LINDA MILLER AGAINST A DECISION OF THE SOCIAL SECURITY COMMISSIONER
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
| Lord Coulsfield Lord Osborne Lord Drummond Young | XA41/00 OPINION OF THE COURT delivered by LORD COULSFIELD in APPEAL under the Social Security Administration Act 1992, section 24(2)(b) by LINDA MILLER Appellant; against A decision of the Social Security Commissioner dated 16 November 1999 _______ |
Act: Kelly; Anderson Strathern
Alt: Bartos; H. McDiarmid, Solicitor
12 July 2002
[1]On 5 December 1997, the appellant made a claim for disability living allowance . A report was obtained from a visiting doctor who assessed the appellant's condition and commented specifically on a number of matters raised by her which were relevant to her claim. On 6 January 1998, an adjudication officer considered the claim and determined that the appellant was not entitled to disability living allowance. The appellant requested a review of that decision and various procedures followed but her application was not successful. She appealed to a Disability Appeal Tribunal in Glasgow which refused her appeal, by a decision dated 3 November 1998. She requested leave to appeal against that decision. That request was refused by the chairman of the Tribunal but granted by the Commissioner on 29 August 1999. The Commissioner (Mr. D.J. May, Q.C.) proceeded to consider the appeal. On 16 November 1999, he held that the Tribunal decision was not erroneous in law and dismissed the appeal. The appellant has now appealed to this court.
[2]Disability living allowance is a benefit comprising two sections or parts, described as components, namely the mobility component and the care component. The mobility component may be awarded at a higher rate or a lower rate. The care component also may be awarded at different rates. As the case has developed, it is not necessary to describe the care component any further. The mobility component is awarded at the higher rate to persons who suffer from physical disability which makes them unable to walk or virtually unable to walk. The lower rate is awarded to persons who are so severely disabled mentally or physically that they cannot walk out of doors on unfamiliar routes without someone to guide or supervise them for most of the time, although they may be capable of the physical action of walking. The relevant statutory provision is section 73 of the Social Security Contributions and Benefits Act 1992, taken with regulation 12 of the Social Security (Disability Living Allowance) Regulations 1991.
[3]The Disability Appeal Tribunal issued a statement of material facts and reasons for its decision of 3 November 1998. The findings in fact record that the claimant suffered from back pain, anxiety and depression, cystitis, incontinence and joint pains but also state that she had full function of all limbs and that on examination of her joints there was no evidence of arthritis. The Tribunal also found that the claimant could walk more than a mile at a slightly lower than normal speed; that she would not require to stop walking or require support from another person; and that she did not require guidance or supervision from another person while walking out of doors along an unfamiliar route for most of the time. She could tend unaided to all of her bodily functions. She had fallen, although it was not clear how often, and on one occasion she had twisted her ankle in a fall. Under the heading "Reasons for the decision" the Tribunal said:
"6.The Tribunal were faced with two completely contrasting versions of the disabling effect of the claimant's various medical conditions. Her own versions suggested that she would meet the criteria for an award of each of the two levels of the mobility component and all three levels of the care component on the basis of attention, supervision and an inability to cook. The examining medical practitioner identified the appellant's disabling conditions with the exception of arthritis and he indicated that he could find no evidence of this in the claimant's joints. That apart, he concluded that the claimant had no care, supervision or mobility needs. He made at page 55 an assessment of the claimant's limb function. He also indicated at page 60 a number of bodily functions which the claimant could in his opinion attend to unaided. While this was not an exhaustive list, in light of the claimant's limb function and the ability to perform the functions listed on page 60 the Tribunal were unable to identify any bodily function which the claimant could not attend to unaided. The Tribunal also concluded from the examining medical practitioner's report that the claimant was able to plan, prepare and cook a hot meal."
[4]The Tribunal then dealt with the question of falls but held that there was no need for continual supervision in that respect. The statement concluded as follows:
"The evidence of the examining medical practitioner was preferred to that of the claimant because his findings were based on clinical examination and observation of the claimant. He was impartial and medically qualified."
[5]The claimant's letter of appeal against that decision contained three grounds. The first was that the Tribunal had failed to keep a note of evidence: that matter was later dealt with and the appellant was supplied with the Tribunal's record of evidence. The second ground of appeal was that
"In respect of lower mobility they have made no relevant findings of fact, finding of fact 4 is merely a statement that the statutory condition is not met but it is not a finding of fact."
The third ground was that no mention was made at all in the decision of lower mobility.
[6]In his decision to refuse the appeal, the Commissioner recorded the grounds put forward in that letter. He also recorded that the grounds were supported by an adjudication officer in a submission to the Commissioner. The officer agreed that the Tribunal had failed to make findings in respect of the mobility component at the lower level. The Commissioner referred to the Tribunal's record of evidence and in particular to the evidence recorded as having been given by the appellant about her condition. He went on to say that in the light of the record of proceedings it was surprising that the grounds of appeal were stated as they had been because the evidence presented to the Tribunal was that the claimant's walking was so restricted for physical reasons that she would be unable to take advantage of the faculty of walking because of these physical restrictions rather than on the basis postulated in the conditions for the lower rate of mobility component. The Commissioner, however, went on to say:
"In the event the Tribunal as a matter of fact found that the claimant's physical walking ability was greater than asserted by her and:-
'4.The claimant did not require guidance or supervision from another person whilst walking out of doors along an unfamiliar route for most of the time.'
8.The basis for finding 4 is to be found in the acceptance by the Tribunal of the examining medical practitioner's report. In that report, following upon the statement given by the claimant herself the doctor concluded:
'41 year old woman who undoubtedly has symptoms of anxiety and depression. She also has back pain and incontinence. She stated that she had arthritis and chest problems but there were no corroborating signs to back this up. I can see no reason why she cannot live independently and have normal mobility. She certainly could not be considered disabled, in my opinion.'
He also concluded that there was no need for guidance or supervision that would be needed whilst walking out of doors along an unfamiliar route for most of the time".
[7]The Commissioner then referred to the basis upon which the Tribunal had accepted the examining medical practitioners evidence, as previously quoted.
[8]The appellant stated four grounds of appeal to this court. The first was that the commissioner had erred in upholding the decision of the Tribunal without providing an opportunity for further representations or taking any further action although the adjudication officer had agreed with what the applicant had said in regard to the failure to make adequate findings. The short answer to that ground is that, when a notice of appeal is received, a form is sent to the appellant or his or her representative which includes a question whether an oral hearing is sought. The appellant was at the relevant time represented by an experienced representative and no request for an oral hearing was made. The position was confirmed by a fax message dated 12 July 1999 which was sent by the appellant's representative following upon the provision of the note of evidence before the Tribunal. That fax message simply stated that the representative would rely on paragraphs (b) and (c) of the application for leave to appeal. In these circumstances, it cannot be said that the commissioner erred in failing to allow an oral hearing. The fact that the adjudication officer supported the claimant's position is neither here nor there.
[9]The second ground of appeal is that the social security commissioner erred in holding that there was no record in the record of proceedings of evidence directed to the lower rate of mobility component. The third ground was that the commissioner erred in relying upon finding in fact 4 made by the Tribunal, whereas the finding indicated that the Tribunal had considered the requirements for the lower rate of the mobility component rather than that they had not considered it on the basis that there had been no evidence directed towards that lower rate: and, in any event, that the finding restated the wording of the statutory requirement in section 73 of the 1992 Act without recording the factual basis upon which the Tribunal made the finding nor giving any reasons in support of the finding. Ground 4 simply was that in all the circumstances no social security commissioner acting reasonably would have refused the appeal.
[10]These grounds were advanced in the argument before us and supported by a full reference to relevant decisions both of the social security commissioner and the courts. There was also a full reference to certain matters of evidence which it was suggested the tribunal might have considered. In our view, it is not necessary to enter into that degree of detail. The case seems to us to be essentially simple. The claimant maintained that she suffered from various disabling conditions and that these conditions satisfied the higher rate requirements or, in any event, the lower rate requirements. The examining doctor's assessment accepted that she did suffer from certain disabling conditions but held, in very clear and explicit terms, that she did not satisfy the requirements either for the higher rate of the mobility component or for the lower rate of the mobility component. The doctor found specifically that she was not disabled by either definition. The decision of the Tribunal was that the examining doctor's assessment should be accepted and the reason for that decision was that this was a decision by an independent medically qualified practitioner who had assessed the claimant's condition and needs. The assessment of the evidence is a question of fact and therefore a question for the Tribunal. In our view it is clear that the Tribunal considered all the evidence before them and gave a clear and sufficient reason for accepting the view of the examining doctor. As we have already said, the doctor's findings excluded both the higher rate and the lower rate of the mobility component and it is equally clear that the Tribunal accepted the evidence in regard to both. In these circumstances, it does not seem to us that there is the slightest ground for suggesting that the Tribunal failed to give a clear decision, failed to deal with any of the mattes relevantly before it or failed to give a sufficient explanation of its decision. In these circumstances, we would add, it may well be that the commissioner was wrong in embarking upon the exercise which he carried out of examining whether there had been evidence specifically directed to the lower rate of mobility component but that, in our view, has no bearing upon the question whether the appellant has drawn attention to any error in law on the part of the Tribunal. In all the circumstances, in our opinion, this appeal falls to be refused.