PC-v-Department for Social Development (DLA) [2016] NICom 19

Decision No:  C18/15-16(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 20 March 2015

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is a claimant’s application for leave to appeal from the decision of an appeal tribunal sitting at Ballymoney.

2.	An oral hearing of the application has not been requested.

3.	For the reasons I give below, I grant leave to appeal.  However, I disallow the appeal.

REASONS

	Background

4.	The applicant claimed disability living allowance (DLA) from the Department for Social Development (the Department) from 26 September 2014 on the basis of needs arising from a fractured leg.  He had made a previous claim from 22 May 2014.  The Department had obtained a report from the applicant’s general practitioner (GP) on 30 June 2014.  On 21 October 2014 the Department decided on the basis of all the evidence that the applicant did not satisfy the conditions of entitlement to DLA from and including 26 September 2014.  The applicant appealed.  However, he indicated that he was content for the appeal to proceed without an oral hearing.

5.	The appeal was considered by a tribunal consisting of a legally qualified member (LQM), a medically qualified member and a disability qualified member.  After considering the relevant documents on 20 March 2015 the tribunal disallowed the appeal.  The applicant then requested a statement of reasons for the tribunal’s decision and this was issued on 12 June 2015.  The applicant applied to the LQM for leave to appeal from the decision of the appeal tribunal but leave to appeal was refused by a determination issued on 17 July 2015.  On 7 August 2015 the applicant applied to a Social Security Commissioner for leave to appeal.

	Grounds

6.	The applicant’s grounds do not make any submission that the tribunal has erred in law but reiterate his health conditions and claimed mobility and care needs.  He says “I drink every day.  I fell, broke my leg and fractured my back.  I can’t walk without help.  I live in an upstairs flat.  I can’t get downstairs.  My brother helps me usually at weekends as he works full time and my sister does the washing.  I can’t get in or out of a bath so washing is just with a face cloth”.  He attaches a letter from his doctor and a list of medication.

7.	The Department was invited to make observations on the applicant’s grounds.  Mrs Hulbert of Decision Making Services responded on behalf of the Department.  Mrs Hulbert submitted that the applicant had not identified any basis for holding that the tribunal had erred in law.  However, she referred to an aspect of the tribunal’s decision where it was stated that “… it may be that if he abuses alcohol and suffers from depression that there may be neglect.  However, we cannot speculate.  On the available evidence we do not find care needs established”.  She submits that the tribunal may have erred in not adjourning to garner further evidence on the issue of possible self-neglect.

	The tribunal’s decision

8.	The tribunal had considered the documentary evidence including the applicant’s medical records.  He had indicated that he did not want an oral hearing of the appeal and therefore the tribunal did not have the benefit of hearing directly from the applicant about any needs he might have.

9.	Whereas the applicant in his claim form stated in October 2014 that he could only walk 2 metres in five minutes without severe discomfort, a letter from his orthopaedic surgeon – some eight months after the knee injury in July 2014 - had said that he had a full range of movement in his knee and was walking with no restriction.  On this basis the tribunal did not accept that the test for high rate mobility component was satisfied.  It accepted that the applicant was reclusive and preferred not to go out, but saw no evidence to indicate that he could not go out alone.  The background evidence suggested that he had a fear of falling on the steps outside his flat, as he had sustained his leg injury by such a fall.

10.	In relation to care, the tribunal found that the applicant received some help from his brother and sister and had some living aids.  In his claim form he had mentioned having a hoist to help him get out of bed, a high toilet seat, a high chair and a pulpit chair to sit at the sink to shave.  The applicant had not elected to give evidence at a hearing and the tribunal felt that it had little information about his care needs.  In light of the evidence of alcohol abuse, the tribunal stated that there may be a possibility of self-neglect, but reminded itself that it had not had the benefit of evidence from the applicant and that it could not speculate.

	Assessment

11.	In the light of the submission of Mrs Hulbert, in which she demonstrates that there may be an arguable case for saying that the tribunal has erred in law, I grant leave to appeal.  Her submission amounts to expressing doubt as to whether the tribunal should have determined the appeal, or whether in the light of its comment on the possibility of self-neglect, it should have resolved any issue arising, perhaps by adjourning to give an opportunity for more evidence.

12.	The principal authority on this issue is Mongan v Department for Social Development [2005] NICA 16.  The Court of Appeal in Mongan considered that a tribunal is required to resolve all the issues “raised by” an appeal, although it need not consider matters not raised by an appeal (by Article 13(8)(a) Social Security (NI) Order 1998).  The meaning of “raised by an appeal” is not confined to formal grounds relied upon by an appellant, because the inquisitorial nature of tribunal proceedings demands a more proactive approach.  The Court of Appeal accepted that there must be limits to the tribunal’s responsibility to identify and examine issues that have not been expressly raised.  It said that how far a tribunal might need to go in exploring a specific issue would depend on the facts of the case.

13.	In the present case, the applicant had been alcohol dependent for a long period.  However, his DLA claim was brought in the context of having fallen and suffered a broken knee.  The tribunal had the applicant’s medical records and an indication from the applicant’s GP that he drank from 2 to 4 litres of cider daily.  His own statement of alcohol intake was vaguer; it referred to drinking a bottle of vodka, whisky, cider or “whatever I can afford”.  He did not refer to self-neglect, although he talked about having burned his kitchen.  His GP had said “no deliberate self-neglect (other than when intoxicated”).  Therefore, while there was evidence of alcohol intake, there was no evidence of self-neglect when sober.

14.	In terms of self-neglect when intoxicated, the transient effects of choosing to consume too much alcohol cannot be taken into account (R(DLA)6/06).  Therefore it would need a consideration of any pattern of alcohol consumption in order to assess whether there was any self-neglect.  Any investigation of care needs would require a determination on the degree of self-control that is realistically attainable in the light of all the circumstances.  This in turn would require an investigation of the possibility of the applicant taking advantage of professional assistance to control his alcohol consumption.  However, the term “self-neglect” is also inherently vague.  It would certainly include forgetting to eat, to wash, to change clothes and so on.  However, there was no indication of the type of self-neglect which the tribunal had in mind in its speculative comment.  Therefore, the matter of whether the applicant reasonably required attention in connection with bodily functions was far from established as being relevant on the evidence before the tribunal.

15.	I understand why Mrs Hulbert has made the submission that she had.  However, I am not satisfied that there was evidence of significant self-neglect which would reasonably have required the intervention of a third party.  The applicant had not elected to have an oral hearing of his appeal and was content for the tribunal to decide the appeal on the documentary evidence.  In all the circumstances of this case, I do not consider that facts demanded that the tribunal should have gone to further lengths in exploring this issue.

16.	It follows that I must disallow the appeal.

(signed):  O Stockman

Commissioner

15 March 2016