Smith v Secretary of State for Work And Pensions

1. LORD JUSTICE ALDOUS: Mr Edward Smith has for a number of years suffered from osteoarthritis. On 5th April 1994 he was awarded the mobility component of Disability Living Allowance ("DLA") at the higher rate for life and the care component at the lowest rate for life. In 1999 he was reassessed with adverse results. Mr Smith pursued appeals, as was his right, up to the Social Security Commissioners. In his decision of 27th February 2002, Mr Commissioner Jacobs dismissed Mr Smith's appeal with the result that Mr Smith was no longer entitled to the care component and the award of the mobility component ended on 1st March 2002. We were told that the mobility component has since been extended. Mr Smith was refused permission to appeal but permission was given by this Court.

2. In the appeal Mr Smith contends that the decision of the Commissioner was wrong in law in that he failed to approach the case as required by section 32, as it then was, of the Social Security Administration Act 1992. That contention requires an analysis of the Act, but the facts of the case are also important. I will deal first with the Act.

3. Part II of the 1992 Act provides for reviews of DLA awards and for appeals. Section 30 enables a review of DLA if the adjudication officer is satisfied inter alia that the decision was given in ignorance of or was based on a mistake of fact or there had been a relevant change of circumstances. It is not disputed that in the events that happened a review was properly instigated.

4. Section 32(4) limits the ability of an adjudication officer to review an award that is for life. The relevant parts are as follows:

"(4) Where a person has been awarded a component for life, on a review under section 30 above the adjudication officer shall not consider the question of his entitlement to that component or the rate of that component or the period for which it has been awarded unless—

(a) the person awarded the component expressly applies for the consideration of that question; or

(b) information is available to the adjudication officer which gives him reasonable grounds for believing that entitlement to the component, or entitlement to it at the rate awarded or for that period, ought not to continue."

The restriction upon the Tribunal is different. Section 33(6) provides:

"The tribunal shall not consider—

(a) a person's entitlement to a component which has been awarded for life; or

(b) the rate of a component so awarded; or

(c) the period for which a component has been so awarded

Unless—

(i) the appeal expressly raises that question; or

(ii) information is available to the tribunal which gives it reasonable grounds for believing that entitlement to the component, or entitlement to it at the rate awarded or for that period, ought not to continue."

5. Mr Smith's original award was based upon information supplied by him in his claim pack which he completed in April 1994 and a report from his doctor. He said, in answer to the questions posed in the claim pack, that he suffered severe osteoarthritis "thumbs, elbow, shoulder, knee, back, ankle, neck and toes." He said that he had difficulty in walking because his disease "caused pain in left knee. Occasionally pain in his toes. Caused a temporary loss of balance, i.e. stumble." The pain in his knees varied from very severe to almost none at all. He could walk 50 yards in two minutes. He said that he needed somebody with him when he was outdoors because sometimes very rarely his knee gave out and his legs folded under him: that, he said, had happened twice in three years. It took him about two minutes to get out of bed and therefore he would need help for four or five days a week. He also needed help having a bath because climbing in and out of the bath caused him pain in his knee, shoulder and elbow and that washing his back and hair caused pain in his shoulder and elbow. He also needed help to dress because putting on his shirt and jumpers caused pain in his shoulder and elbow, doing up buttons caused pain in his thumb and doing up his shoelaces caused pain in thumbs, elbow and shoulders. He also said that he needed help to get to and use the toilet because undoing his belt and flies caused pain in his thumbs. When asked how many days a week he needed help to get out of a chair, he said four or five times. He said that making the bed caused severe discomfort, as did putting on his shoes.

6. Part 2 of the pack seeks information as to the help that is needed during the day. Mr Smith said that he would need help four or five days a week for peeling and chopping vegetables, using cooking utensils, using taps and coping with hot pans. He said it was painful to light the gas oven. He said that he did cook two meals a day, but as the illness progressed and got worse "I may not be able to continue doing it myself, peeling vegetables was painful." He went on to say that he could manage to cut up food and to eat and to drink at the present, but that caused some pain due to the arthritis in his thumbs. Filling in the form caused pain and he was not able to do it in one go. He also said that he would need help to get undressed and get into bed four or five days a week and help on four or five nights a week getting to the toilet and using it. It was painful for him to change the sheets, turn over in bed, getting into the right position and getting the bedcovers back on the bed if they fell off.

7. Accompanying the form filled in by Mr Smith was the statement by his doctor, Dr Stewart. Dr Stewart confirmed that Mr Smith was suffering from osteoarthritis which affected his knees, elbows, thumbs and shoulders. He said that because of the pain in his knees, Mr Smith would have to rest every 50 yards when he walked. He was of the view that Mr Smith could dress and undress and tend to his own toilet needs without help, but did need help tightening up taps fully, lighting the gas oven but could use hot plates with difficulty. He needed help chopping up vegetables.

8. Clearly the information supplied by Mr Smith in April 1994 indicated that he was in pain due to his osteoarthritis when carrying out the normal functions of living. In his view he needed help to get up, go to bed, bathe and cook. It was upon that information, together with the report of the doctor, that he was awarded the mobility component at the higher rate and the care component at the lowest rate for life.

9. On 25th January 1999 Mr Smith told the DLA helpline that he had lost his vehicle excise duty exemption certificate in respect of a vehicle which he used in his business of repairing TVs and videos. That prompted the Secretary of State to make enquiries as to the applicant's health. On 2nd March 1999 Mr Smith was examined by Dr Hampton. In his report Dr Hampton set out first what he had been told by Mr Smith. Mr Smith told Dr Hampton that he was able to walk without a walking stick; standing still was worse than walking but he did not normally walk more than 50 yards at a stretch. He did not need guidance or supervision when walking outdoors but his condition was getting steadily worse. He sometimes needed painkillers before getting up, but mostly he had no problem moving about indoors. He could go to the bathroom and the toilet unaided and did not need help with his medication and had no problems at mealtimes. He could prepare a meal and use the cooker, although bending to light the oven was difficult and peeling vegetables was painful. He had no problems going to bed. He did not have any fits or blackouts and did not need help with his toilet needs. He told Dr Hampton about a skin complaint. What he said about the treatment was reported by Dr Hampton in these terms:

"Sometimes I have a course of steroids for it, and when I do the joints feel better for a while. I had finished taking steroids about a month ago, so the joints have got worse again. At the moment my joints are a little better than average."

The fact that Mr Smith was not taking steroids at the time of the examination was important as they might have masked the symptoms that he suffered from his osteoarthritis.

10. Dr Hampton reported that Mr Smith was a tall, heavily-built man who looked younger than his years. He was cheerful in his demeanour. As to his upper limbs, he reported that the left elbow lacked 10% of flexion, otherwise his shoulders, elbows, wrists and fingers showed a full range of apparently pain-free movement and none of the joints were inflamed, thickened, deformed or swollen and there was no joint tenderness. Mr Smith's hips showed a full range of pain-free movement. The knees were normal in appearance with no tenderness or swelling. They showed a full range of pain-free movement. He had flat feet, but there was no local tenderness. He had a full range of movement in ankles and feet. He could tiptoe and he could squat fully and rise readily from the squatting position without assistance. His back had no deformity, local tenderness or muscular spasm. He could bend down and touch his toes with knees straight. His gait was such that he rose with alacrity from his chair and walked normally and briskly indoors. He had normal hearing and eyesight.

11. In Dr Hampton's view, Mr Smith was safely mobile throughout his home and he concluded that he could walk more than 100 metres on most days without severe discomfort. Dr Hampton accepted that his feet and knees might give some, but not severe, discomfort over that distance. His likely speed of walking might be slower than that of a normal person. In his opinion he did not need help carrying out any of the normal household activities.

12. On 29th March 1999 the Secretary of State sought a review of the decision of 17th May 1994 granting Mr Smith his mobility and care components of DLA. The adjudication officer, Mr Craine, concluded on 12th April 1999, that there had been a relevant change of circumstances since the decision in 1994 and that Mr Smith "now has less care and mobility needs". His reasons for his conclusion were that Mr Smith was not in his view so severely disabled mentally or physically that he required attention or supervision by day or by night to the extent that only the care component could be properly payable. He was able to prepare a cooked meal for himself and was not suffering from a physical disablement such that he was unable to walk without guidance or supervision.

13. It was suggested that by Mr Boyd on behalf of Mr Smith that in doing so the adjudication officer had not complied with the provisions of section 30(2). That I reject. The decision is, I believe, only consistent with a comparison having taken place.

14. Mr Smith consulted the Citizens Advice Bureau in Tavistock to aid him in his appeal against the decision of the adjudication officer. That resulted in a review. The conclusion of the reviewing officer was that Mr Smith was not entitled to any rate of the mobility component nor the care component. Mr Smith appealed to the Appeal Tribunal. The first hearing proved abortive and the case was relisted. That resulted in further written submissions on behalf of the Secretary of State. In that submission dated 24th February 2000 it was stated that the adjudication officer who had reviewed the matter in 1999 had come to the conclusion that there had been a change of circumstances and that that had given grounds for review. It was submitted on behalf of the Secretary of State that in fact there had been no change of circumstances and therefore the ground of review stated by the adjudication officer was inappropriate. The submission went on to point out that the appeal before the Tribunal was a rehearing of the whole case. That of course was correct, as section 32(6) allowed the Tribunal to consider Mr Smith's entitlement to the life awards if that was expressly raised or there was information which gave the Tribunal reasonable grounds for believing that Mr Smith was not entitled to the award. In this case Mr Smith's entitlement to the life awards had been expressly raised.

15. The Appeal Tribunal stated its reasons in writing on 21st March 2001. It summarised the basis upon which the original award was made in paragraph 3 of it decision and then reviewed the circumstances leading up to the hearing before the Tribunal. It continued in paragraph 13:

"13. In relation to the matters of life award removal, and grounds for review, having noted all the background issues relating to these questions, today's Tribunal find that, despite Mr Smith's age, and in relation to the activities of small scale self-employment that are accepted, the basis of review was in fact as originally put forward, an indicated change of circumstances. This was, in the tribunal's view, that, over a period of time, his needs, particularly in relation to care, had lessened. The tribunal also considered that in relation to information put before it, following the Secretary of State's intervention, it had the jurisdiction to carefully consider an earlier life award, and if necessary either remove or alter its length."

In my view, there can be no error in that paragraph.

16. The Tribunal then went on to set out the further findings of fact to which it arrived after having questioned Mr Smith. It then concluded:

"16. In relation to all the aforementioned factors, the tribunal further find as follows.

17. Applying the balance of probabilities test to all the aforementioned evidence, the tribunal find that there were grounds to review the earlier life awards, based on a change of circumstances, i.e. an apparent improvement in Mr Smith's condition, particularly in relation to an apparent lessening of his care needs, but also in relation to raising the issue as to whether he was still virtually unable to walk, and, if he was, whether a life award was appropriate, despite the fact that he was now aged 62.

18. The tribunal also was satisfied that, in accordance with the then criteria, it was entitled to consider all the evidence before it, in taking the possible further step of either removing or reducing the earlier life award.

19. The mobility question. Having taken all the evidence into consideration, the tribunal considered that the issue of virtual inability to walk was very much a borderline situation, with Mr Smith just coming down on the side of being still virtually unable to walk. However, the tribunal felt that it was appropriate to make a fixed award, running from 02 03 99, i.e. when it was removed, to 01 03 02, when the matter could then still be looked at afresh in relation to the situation then. There were grounds to review, but not to revise with regard to removing the mobility component completely, but only in relation to changing the life award to a fixed period award.

20. Care needs. Having particularly noted Mr Smith continuing small scale activities in the self-employment line of TV repair work, noting that this involved bench work, use of a screwdriver etc, and also involved a certain amount of driving his manual gearbox vehicle, in the conduct of such activity, the tribunal was well satisfied that there was no entitlement to the lowest rate care component as had been earlier awarded but removed from 02 03 99. The tribunal was satisfied that, due to these activities, Mr Smith could manage the activities involved in the main meal test, and, for completeness, did not require attention for a significant portion of the day. There was no question of his requiring frequent attention throughout the day, or indeed any prolonged or repeated attention at night. Therefore no entitlement to a care component from 02 03 99."

17. In those four paragraphs, the Tribunal carried out both a comparison and an analysis of Mr Smith's needs and then came to conclusions of fact.

18. The Tribunal went on to give reasons for its decision in these terms:

"24. Reasons for decision. All the essential factors have already been dealt with in some detail in the aforementioned findings, it now suffices briefly to confirm why the tribunal has made a short award of higher rate mobility component, from the date when it was removed, but had made no similar award with reference to a care component. As noted above the Tribunal felt that all the circumstances indicated that there had been a change of circumstance from when the earlier award had been made, in relation to an apparent improvement to Mr Smith's medical condition. This was particularly noted in relation to his recent activities in TV repair work. Similarly, the tribunal was satisfied that it could take into account evidence that had been put before it, in considering whether an earlier life award should be either removed or shortened. Arising out of those principles, the tribunal felt that, whilst it was very much a borderline case, that Mr Smith still just came within the definition of a virtual inability to walk, but that that situation may not necessarily continue. Hence the short further award of higher rate mobility component. With reference to care needs however, bearing mind his still continuing small scale activities in TV repair work, the tribunal was well satisfied that such work led them to accept that he could reasonably also carry out such activities as preparing a main meal for himself, and similarly, he did not require attention for a significant portion of the day in relation to care needs. There was no question of the evidence indicating an award of middle or highest rate care component, the tribunal also, when considering those issues, noting the further evidence about Mr Smith having suffered a return of depression, doubtless exacerbated by the removal of his earlier life award. Whilst appreciating the points put forward by his representative on this matter, it was particularly significant that such problems had received virtually no mention until recently, when his GP Dr Stewart confirmed that it would be excellent occupational therapy for him to carry out some work in the TV repair line. In the tribunal's view this, and the other evidence, fell far short of indicating a situation with reference either to continuous supervision throughout the day, or alternatively e.g. prolonged or repeated attention by night."

19. Mr Smith appealed to the Social Security Commissioner and, as I have said, Mr Commissioner Jacob dismissed his appeal. He concluded that the Secretary of State was entitled to collect evidence from an examining medical practitioner and that the Tribunal had properly realised that the onus was upon the Secretary of State to satisfy the Tribunal that the components were incorrect. There was in the Commissioner's view ample evidence for the Secretary of State to suspect that Mr Smith was not entitled to his award and that the findings of the Tribunal as to their conclusions spoke for themselves. He concluded that the reasons of the Tribunal were clear and detailed and there was no error of law.

20. I have read for myself all the answers in the claim pack given by Mr Smith when seeking DLA, some of which I have referred to in this judgment. The health of Mr Smith as portrayed by him in 1994 can be compared with his health as recorded by Dr Hampton's report, both in the answers that he gave to Dr Hampton and in the results of the examination. That comparison shows that either Mr Smith did not correctly fill in the pack in 1994, or his condition has improved. It may be that he misunderstood how to fill in the questions in the pack, but some of the questions are only consistent with him having a proper realisation of what he was saying. I am prepared to accept that they accurately recorded that which Mr Smith intended to convey and his counsel did not suggest that such an approach was other then proper. Whereas his health, according to the information supplied in 1994 could form a basis both for a mobility and care component for life, the information obtained in 1999 could not justify the awards made, in particular the care award. That being so there could not be a good reason for allowing the appeal and remitting the case back for further consideration. The result would be that upon the 1999 report, which was confirmed by Mr Smith's oral answers given to the Tribunal, that the conclusion reached by the Tribunal would have been the same.

21. Mr Boyd, who appeared for Mr Smith, sought to persuade this court that the evidence of Mr Smith's condition supplied in 1994 did not seriously differ from that which became available as the result of Dr Hampton's examination. He drew to our attention that Mr Smith had been on steroids for his skin complaint and submitted that they could have masked Mr Smith's difficulties when examined in 1999. In support he drew to our attention a letter from Dr Stewart dated 7th December 2000. In that letter Dr Stewart said that Mr Smith had been suffering from lichen planus, which was severe enough for him to require fairly frequent courses of oral steroids, the doses being tailed off over many weeks. That particular treatment had been recommended by Dr Kersey, a consultant dermatologist at the Tavistock Hospital in 1997. Dr Stewart said:

"Whilst he is having the steroids for his skin condition there is a marked improvement in his osteoarthritis pain, but it is not safe because of potential side effects to keep him on the steroids all the time."

I accept that the steroids did on occasions mask Mr Smith's condition, but they had not been taken for a month before Dr Hampton examined Mr Smith. Further, Mr Smith told Dr Hampton that on the day of the examination his joints were a little better than average. Thus Dr Hampton knew the true position and that must have been apparent to the Tribunal.

22. In my view the only possible conclusion, after Dr Hampton's report, was that there had been a change in circumstances from 1994 to 1999, upon the assumption that Mr Smith had properly completed the questionnaire in the claim pack. That was a proper assumption to make in the absence of any alternative explanation.

23. Mr Boyd also criticised the decision of the Tribunal upon the ground that it had not set out what were the circumstances that had changed. I reject that criticism. The Tribunal summarised the evidence upon which the original award was made. It recorded how the award came to be reviewed and the results of the medical examination that ensued. The Tribunal questioned Mr Smith and concluded that there had been a change in circumstances. Clearly it considered Mr Smith's mobility and need for care as of the date of its decision in the context of what had been the health of Mr Smith in the past. The decision involved continuous comparison. There was no need to say what had changed. The criticism involves reading the decision in parts. Taking it as a whole, it compares the evidence in 1994 to that in 1999. In any case, the Tribunal was entitled to consider the correctness of the award under section 33(6)(c).

24. The appeal to the Commissioner and to this Court is only upon a point of law. I cannot find any error of law. There was ample evidence for the Tribunal to conclude as they did that Mr Smith's needs did not satisfy the criteria for a care award and that his need for the mobility component should be reviewed after three years. I therefore would dismiss the appeal.

25. LORD JUSTICE MANCE: I agree. There is nothing that I would wish to add to what my Lord has said.

26. MR JUSTICE NEWMAN: I also agree.

ORDER: Appeal dismissed; no order for costs, save for detailed assessment of the appellant's costs.

(Order not part of approved judgment)