SO’B-v-Department for Social Development (DLA) [2012] NICom 346

Decision No:  C33/12-13(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 16 August 2011

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application for leave to appeal from the decision of an appeal tribunal sitting at Ballymoney on 16 August 2011.

2.	An oral hearing of the application was not requested.  However, I considered that an oral hearing was necessary in order to determine the proceedings properly.  I directed an oral hearing of the application.

3.	For the reasons given below, I grant leave to appeal but I dismiss the appeal.  The applicant remains entitled to the low rate of the care component and the low rate of the mobility component of disability living allowance (DLA) for the period from 19 October 2010 to 8 November 2011.

REASONS

	Background

4.	The applicant made a claim for DLA from 19 October 2010 on the basis of needs arising following a cardio-vascular accident (a stroke) and memory loss.  On 9 November 2010 the Department disallowed the claim.  The applicant appealed to a tribunal, which awarded the low rate of the care component and the low rate of the mobility component of DLA from and including 19 October 2010.

5.	On 17 August 2011, the applicant requested a statement of reasons for the tribunal’s decision.  This was issued to her on 10 October 2011.  On 9 November 2011 she sought leave to appeal to the Social Security Commissioner from the legally qualified member (LQM) of the appeal tribunal.  Leave to appeal was refused by the LQM by a determination issued to the applicant on 22 November 2011. The applicant then made application to a Social Security Commissioner for leave to appeal in an application received on 25 November 2011.

6.	On or around 9 November 2011 the applicant had also applied for a supersession of the tribunal decision of 16 August 2011 on the basis of a relevant change of circumstances.  This application resulted in a decision of the Department superseding the tribunal decision from and including 9 November 2011 and awarding middle rate care component for an indefinite period in addition to the existing award of low rate mobility component.  This development has the effect of narrowing the period over which I have jurisdiction to that from 19 October 2010 to 8 November 2011 (as per C20/04-05(DLA)).

	Submissions

7.	The application for leave to appeal submits that the tribunal erred in law by:

(i)	having regard to irrelevant matters – namely a carers allowance (CA) claim made by the applicant in respect of her husband;

(ii)	failing to consider relevant matters – specifically a report from a consultant psychiatrist – due to an assumption that it only described the applicant’s health after the date of decision.

8.	On 2 February 2012 the Department was invited to comment on the applicant’s grounds of application for leave to appeal. Mrs Hulbert replied for the Department on 23 February 2012. She addresses the applicant’s grounds of application for leave to appeal as made to the Commissioner under regulation 9 of the Social Security Commissioners (Procedure) Regulations (NI) 1999 and has also addressed the grounds previously submitted to the LQM of the appeal tribunal under regulation 58 of the Social Security and Child Support (Decisions and Appeals) Regulations (NI) 1999. In the light of the grounds, she submits that:

(i)	the award of CA did not impact on the tribunal decision and it did not err in law as contended;

(ii)	by failing to identify the period of time to which the psychiatrist’s report related, the tribunal erred in law;

(iii)	by focusing on the evidence of the applicant’s general practitioner (GP), and excluding the consultant psychiatrist’s report, the tribunal erred in law.

9.	Therefore, the Department was in agreement with the applicant that the tribunal decision contains errors of law.

10.	In light of the Department’s observations, I considered whether I should exercise the discretion given to me by Article 15(7) of the Social Security (NI) Order 1998 to set aside a decision where each of the parties expresses the view that the decision appealed against was erroneous in point of law.  However, I did not consider that this was a case where I should do so, having regard to the merits of the application.  In particular, I wished to hear more argument on whether the tribunal did or did not have regard to the evidence of the consultant psychiatrist, and whether, if so, there had been a material error of law.  I also took some account of the fact that if I adopted the course of setting aside the tribunal’s decision, I would be removing the applicant’s entitlement to DLA for the period in question.  I directed an oral hearing of the application. 

	The hearing

11.	The applicant attended the hearing and was represented by Ms Deans of Citizens Advice, Coleraine.  The Department was represented by Mrs Hulbert.  I am grateful to Ms Deans and Mrs Hulbert for their helpful submissions.

12.	In light of the Department’s observations, I accepted that the applicant had established an arguable case of error of law.  I therefore granted leave to appeal.  With the consent of the parties, I then proceeded to treat and determine the application as an appeal.

13.	The appeal essentially centres on two factors.  Firstly it involves the question of whether the tribunal erred in law by taking into account the fact that the applicant receives CA for her husband.  Secondly, it involves the question of whether the evidence of the consultant psychiatrist was given due regard by the tribunal in its assessment of all the evidence before it.

14.	At hearing, Ms Deans did not place reliance on the first of the grounds.  I consider that she was correct to take that course.  As far as the question of CA is concerned, the tribunal states in its reasons:

“9. It was noted from the evidence that Claimant is in receipt of Carers Allowance in respect of her husband. This does not necessarily preclude entitlement to DLA for her but it is a relevant factor for Tribunal to consider and to weigh. In the present case Tribunal did not feel that the payment of Carers Allowance affected Claimant’s entitlements as found at the relevant date”. 

15.	It is clear from this that the tribunal did not consider that the applicant’s entitlement to CA was a material factor in the present case.  Rather, the decision of the tribunal is reasoned in terms of the evidence concerning attention and supervision needs. I consider that Mrs Hulbert’s submissions on this point are correct and that the tribunal has not erred in law in this respect.

16.	The main issue in the proceedings was the tribunal’s treatment of the report of Dr C, a consultant old age psychiatrist.  This report was submitted to the tribunal on the applicant’s behalf and was dated 23 June 2011.  The report confirmed that the applicant suffered from a significant cognitive impairment although final diagnosis was not confirmed.  Symptoms were reported as very poor short term memory, resulting in misplacing and losing items such as keys.  She had impairment of language and difficulty comprehending language at times.  She was experiencing low mood and required assistance carrying out daily activities due to cognitive impairment.  She was no longer able to bake or cook and could easily lose her way outside of the home.  There had been concerns about her safety at home as she had left the cooker on in the past.

17.	The tribunal refers to the report as follows: “The CAB had submitted a report from a Consultant Old Age Psychiatrist which refers to “significant cognitive impairment” and “very poor short term memory”.  However, this report was dated 23 June 2011, ie more than eight months after the date at which the tribunal must assess”.

18.	The applicant criticises the tribunal for failing to take the report into account on the assumption that it only described her health after the date of decision, a period which the tribunal is precluded from considering by Article 13(8)(b) of the Social Security (NI) Order 1998.  In written submissions Mrs Hulbert agreed that the tribunal erred in law by failing to identify the period in time to which the report related.  She submitted that the tribunal wrongly focused on one piece of evidence over another, preferring the report of the applicant’s GP to that of Dr C.

19.	I asked for oral submissions on this issue.  In particular, I asked about the tribunal’s findings in relation to the low rate mobility component.  The evidence of the GP referred simply to memory problems.  The applicant’s claim form asserted that she would need to be accompanied out of doors.  This was then confirmed by Dr C’s report of June 2011.  Neither party could direct me to other specific evidence confirming the applicant’s account in relation to her need for guidance or supervision in the period prior to the date of the Department’s decision.

20.	The statement of reasons reads:

“4. Claimant could not remember when she first had problems out of doors.  Her General Practitioner in her report dated 5 November 2010 stated “memory problems constant” and the Consultant in her letter (eight months after the Decision date) said that Claimant “could easily lose her way when outside of the home”.

5. Having considered all of the evidence before it, Tribunal accepted, on balance, that at the relevant date i.e.  9 November 2010, Claimant could not “take advantage of the faculty [of walking] out of doors without guidance or supervision from another person most of the time” (Section 73(1)(d)).”

21.	The tribunal found, on the basis of all the evidence before it, that supervision out of doors was required by the applicant prior to November 2010.  The evidence before it consisted of the applicant’s stated needs, her GP’s confirmation of memory problems and the consultant’s evidence of June 2011 that she “could easily lose her way when outside of the home”.  The use of the expression “on balance” conveys to me that the tribunal did not rely solely on the contemporaneous evidence of the applicant and the GP, but involved a judgment which extrapolated Dr C’s evidence back to the earlier period.  The diagnosis of the applicant’s memory problems was a complex one and no final diagnosis had been made.  If the applicant’s cognitive impairment was related to her stroke in July 2008, as suggested by the evidence, then that was not an unreasonable judgment to make.

22.	I consider that the tribunal clearly had regard to Dr C’s report in that element of its decision concerned with the mobility component on the basis that it post-dated the appealed decision but nevertheless described the circumstances obtaining at that date.  I reject the submission that the tribunal did not rely on Dr C’s evidence, and did not expressly determine whether it applied to the period before the tribunal.

23.	Similarly, in relation to care, the applicant’s GP had referred to short term memory problems but had stated that care needs were not affected to her knowledge and had referred to mild cognitive impairment.  It was Dr C who indicated problems with the activities of daily living and with cooking.  This was supportive of the award of low rate care component on the basis of the applicant having needs for a significant portion of the day.  The tribunal had made an award of low rate care component based on attention needs for a significant portion of the day.  Again, I consider that this was a reasonable judgment, based on all the evidence including Dr C’s report.

24.	Ms Deans submitted that the tribunal had evidence before it which should have led to an award of the care component for night time supervision, having regard to evidence of night time wakefulness and risk from smoking.  She submitted that there was evidence of a need for continual supervision during the day to avoid substantial danger to the applicant or others.  She further submitted that there was evidence of frequent attention needs in relation to medication and communication in addition to clothes and hygiene.

25.	The applicant’s case for the tribunal having erred in law was premised on the tribunal having disregarded the evidence of Dr C.  As indicated above, I do not consider that this is the case.  It follows that I consider that the tribunal did not err as submitted.  Moreover, I consider that the consultant’s report does not contain sufficiently specific evidence to ground findings of a reasonable requirement for attention throughout the day or for attention for prolonged or repeated periods at night, or for day or night time supervision.

26.	The tribunal’s findings in relation to the attention and supervision needs of the applicant are based on evidence and are not irrational.  Therefore, I am not satisfied that the decision of the tribunal is in error of law.

27.	It follows that I must dismiss the appeal.

(signed):  Odhrán Stockman

Commissioner

27 November 2012