C DLA Amputation

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					                                                              Decision No: C27/97(DLA)


                      (NORTHERN IRELAND) ACT 1992

                      (NORTHERN IRELAND) ACT 1992

                         DISABILITY LIVING ALLOWANCE

                     Appeal to the Social Security Commissioner
                       on a question of law from the decision of
                        Dungannon Disability Appeal Tribunal
                                dated 28 January 1997


1.    This is an appeal by the claimant against a decision of the Disability Appeal
      Tribunal given on 28 January 1997 to the effect that (1) the claimant is entitled to
      high rate mobility component from and including 16 February 1995 until 29
      March 1996, and (2) the claimant is entitled to the middle rate care component
      of disability living allowance from and including 16 February 1995 to 29 March
      1996 and the low rate care component of disability living allowance from and
      including 30 March 1996 for life. Leave to appeal was granted by a Social
      Security Commissioner on 11 June 1997.

2.    This case has a long history. A Disability Appeal Tribunal hearing was held on 9
      November 1995 and it was decided that the claimant did not satisfy the
      conditions of entitlement for an award of the higher rate of the mobility
      component and the middle rate of the care component from 30 March 1995 to
      29 March 1996. Instead the Tribunal awarded the lowest rate of the care
      component in respect of the main meal test from and including 30 March 1995.
      On 19 November 1996 a Commissioner decided that the Tribunal of 9
      November 1995 had erred in law in reaching its decision. The Commissioner
      decided that the Tribunal had misdirected itself in respect of both the qualifying
      period and the prospective test and that he would have expected findings and

     reasons to indicate why the Tribunal decided to make a life award of the lower
     rate of the care component. Accordingly the Commissioner referred the case to
     be redetermined by a differently constituted Tribunal. The decision of this new
     Tribunal is the decision presently under appeal.

3.   I held an oral hearing at which the claimant, who was present, was represented
     by Mr Barry McVeigh of the Northern Ireland Association of Citizen Advice
     Bureaux. The Adjudication Officer was represented by Mr G L Shaw.

4.   At the hearing Mr Shaw pointed out that, in effect, I was seised of an appeal
     from the Tribunal concerning the claimant's rights to disability living allowance.
     The present practise of Tribunals using two separate forms of decision for both
     the care and mobility components in disability living allowance appeals obscures
     the legal reality that disability living allowance is one single benefit, though
     consisting of two components (section 71(1) of the Social Security Contributions
     and Benefits (Northern Ireland) Act 1992). This can cause confusion, as it did in
     this case, where both decisions, as typed up, refer to the mobility component as
     being the subject matter of the decisions, even though one decision, on close
     perusal, referred to the care component. The confusion was made all the
     greater as the record of proceedings and the findings of fact in each decision
     form were identical, leading to the irresistible conclusion that there was in fact
     only one actual hearing, even though the Tribunal came to two separate
     decisions set out in two separate decision forms. A decision on a single
     decision form in this case would have obviated these difficulties.

5.   The facts are that the claimant on 30 December 1994 underwent an amputation
     of his left leg above the knee and was fitted with an artificial leg in or about the
     end of January or the beginning of February 1995. The Tribunal, on appeal, in
     respect of the mobility component held that he was entitled to high rate mobility
     component from and including 16 February 1995 until 29 March 1996. The
     reasons for the Tribunal's decision in relation to the mobility component were as

            "Already awarded high rate mobility component 30 March 1995 -
            29 March 1996. We believe an earlier start date appropriate
            that is from emergency admission on 17 November 1994. Allowing
            for the 3 month award runs from 16 February 1995. In other
            respects, and noting award not in dispute the Tribunal decided
            not to otherwise interfere with same. We did not believe it
            appropriate to extend award beyond 29 March 1996. At the last
            hearing appellant admitted that he had adjusted to artificial
            limb by end of April 1996 and they noted no evidence of falls;
            Also he could walk using a walking stick as opposed to crutches.
            Doctor H… in report dated 29 April 1995 confirmed appellant
            could weight bear on both lower limbs. On self assessment form
            appellant referred to 25yds in 3/4 minutes. Doctor M…, South
            Tyrone Hospital, on 7 November 1996 referred to walking 100 yards
            on flat ground.

           Today appellant spoke of 40/50 yards in 3/4 minutes, resting for
           1/2 minute and then could do the same again. On balance of
           probabilities the Tribunal is of the opinion that by 30 March 1996
           appellant had adjusted to his artificial limb and could walk a
           reasonable distance in reasonable time, speed and manner without
           severe discomfort. We believe that none of the criteria is satisfied
           to render appellant virtually unable to walk from 30 March 1996.
           We also believe that the appellant could, from then, take advantage
           of his walking faculty on unfamiliar routes outdoors, without
           guidance/supervision, most of the time. In relation to falls -
           see care component. Also low rate mobility component is not to
           avoid danger."

6.   The Tribunal, on appeal, in respect of the care component held that he was
     entitled to the middle rate care component from and including 16 February 1995
     to 29 March 1996, and to the low rate care component from and including 30
     March 1996 for life. The reasons for the decision were as follows:-

           "Tribunal decided not to interfere with award already made in respect
           of 30 March 1995-29 March 1996. However, we believe that frequent
           attention would have been needed with bodily functions following
           every hospital attendance on 17 November 1994 and accordingly
           allowing for 3 month qualifying period the start date of award
           is now 16 February 1995. By 30 March 1996 the Tribunal is of the
           opinion that the only help required was as noted per out findings.
           We are of the opinion that this would constitute help for a
           significant portion of the day but not frequent attention with
           bodily functions. We also accept that standing, holding/lifting
           saucepans would be a difficulty in preparing a cooked main meal.
           Weighing up all the evidence including that recorded at hearing
           on 9 November 1995 the Tribunal, on balance of probabilities,
           is of the opinion that low rate care component appropriate
           from 30 March 1996 and award for life. We do not have any
           evidence to suggest appellant's condition will significantly
           improve and indeed we note recent claudication in other leg
           and angina. Although hypo(s) at night was mentioned, given the
           frequency of same as per our findings and duration 15-20 minutes,
           the Tribunal is of the opinion that same does not require prolonged/
           repeated attention with bodily functions. Further, it is not
           necessary for someone to be awake for prolonged periods/frequent
           intervals to avoid substantial danger. We also note appellant
           does get warning - sweating - and we believe that it would be
           reasonable to have milk and biscuits by the bedside or chocolate.
           Appellant mentioned falls but in the context of different ground
           levels. With care the panel if of the opinion that appellant
           can avoid risk of falls and that there is no risk of substantial
           danger such as to require continual supervision."

7.   The findings of fact material to the Tribunal's decision were as follows:-

            "1.    Admitted to Belfast City Hospital as an emergency on
                   17 November 1994 due to sudden pain in left calf.

            2.     On 21 December 1994 admitted to Belfast City Hospital and had
                   left leg above knee amputation 30 December 1994 and then
                   discharged to Musgrave Park Hospital on 5 January 1995.

            3.     Had femoral popliteus arterial by-pass on right leg 1988 and
                   on left leg in 1990 with further surgery in 1991 and 1992.

            4.     Insulin dependant diabetic - under control. Does have some
                   hypo(s) during the night causing sweating but not loss of
                   consciousness. Between 2-3 mornings tends to experience
                   hypo(s). Can occur 2/3 times week, 1 week and some weeks
                   none. Takes 2-4 digestive biscuits and glass of milk. Admits
                   could take some chocolate. Although appellant does not keep
                   biscuits/milk by the bed. Tribunal is of the opinion that it
                   would not be unreasonable to do so. Monitors during the
                   day and can avoid hypo(s).

            5.     Department award middle rate care component 30 March 1995-
                   29 March 1996. Tribunal find that 3 month qualifying period
                   runs from 17 November 1994 when admitted to Belfast City
                   Hospital. We accept that frequent attention with bodily
                   functions would have been needed from that date of operation
                   and the following operation to adjust to loss of part of
                   lower limb. Department did not dispute award running to
                   29 March 1996 and Tribunal decided not to interfere with end
                   date for mobility rate award. From 30 March 1996 Tribunal
                   accepts appellant's evidence that help needed putting on socks,
                   limb, taking 15 minutes or so in morning. Also someone to help
                   him coming downstairs. Has downstairs toilet to avoid having
                   to use stairs during day.

            6.     From October 1996 some angina which is relieved with inhaler/
                   spray. Some recent claudication right leg.

            7.     Appellant works, initially part time following amputation but
                   has resume full time employment again as a Civil Servant -
                   seated job. Drives automatic car.

            8.     High rate mobility component awarded 30 March 1995 - 29 March
                   1996. Tribunal of opinion that appellant would have been
                   virtually unable to walk following emergency admission to
                   Belfast City Hospital 17 November 1994. Accordingly, start
                   date of award should be from 16 February 1995 allowing for

                   3 qualifying months. From 30 March 1996 Tribunal believes
                   that appellant could walk a reasonable distance in reasonable
                   time, speed and manner without severe disablement. The
                   exertion of walking would not cause danger to life or serious
                   deterioration to health.

            9.     Can take advantage of walking faculty when outdoors on
                   unfamiliar routes without guidance/supervision, most of the

            10.    Cannot prepare a cooked main meal for himself if he has the

            11.    Mentally competent, aware of dangers, not aggressive/
                   destructive, does not wander. Not prone to fits blackouts,
                   seizures or such likes."

     These findings of fact related to both the care and the mobility component.

8.   The claimant appealed this decision on the ground that there had been a failure
     to state adequate findings of fact and reasons for the decision. In particular the
     claimant relied on the fact that whilst the Tribunal was furnished with reports
     from Mr H…, Consultant Surgeon, dated 24 January 1997, and Dr H…,
     Consultant Physician, dated 27 July 1997, on the condition of the claimant, the
     matters mentioned in the reports were not addressed in the Tribunal's findings of
     fact. Consequently it was argued on behalf of the claimant that the Tribunal's
     decision neither accepted or rejected the evidence contained in the reports. If
     the Tribunal is deemed to have rejected the findings of fact, no reasons were
     given for the rejection.

9.   Mr Shaw in his written submission dated 27 June 1997 submitted as follows:-

            "The issue before the tribunal was the claim dated 25 January 1995.
            The appeal is made on the basis that the tribunal's record of
            proceedings does not make it clear whether the evidence from the
            consultants Mr. H… and Mr. H… was accepted or rejected.

            I submit that the only point in the two letters in question which
            would have merited specific mention was the reference by Mr H…
            to discomfort on walking. I concede that this probably did merit
            mention, as it undoubtedly was in Mr F... 's favour, and its omission
            tends to give the impression that the tribunal only took account
            of the evidence which was unfavourable to the claimant. As severe
            discomfort is central to the argument in the mobility component,
            it would be an essential part of the tribunal's function to determine
            whether they accepted that there was discomfort, and if so whether
            it amounted to severe discomfort.

             All this is closely related to the need to make findings as to the
             factors in regulation 12(1)(a) of the Disability Living Allowance
             regulations. The tribunal chairperson did not record specific
             findings, merely recording "a reasonable distance in reasonable
             time, speed and manner without severe discomfort". While it has
             been held that findings are not required in every case (see
             CDLA/2554/95 - para 11) the Commissioner may wish to consider
             whether in this case the findings are adequate."

10.   It was made clear by Mr McVeigh at the hearing he was only submitting that the
      Tribunal's decision in relation to the mobility component was in error.

11.   It is evident that the Tribunal did not take into account the evidence of the two
      Consultants in favour of the claimant. No grounds were given for discounting
      this evidence. It seems to me that a Tribunal should not come to a conclusion
      inconsistent with such evidence without giving good reason. To emphasise the
      relevance of these reports I quote them in full. Mr H... 's report dated 24
      January 1997 states as follows:-

             "Mr F... has been a patient at the Belfast City Hospital since 1988.
             He originally attended Mr R… C… and underwent arterial
             surgery in June 1988. He has continued for regular review since
             that time and in 1992 had to have arterial surgery to the left leg.
             Unfortunately the bypass in the left leg failed in late 1994 and
             Mr F... subsequently had an above knee amputation. When he was
             reviewed at the Hospital after his amputation it was noticed that
             his right leg was extremely swollen and I think it is most likely
             that he had an extensive deep venous thrombosis. By the time he
             was reviewed at the hospital, the swelling in his leg had been
             present for many weeks and I did not think it was worthwhile
             investigating or treating this. I did however arrange for him
             to have compression stockings to attempt to reduce the oedema in
             the leg. The arterial supply in the right leg seems to be fairly
             healthy at this time and Mr F... reports ache and pain in the leg
             on walking. It seems most likely that this ache and pain is due to
             venous claudication.

             There is no curative treatment for venous claudication and the vast
             majority of patients are managed conservatively. Hence I have
             not arranged any further investigations at this stage.

       I write this letter because it seems to me that anyone who has had
       an above knee amputation on one side and continues to have discomfort
       in the right leg on walking must be eligible for some kind of
       living assistance whether it be expenses or assistance with
       transport. Without knowing the bureaucratic mechanisms of the
       disability living allowance I would ask that strong consideration
       be given to assisting Mr F... as I do feel he has continuing
       Yours faithfully
       R J H... MD FRCS

Dr H…'s report states as follows:-

       "This gentleman has had diabetes mellitus since 1972.

       Secondary to this condition he has developed widespread vascular

       Owing to peripheral vascular disease he had a left knee amputation
       in December 1994. He now has a prosthesis but there have been
       considerable problems owing to pain and discomfort at the stump
       and this has limited his mobility quite considerably. You will
       be well aware that an above knee prosthesis is considerably more
       difficult to use than a below knee prosthesis.

       He also has claudication affecting his right leg. The consequence
       of the sum of these two problems affecting his legs is that his
       mobility is limited considerably. This limitation of mobility is
       exacerbated by his having developed angina of effort (for which
       he is being treated with Elanatan LA). His present exercise
       tolerance is limited to a maximum of 50 yards; owing to this it
       appears to me appropriate that he should be reinstated with
       "an orange sticker". When one, for example, takes his attending
       this Hospital, he is unable to walk from the conventional car
       park to the Diabetic Clinic or the Vascular Clinic owing to the
       problems outlined above.

       With respect to his diabetes, his impaired mobility means that he
       is no longer able to deal satisfactorily easily or safely with
       hypoglycaemic attacks. As a consequence of his improving his
       diabetic control he has more frequent (and occasionally more severe)
       hypoglycaemic attacks. This problem has been particularly prevalent
       at night lately.

       Owing to these problems it appears to me that he fulfils the
       necessary criteria for the "high rate" care component of disabled
       living allowance.

             If you wish to have any further information, please don't hesitate
             to contact me. I am sure you will consider Mr F... 's appeal in the
             light of what I think must be extra information provided by me
             about his situation.

             W… H… MD FRCP FRCPI FRCP(G)

12.   The legislation relating to the mobility component of disability living allowance
      provides that a person shall be entitled to the higher rate of the mobility
      component if they are unable or virtually unable to walk (Social Security
      Contributions and Benefits (Northern Ireland) Act 1992, section 73(1)(a)).
      Regulations further provide that in determining whether a person is virtually
      unable to walk, consideration must be given to the distance, speed, time and
      manner of walking, and, only walking which can be achieved without severe
      discomfort can be taken into account. (The Social Security (Disability Living
      Allowance) Regulations (Northern Ireland) 1992, regulation 12(1)). There is no
      doubt that the claimant is not unable to walk but he has difficulties with walking.
      Therefore the question to be decided in relation to the mobility component at the
      higher rate is whether he can be regarded either as virtually unable to walk.

13.   Mr McVeigh submitted that all the objective evidence pointed to a high degree of
      immobility. Mr Shaw agreed with this assessment. Many of the findings of the
      Tribunal confirm this. However, the conclusion that the Tribunal came to,
      namely that it believed that the claimant could walk a reasonable distance in
      reasonable time, speed and manner without severe disablement from 30 March
      1996 seems to be inconsistent with much of the rest of the evidence, which
      suggests that he is virtually unable to walk.

14.   It is clear from the medical reports that the claimant's condition is not likely to
      improve. It was urged upon me by Mr McVeigh and Mr Shaw to take that into
      account when coming to a decision in this case.

15.   For the reasons stated I conclude that the decision of the Tribunal was
      erroneous in point of law in that it came to a conclusion inconsistent with the
      evidence. Both Mr McVeigh and Mr Shaw submitted that this was an
      appropriate case for me to give the decision which I consider the Tribunal
      should have given. In the circumstances I consider that it is appropriate so to do
      as, on the present state of the evidence, a Tribunal would be obliged to come to
      the conclusion that the claimant is entitled to high rate mobility component of the
      disability living allowance from and including 16 February 1995 for life.
      Accordingly I exercise the power to set aside the decision of the Tribunal on the

mobility component and give the decision that the claimant is entitled to the
allowance set out in the previous sentence. This conclusion does not affect the
decision of the Tribunal in relation to the care component.

(Signed): J A H Martin


12 December 1997


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