  However, in light of the decision of Mrs Commissioner Brown in C53/98(DLA), Mrs Gunning now accepts that evidence which should not have been obtained at one stage in the adjudication process can be taken into account at the next stage if it is within the jurisdiction of the adjudicating authorities to do so.  

15.	The Adjudication Officer in her various submissions set out in substance that, in her view, the Tribunal had erred in law in making its decision.  In particular she submitted, inter alia, in her letter of 21 September 1998 as follows:-

		"On 5/3/97 the AO decided [claimant] was entitled to higher 
		rate mobility from 22/1/97 for life and not entitled to the 
		care component.  [Claimant] applied for review of that decision 
		on the basis he also had care needs.  Section 30(4) of the 
		Administration Act states 

		Where a person has been awarded a component for life, on a 
		review under section 28 above the adjudication officer shall 
		not consider the question of his entitlement to that component 
		or the rate of that component or the period for which it has 
		been awarded unless -

		(a)	the person awarded the component expressly applies for 
			the consideration of that question; or

		(b)	there has been supplied to the adjudication officer by 
			the Department, or is otherwise available to him, 
			information which gives him 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.

		The AO therefore was not permitted to consider the award of 
		mobility component unless

1.	[Claimant] raised it in his application for review or 

		2.	He (the AO) had information which gave him reasonable 
			grounds for believing entitlement to the component or 
			entitlement to it at the high rate or for life ought 
			not to continue.

		Section 31(6) of the Administration Act places similar restrictions 
		on tribunals.  In CDLA/13008/96 the Great Britain Commissioner held 
		that the words "information is available to the tribunal which gives 
		it reasonable grounds for believing that entitlement..." mean that 
		the tribunal cannot direct enquiries or the gathering of further 
		information to enable it to decide to go further.  A decision must 
		be made on the basis of the information available at the time.  
		The Commissioner went on to accept that the words "reasonable cause 
		for believing" imposed a low test and "..a decision to proceed will 
		not be made in error of law unless it is one that no reasonable 
		tribunal, properly directing themselves, could have come to" -see 
		paragraph 18.(20).  That decision is referred to and endorsed by 
		the Northern Ireland Commissioner in decisions C70/97(DLA) 
		and C12/98(DLA).  ...

		I submit the same principles apply to an AO dealing with a 
		claimant's application for review and relating those principles to 
		this particular case [and] I further submit that the "review" AO 
		on 30/5/97 was not permitted to consider the mobility component 
		unless he had reason to believe the award should not continue.  
		If he believed he had such information he was required to indicate 
		what that information was and then go on to consider entitlement 
		and, if entitled, the rate and period of the award of mobility 
		component.

		[Claimant's] application for review received on 12/3/97 did not 
		mention the mobility component.  In addition to the information 
		before the AO who made the award on 5/3/97 there was a report 
		dated 21/4/97 from an Examining Practitioner on [claimant's] care 
		needs which does not contain any information on [claimant's] walking 
		ability.  When awarding higher rate mobility the adjudication officer 
		had before him [claimant's] self - assessment stating "I am in constant 
		pain when walking" and evidence from [claimant's] GP stating that 
		he suffered from continuous back pain and could walk about 50yds on 
		level ground without severe discomfort.  The "review" AO, on 
		30/5/97, accepted that [claimant] was virtually unable to walk but 
		restricted the period of the award to 21/1/99, taking into 
		consideration [claimant's] age, the nature of his condition and 
		the current treatment.

		By altering the period of award the "review" AO must have been 
		satisfied that there was evidence in the case to indicate that 
		an indefinite award was not appropriate and there would be some 
		change in [claimant's] condition by 21/1/99.  However there is 
		nothing in the decision to indicate what information gave ground for 
		the AO to consider the mobility component under sec 30(4) and to go 
		on to alter the period of the award.  Accordingly I submit the 
		decision of 30/5/97 is erroneous in law and that the tribunal 
		erred by not detecting that error.  In support of my submission 
		I would draw the Commissioner's attention to CSDLA/121/97 ... 
		which bears certain similarities to this case."

16.	In my view Mrs Gunning's submissions are substantially correct.  The Adjudication Officer's decision of 30 May 1997 was erroneous because he disregarded the provisions of section 30(4) of the Social Security Administration (Northern Ireland) Act 1992 by considering the claimant's entitlement to the mobility component.  The Tribunal erred by failing to detect this error.  Therefore I grant leave to appeal and, with the consent of the parties, I treat this application as an appeal.  I set aside the decision of the Tribunal on the grounds that it is erroneous on point of law and refer the case to a freshly constituted Tribunal for a rehearing to determine on the merits the claimant's application for review of the Adjudication Officer's decision of 5 March 1997 which was received on 12 March 1997.  This new Tribunal is entitled to consider all the evidence in the case but should only consider the claimant's entitlement to the mobility component if it establishes jurisdiction to do so under the provisions of section 31(6)(ii) of the Social Security Administration (Northern Ireland) Act 1992.  As Mrs Gunning pointed out, the Tribunal should have regard to decision C70/97(DLA), C12/98(DLA) and C53/98(DLA).  If the Tribunal comes to the conclusion that "reasonable grounds" exist on which to consider the mobility component, it should set out the information which establishes this and should also give the claimant the opportunity to comment on this information - (see paragraph 27 of C53/98(DLA)).  If the freshly constituted Tribunal does decide to alter the claimant's entitlement to the mobility component, any alteration can only be effective from the date of hearing - (see paragraph 43 and 46 of C59/98(DLA)).

17.	In light of the fact that I consider that a rehearing of the case is necessary I have not ruled on the claimant's second ground of appeal which was to the effect that the claimant would still satisfy the entitlement conditions for the mobility component of Disability Living Allowance even if he could walk the distance of 40/50 yards.  Suffice to say that, whilst the meaning of "virtually unable to walk" is a question of law, what constitutes an inability to walk to any appreciable extent is a matter of fact.  

18.	The Tribunal rehearing this case would be greatly benefited by the presentation of the case by a Departmental Official fully briefed on all the relevant submissions made to me by Mrs Gunning.   

(Signed): J A H Martin

CHIEF COMMISSIONER

14 March 2000