Application No:  A44/08-09(DLA)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

DISABILITY LIVING ALLOWANCE

 

 

Application by the above-named claimant for

leave to appeal to a Social Security Commissioner

on a question of law from a tribunal's decision

dated 18 March 2008

 

 

DETERMINATION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.     I refuse leave to appeal.

 

2.     The decision of the appeal tribunal dated 18 March 2008 is not in error of law.  Accordingly, the application for leave to appeal to the Social Security Commissioner does not succeed.  The decision of the appeal tribunal to the effect that the appellant is not entitled to disability living allowance (DLA) from and including 9 October 2007 is confirmed.

 

Background

 

3.     On 11 October 2007 a decision-maker of the Department decided that the applicant was not entitled to DLA from and including 9 October 2007, on a renewal claim.  An appeal against the decision dated 11 October 2007 was received in the Department on 31 October 2007.

 

4.     The appeal tribunal hearing took place on 18 March 2008.  The applicant attended the oral hearing together with his wife.  The appeal tribunal disallowed the appeal, and confirmed the decision dated 11 October 2007.

 

5.     On 4 September 2008 an application for leave to appeal to the Social Security Commissioner was received in The Appeals Service.  In connection with this application for leave to appeal, the applicant was represented by the Law Centre (Northern Ireland).

 

6.     The grounds cited in the application for leave to appeal were that:

 

(i)     the appeal tribunal failed to exercise its inquisitorial role to enquire into whether, having decided that the grounds for entitlement to the middle rate of the care component of DLA were not satisfied, it should have considered whether the grounds for entitlement to the lowest rate were satisfied; and

 

(ii)    mis-applied medical evidence which was before it.

 

7.     On 12 September 2008, the application for leave to appeal was refused by the legally qualified panel member.

 

8.     On 7 October 2008, a further application for leave to appeal to the Social Security Commissioner was received in the Office of the Social Security Commissioners and Child Support Commissioners.

 

9.     In the further application for leave to appeal to the Social Security Commissioner, the applicant’s representative submitted that the decision of the appeal tribunal was in error of law on the following submitted grounds:

 

(i)     the appeal tribunal failed in its inquisitorial role when dealing with the question as to whether the applicant satisfied the conditions of entitlement to the middle rate of the care component of DLA set out in section 72(1)(b)(i) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended.  More particularly, it was submitted that the appeal tribunal failed to consider whether the applicant would require assistance by way of prompting or encouragement to perform various tasks associated with his personal care;

 

(ii)    the reasons provided by the appeal tribunal for its decision were inadequate in that the applicant could not know if the effects of his mental health were considered by the appeal tribunal;

 

(iii)   the appeal tribunal did not properly consider if entitlement to the lowest rate of the care component of DLA was appropriate;

 

(iv)   in relation to its decision in connection with the mobility component of DLA, the appeal tribunal was unduly influenced by evidence which had no bearing on the applicant’s condition as at the date of the decision under appeal.

 

10.   On 6 November 2008 observations were sought from Decision Making Services (DMS) and these were received on 25 November 2008.  DMS opposed the application on the grounds cited by the applicant’s representative.

 

11.   Observations were shared with the appellant on 3 December 2008.  Further submissions in reply were received on 12 February 2009, and were cross-shared with DMS.

 

12.   On 16 March 2009 I directed an oral hearing of the application for leave to appeal.  The oral hearing took place on 11 May 2009.  At the oral hearing, the appellant was represented by Miss Loughrey from the Law Centre (Northern Ireland), and the Department was represented by Mr Kirk of the Decision Making Services section.  Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions.

 

13.   At the oral hearing the applicant’s representative relied on the grounds cited by her in the further application for leave to appeal to the Social Security Commissioner.

 

Errors of law

14.   A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.

 

15.   In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals.  As set out at paragraph 30 of R(I) 2/06 these are:

 

“(i)   making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);

 

(ii)       failing to give reasons or any adequate reasons for findings on material matters;

 

(iii)     failing to take into account and/or resolve conflicts of fact or opinion on material matters;

 

(iv)      giving weight to immaterial matters;

 

(v)        making a material misdirection of law on any material matter;

 

(vi)      committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …

Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’).  Errors of law of which it can be said that they would have made no difference to the outcome do not matter.”

 

Was the decision of the appeal tribunal in the instant case in error of law?

 

16.   As was noted above, the first ground on which the applicant’s representative relies relates to the appeal tribunal’s inquisitorial role.

 

17.   In C37/09-10(DLA), at paragraphs 25 to 35, I said the following about the appeal tribunal’s inquisitorial role, and its ambit:

 

‘The inquisitorial role of the appeal tribunal

 

25.   The appeal tribunal’s inquisitorial role has been the subject of invigorated analysis by the appellate authorities in recent years.

 

26.   In Kerr v Department for Social Development ([2004] UKHL 23), Baroness Hale analysed the appeal tribunal’s inquisitorial role, at paragraphs 61 to 62 of the decision:

 

‘Ever since the decision of the Divisional Court in R v Medical Appeal Tribunal (North Midland Region), Ex p Hubble [1958] 2 QB 228, it has been accepted that the process of benefits adjudication is inquisitorial rather than adversarial.  Diplock J as he then was said this of an industrial injury benefit claim at p 240:

 

"A claim by an insured person to benefit under the Act is not truly analogous to a lis inter partes.  A claim to benefit is a claim to receive money out of the insurance funds . . .  Any such claim requires investigation to determine whether any, and if so, what amount of benefit is payable out of the fund.  In such an investigation, the minister or the insurance officer is not a party adverse to the claimant.  If analogy be sought in the other branches of the law, it is to be found in an inquest rather than in an action."’

 

27.   In Mongan v Department for Social Development ([2005] NICA 16), the Lord Chief Justice had the following to say, at paragraphs 14 to 18:

 

‘[14]      The terms of article 13(8)(a) of the 1998 Order make it clear that issues not raised by an appeal need not be considered by an appeal tribunal.  The use of the phrase "raised by the appeal" should be noted.  The use of these words would tend to suggest that the tribunal would not be absolved of the duty to consider relevant issues simply because they have been neglected by the appellant or her legal representatives and that it has a role to identify what issues are at stake on the appeal even if they have not been clearly or expressly articulated by the appellant.  Such an approach would chime well with the inquisitorial nature of the proceedings before the tribunal.

 

[15]      It is now well established that appeal tribunal proceedings are inquisitorial in nature – see, for example the recent Decision of a Tribunal of Social Security Commissioners CIB/4751/2002, CDLA 4753/2002, CDLA 4939/2002 and CDLA 514/2002.  Mr McAlister relied on this decision, however, to support his contention that the tribunal was not required to consider matters that had not been raised by the parties to the proceedings.  In that case it was held that 'raised by the appeal' should be interpreted to mean "actually raised at or before the hearing by one of the parties."  In so far as the decision suggests that an appeal tribunal would not be competent to inquire into a matter that arose on an appeal simply because it was not expressly argued by one of the parties to the appeal, we could not agree with it.  It appears to us that the plain meaning of the words of the statute, taken together with the inquisitorial nature of the appeal hearing, demand a more proactive approach.  If, for instance, it appeared to the tribunal from the evidence presented to it that an appellant might be entitled to a lower level of benefit than that claimed, its inquisitorial role would require a proper investigation of that possible entitlement.

 

[16]      Mr McAlister suggested that even if the tribunal had a duty to consider issues not explicitly raised, this was a limited responsibility and he referred to an unreported decision (C5/03-04(IB)) in which Commissioner Brown held that the tribunal was not required "to exhaustively trawl the evidence to see if there is any remote possibility of an issue being raised by it."  We accept that there must be limits to the tribunal's responsibility to identify and examine issues that have not been expressly raised and we agree with the observation of Commissioner Brown.  But as she said in a later passage in the same case, issues "clearly apparent from the evidence" must be considered.

 

[17]      Whether an issue is sufficiently apparent from the evidence will depend on the particular circumstances of each case.  Likewise, the question of how far the tribunal must go in exploring such an issue will depend on the specific facts of the case.  The more obviously relevant an issue, the greater will be the need to investigate it.  An extensive inquiry into the issue will not invariably be required.  Indeed, a perfunctory examination of the issue may often suffice.  It appears to us, however, that where a higher rate of benefit is claimed and the facts presented to the tribunal suggest that an appellant might well be entitled to a lower rate, it will normally be necessary to examine that issue, whether or not it has been raised by the appellant or her legal representatives.

 

[18]      In carrying out their inquisitorial function, the tribunal should have regard to whether the party has the benefit of legal representation.  It need hardly be said that close attention should be paid to the possibility that relevant issues might be overlooked where the appellant does not have legal representation.  Where an appellant is legally represented the tribunal is entitled to look to the legal representatives for elucidation of the issues that arise.  But this does not relieve them of the obligation to enquire into potentially relevant matters.  A poorly represented party should not be placed at any greater disadvantage than an unrepresented party.’

 

28.   The inquisitorial role of the appeal tribunal was also considered by a Tribunal of Commissioners in Great Britain in R(IS) 17/04.  At paragraph 26 of the decision, it was noted that:

 

‘It is not in our judgment open to doubt that, as an appeal tribunal under the Social Security Act 1998 hearing the claimant’s appeal against the departmental determination revoking her entitlement to benefit, Mr Warren was sitting as an “inquisitorial” tribunal.  By that we mean his function was to carry out a complete reconsideration and redetermination for himself of the facts and merits of the decision under appeal, the purpose being to ascertain and determine the true amount of social security benefit to which the claimant was properly entitled: see R v. Deputy Industrial Injuries Commissioner ex parte Moore 1 QB 456 and R v. Medical Appeal Tribunal ex parte Hubble 2 QB 228 referred to above; the Commissioners’ case R(S) 4/82 (especially paragraph 25) and the recent decision of a Tribunal of Commissioners in CIB/4751/2002 [reported as R(IB) 2/04] (especially paragraph 32); and the further recent reaffirmation of the principle in Kerr v. Department for Social Development (Northern Ireland) UKHL 23 [R 1/04 (SF) (especially at  paragraph 14 per Lord Hope, and paragraph 61 per Lady Hale).  In our judgment this is and remains a principle of general application to all proceedings in such tribunals.  We do not accept Mr Seddon’s submission that it is in some way disapplied or diluted by the existence of further rights of appeal, confined to points of law, to the higher courts; or by the nature of the issues in a given appeal (for example, whether a case concerns entitlement or overpayment).’

 

29.   In Hooper v Secretary of State for Work and Pensions ([2007] EWCA Civ 495), also reported as R(IB) 4/07, the inquisitorial role of the appeal tribunal, as set out in Kerr was confirmed by the Court of Appeal for England and Wales, and the further analysis of the Lord Chief Justice in Mongan was approved.

 

The ambit of the inquisitorial role

 

30.   The traditional view of the appeal tribunal’s inquisitorial role is related to the duty, as was noted at paragraph 26 of the decision in R(IS)17/04, and following a review of all of the relevant authorities, ‘to ascertain and determine the true amount of social security benefit to which the claimant was properly entitled’.  In C15/08-09(DLA), I determined that this aspect of the inquisitorial role included a requirement to undertake a full investigation of the validity of an existing award and determine whether that award is correct.  In making that determination, I disagreed with the views of Commissioner Rowland in CDLA/884/2008, who had stated that an appeal tribunal is at liberty to draw any doubts about the validity of the decision to the Department’s attention in the decision notice and can arrange for the parties to be sent a copy of the record of proceedings without them having to request it, such action permitting the Department to consider a supersession or revision.

 

31.   The inquisitorial role has been interpreted in another way, however, as including the requirement for the appeal tribunal to provide support to the parties to the proceedings in order to ensure full participation in the appeal process to the fullest possible extent and to enable the parties to present all aspects of their case as fully and completely as possible.  In this context, the inquisitorial role is sometimes called the ‘enabling’ role.

 

32.   In my view, the enabling role takes on its greatest significance in the following situations:

 

(i)     oral appeals where the appellant is unrepresented, and where the Department may be represented;

 

(ii)    oral appeals where the appellant is unrepresented and does not make an appearance, and where the Department may be represented; and

 

(iii)   paper cases where the appellant is unrepresented.

 

33.   In these situations, and in a balanced and objective way, the appeal tribunal is under a duty to explore all of the relevant issues, and assess the evidence linked to those relevant issues, even where some or all of those issues have not been raised by the appellant.  Further, the appeal tribunal is under a duty to note, in any statement of reasons (SORs) for the appeal tribunal’s decisions, that it has addressed all relevant issues, assessed the evidence linked to those issues, found facts with respect to those issues and made an appropriate decision, related to entitlement to the benefit at issue.

 

34.   Balance also means that the appeal tribunal does not require, as was noted by Mrs Commissioner Brown in C5/03-04(IB), at paragraph 21 "to exhaustively trawl the evidence to see if there is any remote possibility of an issue being raised by it."  It is often the case, however, that unrepresented claimants to social security benefits do not understand the subtleties of the conditions of entitlement to that benefit.  In any claim to a disability benefit, or appeal against an adverse Departmental decision with respect to that claim, the claim or appeal is often couched in general assertions with respect to the disability, and may not be specifically related to the conditions of entitlement as understood by the decision-maker or appeal tribunal.

 

35.   Accordingly, the appeal tribunal must be alert to the objective consideration of specific issues even though these may not have been raised by the appellant.  The appeal tribunal will have to go beyond the detail, however general, of the appeal letter, and consider all of the evidence before it, which will usually include evidence relating to the initial claim to the benefit, and determine all issues which are relevant to the appeal.’

 

18.   How should those principles be applied in the instant case?

 

19.   The applicant’s representative has submitted that the appeal tribunal has not properly exercised its inquisitorial role, particularly with respect to the question as to whether the applicant satisfied the conditions of entitlement to the middle rate of the care component of DLA set out in section 72(1)(b)(i) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended.  More particularly, it was submitted that the appeal tribunal failed to consider whether the applicant would require assistance by way of prompting or encouragement to perform various tasks associated with his personal care.

 

20.   The record of proceedings for the appeal tribunal hearing indicate that the appeal tribunal had before it the appeal submission and the applicant’s general practitioner (GP) records.  Accordingly, the appeal tribunal would have had before it the appellant’s renewal claim form to DLA, a Factual Report, dated 6 June 2007, from the applicant’s GP, a report of an examination by an examining medical practitioner (EMP), dated 27 September 2007, and the applicant’s letter of appeal, dated 30 October 2007.

 

21.   In the renewal claim form to DLA the applicant indicates that in respect of his ability to get in and out of bed that his ‘needs range from physical support to emotional care’.  In respect of washing, bathing and looking after his appearance, he states that ‘low mood also restricts me’.  In relation to his ability to get dressed and undressed he indicates that his depression means that he does not wish to put himself through this activity.  In connection with assistance with medical treatment, the applicant indicates that he is physically and emotionally dependent.  At pages 17, 18 and 22 of the renewal claim form the applicant repeats that he is ‘constant physically/emotionally dependent for all activities’.  The appellant expresses himself as being in requirement of emotional as well as physical support and does not speak of his limitations in terms of encouragement or prompting.  Elsewhere in the renewal claim form, the applicant indicates that his limitations are caused by physical factors.

 

22.   In the Factual Report from the applicant’s GP, and in connection with a question asking for the provision of details, if known, of the effects of the applicant’s disabling condition on day to day life, the response is recorded as ‘Wife does most ADL’.  I am assuming that ‘ADL’ refers to ‘Activities of Daily Living’.  Elsewhere, and again, in connection with a specific question, there is an indication that the applicant’s insight and awareness of danger is total.  Finally, and in response to a specific question concerning the applicant’s mental state, the response is recorded as ‘PMH of DSH.  Wife attends to multiple ADL ∴ No Self neglect.’  My understanding is that ‘PMH of DSH’ means ‘previous medical history of deliberate self-harm’.

 

23.   In the report of the examination by the EMP, question 7 of section 1 requests an account of how the applicant spends a typical day.  The narrative in the completed EMP report in response to this question does not give any indication of a requirement for encouragement to carry out any relevant activity.  Question 2 of section 2 asks for clinical findings on examination in respect of the applicant’s mental state.  The reply is recorded as:

 

‘Mood normal pleasant and friendly

 

Not clinically depressed

 

Not anxious or agitated

 

Conversed easily did not need prompting

 

Good eye contact and normal facial expression

 

Cognition and concentration normal

 

Mental state exams normal

 

Serial 7s normal’

 

24.   At question 7 of section 2, the EMP gave the opinion that the applicant could attend to all his bodily functions safely and unaided and could perform the tasks associated with the preparation of a cooked main meal.

 

25.   At question 16 of section 3, the EMP indicated that the applicant did not suffer from any mental disablement likely to cause him to neglect personal hygiene or nutrition.  The EMP added:

 

‘I did not find customer was clinically depressed today.

 

Not anxious or agitated.

 

Not on anti-depressants.

 

No psychiatric input.

 

Mood has improved since 2000.’

 

26.   In the applicant’s letter of appeal, dated 30 October 2007, the applicant repeats that he requires constant physical and emotional support from his family and that he had lost all quality of life.

 

27.   The record of proceedings also confirms that the appeal tribunal took evidence from the applicant in connection with his care and supervision requirements.  The applicant’s evidence, as recorded in the record of proceedings, was that he had a requirement for assistance from his wife in relation to attending to his bodily functions.  He indicates, at one stage, that he has ‘no patience’.

 

28.   The statement of reasons for the appeal tribunal’s decision reviews the medical evidence which was before the appeal tribunal, including the factual report from the applicant’s GP, and the report of the medical examination undertaken by the EMP.

 

29.   With respect to the care component of DLA, the appeal tribunal stated, inter alia:

 

‘At hearing (the claimant) was accompanied by his wife.  He presented with cheerful open demeanour.  He carried a wooden walking stick and he was warmly and cleanly dressed.  He spoke fluently and relevantly.  He walked into the room, sat down, continued sitting and rose again without any obvious restriction or pain.

 

…

 

We accepted that (the claimant’s wife) (who works outside the home 5 days a week) is supportive of her husband and would provide him with some physical and emotional support.  However, even on the basis of his own evidence we thought (the claimant) did not, at the date of the decision under appeal, reasonably require attention with bodily functions either by day or night as defined by the statutory tests.

 

We also accepted the Examining Medical Practitioner’s assessment.

 

The Examining Medical Practitioner’s report had been prepared after a history had been taken and after examination and observations.  The Examining Medical Practitioner’s diagnosis matched that of the General Practitioner in every significant respect and the Examining Medical Practitioner did accept some mild limitation of function in some areas.  Nonetheless, the Examining Medical Practitioner made plain in the report that in her opinion the tests for mobility and care components were not met.  All other evidence, including the Appellant’s own statements of [sic] hearing, served to reinforce that assessment.’

 

30.   I am certain that the phrase ‘of hearing’ in the final sentence quoted above is meant to read ‘at hearing’.

 

31.   Considering all that was before the appeal tribunal, and reading the statement of reasons for the decision, it is clear that the appeal tribunal undertook a rigorous and rational assessment of all of the evidence before it.

 

32.   The appeal tribunal gave a sufficient explanation of its assessment of the evidence, explaining why it took the particular view of the evidence which it did.  Any conflict in the evidence before the appeal tribunal has been clearly resolved and explained.

 

33.   The appeal tribunal made sufficient findings of fact, relevant to its decision, all of which are wholly sustainable on the evidence, and all of which are supported by relevant evidence.  None of the appeal tribunal’s findings are irrational, perverse or immaterial.

 

34.   Not only was the appeal tribunal aware that the appellant had a stated requirement for emotional support, the appeal tribunal accepted that such emotional support, and indeed physical support, would be provided by the applicant’s wife.  The degree of that support was qualified - correctly in my view - by the clear finding in fact that the applicant’s wife worked outside the home on five days per week.  The finding that emotional support was to an extent provided by the applicant’s wife demonstrates that the appeal tribunal had considered all of the evidence before it and, most particularly, the applicant’s own evidence in his renewal claim form to benefit where the phrase ‘emotional support’ was used on a number of occasions.

 

35.   The appeal tribunal accepted the report of the examination by the EMP in its entirety, and set out the reasons why it accepted that report.  The appeal tribunal was entitled to accept the report of the EMP.  It is important to note that the assessment of evidence is a matter for the appeal tribunal, and a Social Security Commissioner must be wary of interfering with the conclusions of an appeal tribunal based on its evidential assessment.

 

36.   The appeal tribunal was of the view that the findings, opinion and conclusions of the EMP were in conformity with all of the other evidence which was before the appeal tribunal, including the evidence of the GP, the evidence of the applicant and the evidence of the applicant’s wife.  That meant an acceptance by the appeal tribunal of mild limitation of function but not the degree of limitation which equated to satisfaction of the tests for entitlement to the care component of DLA.

 

37.   The applicant’s representative has submitted that the evidence from the applicant’s GP indicated something greater than the mild degree of function of limitation.  To support this, she relied on the statement which the GP recorded in answer to question 7 of the factual report, where it was stated that ‘Wife attends to multiple ADL ∴ No Self neglect.’

 

38.   As was noted above, the appeal tribunal accepted that the applicant’s wife provided physical and emotional support to the applicant but did not accept that this meant that the legislative tests for entitlement to the care component of DLA were satisfied.  In arriving at this conclusion, the appeal tribunal was aware of the contents of the factual report and did not give the statement at question 7 the same interpretation as has the applicant’s representative.  As was noted above, the assessment of evidence is a matter for the appeal tribunal.

 

39.   Both the EMP and the appeal tribunal agreed that the applicant’s presentation and demeanour were not suggestive of any significant, or any degree of mental impairment.

 

40.   The applicant’s representative is submitting that the appeal tribunal’s inquisitorial role is such that the appeal tribunal ought to have addressed, with the applicant and his wife, the issue of how his problems with his mental health impacted on his ability to function on a daily basis, and the record of proceedings for the appeal tribunal’s decision should show evidence of this.  The record of proceedings for the appeal tribunal hearing demonstrate that the appeal tribunal gave care and attention in the manner in which it adduced evidence from the applicant in connection with the issues arising in the appeal.  The applicant was given every opportunity to indicate the source and impact of his limitation in function and could, if necessary, have reinforced his requirement for emotional support.  In any event, the statement of reasons makes it clear that the appeal tribunal was aware of the relevant issue and addressed the issue in sufficient detail.

 

41.   Accordingly, I reject the first ground on which the application for leave to appeal is based.

 

42.   The second ground on which the application for leave to appeal was based was that the reasons provided by the appeal tribunal for its decision were inadequate in that the applicant could not know if the effects of his mental health were considered by the appeal tribunal.  With respect to the submission made by the applicant’s representative, this ground is also rejected.

 

43.   In my view, read as a whole, the statement of reasons for the appeal tribunal’s decision provides a detailed explanation of the basis on which the appeal tribunal arrived at its conclusions on the issues before it.  As was noted above, the appeal tribunal gave an analysis of the medical evidence which was before it.  It confirmed that both the factual report prepared by the applicant’s GP, and the report prepared by the EMP had confirmed that the applicant had been diagnosed with depression.  Having assessed all of the medical evidence which was before it, the appeal tribunal stated that it accepted the report of the examination by the EMP in its entirety, and set out the reasons why it accepted that report.  That report included, as was noted above, specific clinical findings in respect of the applicant’s mental health.  The appeal tribunal was of the view that the findings, opinion and conclusion of the EMP was in conformity with all of the other evidence which was before the appeal tribunal.

 

44.   I cannot agree, therefore, that the statement of reasons for the appeal tribunal’s decision is inadequate in that the applicant could not know if the effects of his mental health were considered by the appeal tribunal.

 

45.   The third ground on which the application for leave to appeal was based was that the appeal tribunal did not properly consider if entitlement to the lowest rate of the care component of DLA was appropriate.  My conclusion is that the appeal tribunal did consider whether all of the legislative tests relating to entitlement to the care component were satisfied, and concluded that they were not.  That was a conclusion which the appeal tribunal was entitled to reach.

 

46.   As was noted above, the appeal tribunal was of the view that the findings, opinion and conclusions of the EMP, which it had accepted in their entirety, were in conformity with all of the other evidence which was before the appeal tribunal, including the evidence of the GP, the evidence of the applicant and the evidence of the applicant’s wife.  That meant an acceptance by the appeal tribunal of mild limitation of function but not the degree of limitation which equated to satisfaction of the tests for entitlement to the care component of DLA.

 

47.   As was noted in the written observations on the application for leave to appeal, made by Mr Collins on behalf of DMS:

 

‘… In the Northern Ireland Commissioner’s decision C48/03-04(DLA), the Commissioner stated:

 

“…………………It is not a legal rule that a Tribunal must make a separate evidential assessment for each component or rate of a component.  All that is required is that the reasons be adequate to explain the decision…………..”

 

48.   In my view the statement of reasons, in the instant case, are adequate to explain the decision arrived at by the appeal tribunal.

 

49.   The final ground on which the application for leave to appeal was based was that in relation to its decision in connection with the mobility component of DLA, the appeal tribunal was unduly influenced by evidence which had no bearing on the applicant’s condition as at the date of the decision under appeal.

 

50.   The statement of reasons for the appeal tribunal’s decision reviews the medical evidence which was before the appeal tribunal, including the factual report from the applicant’s GP, and the report of the medical examination undertaken by the EMP.

 

51.   With respect to the mobility component of DLA, the appeal tribunal stated, inter alia:

 

‘In assessing (the claimant’s) mobility the Examining Medical Practitioner recorded at p15 of the report.

 

“Mobility limited by back pain and thigh pain.  Right ankle pain.  More recently has become short of breath on exertion.  Also fatigue.  States can walk 10 yards.  Based on my findings today I feel mobility is more than stated.”  The Examining Medical Practitioner considered (the claimant) could walk 150-200 metres (150m on worse days) before the onset of severe discomfort at a slow speed with steady balance and a slight limp.

 

In advance of the hearing we had access to (the claimant’s) medical records.  The only significant piece of evidence giving some description of or insight into function was a report from a consultant rheumatologist after examination on 3 March 2005 “(The claimant) tells me he continues in pain.  He said he went to physio but developed a spasm in his back and did not continue with it.  He has no real leg weakness but complains of pain in the muscles of his legs.  X-ray of lumbar spine was normal and disc spaces were well maintained.  X-ray of pelvis showed the internal fixation and hip joints were well maintained.  There was no synovitis.  On examination of his lower limbs there is some wasting of the quads muscle and calf muscles but he has good power.”  Now [sic] follow up was arranged.

 

At hearing (the claimant) was accompanied by his wife…..He walked into the room, sat down, continued sitting and rose again without any obvious restriction or pain.

 

…

 

With regard to the extent of physical walking limitations after hearing evidence from (the claimant and his wife) and after reading the medical records we thought that the conclusions in the Examining Medical Practitioner’s report were accurate and reliable.  The comments on p13 of the report summarise the level of functional limitations, especially walking, well.  Taking into account the distance, speed and manner of walking (the claimant) can achieve before severe discomfort we concluded that he was not virtually unable to walk at the date of decision under appeal.

 

Turning to the low [sic] rate of the mobility component, again we saw no reason to dissent from any of [sic] findings and conclusion of the Examining Medical Practitioner at pages 15 and 16 of her report.’

 

52.   It is clear that the report of the Consultant Rheumatologist was but one of several pieces of evidence considered by the appeal tribunal before arriving at its conclusions with respect to the mobility component of DLA.  The other evidence was that contained in the report of the EMP, and the direct oral evidence from the applicant and his wife.  The appeal tribunal concluded, after assessing the other evidence available to it, that the conclusions in the EMP report were accurate and reliable.  Once again, I repeat that this was a conclusion that the appeal tribunal was entitled to reach.  Accepting the conclusions arrived at by the EMP entitled the appeal tribunal to conclude that the tests with respect to the mobility component of DLA were not satisfied.  Accordingly, I also reject this final ground in the application for leave to appeal.

 

Disposal

 

53.   I refuse leave to appeal.

 

54.   The decision of the appeal tribunal dated 18 March 2008 is not in error of law.  Accordingly, the application for leave to appeal to the Social Security Commissioner does not succeed.  The decision of the appeal tribunal to the effect that the appellant is not entitled to DLA from and including 9 October 2007 is confirmed.

 

 

(Signed):  K Mullan

 

Commissioner

 

 

 

30 November 2009