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Please note: this decision has been reproduced in plain text only. If you wish to submit a copy of a decision as part of an appeal, please download a Word copy from the link below [ref.xd1]:
1. This appeal, brought with my leave, fails. The decision of the tribunal on 12 3 04 was not erroneous in law.
2. The claimant, born on 16 9 45, was struck down on 4 10 03 by Guillain-Barre syndrome (GBS), a most unpleasant condition which must have been very frightening for both herself and her husband. She was in hospital from 22 10 03 to 22 11 03. Her husband obviously feels dissatisfied with the treatment she received and the slowness with which the diagnosis was made. But this was not a matter for the tribunal. The claimant claimed disability living allowance (DLA) on 3 12 03, and a decision made on 8 1 04 refused benefit.
3. The GP’s report of 22 12 03, which appears to have been completed with care and based on information, possibly from the hospital but at any rate as reported by the claimant on 25 11 03, speaks of slow improvement after the first acute stage and gives a prognosis of further improvement and a full recovery, though without any indication of time. The claim pack itself (page 44) indicates some improvement.
4. Mr Derek Cole from the GBS support group put in a written submission and represented the claimant at the hearing. He argued for higher rate mobility, saying that because of the demyelination which occurs with GBS, every movement occasions severe discomfort in the Cassinelli (R(M)2/92) sense of “discomfort less than pain”. He argued for the cooking test, saying that it was “impossible” to prepare vegetables and would be extremely dangerous for the claimant to handle hot pans of water or fat. Her husband was in fact looking after her. She was on a drug regime including Tramadol, for moderate to severe pain. Mr Cole submitted that the claimant “clearly” fell within the 10% of GBS sufferers who have “severe and persistent disability”.
5. To qualify for DLA a person must have been suffering a qualifying level of disablement for three months before an award can begin, and be likely to continue to suffer such a level for a further six months: Contributions and Benefits Act 1992, ss72(2) and 73(9).
6. The tribunal conducted a careful hearing and ascertained the claimant’s then physical state and that she was slowly improving. She had come off Tramadol in early February. About a month previously (February 2004) she had been able to walk 100-150 yards in Marks & Spencers or for about half an hour. She still did not consider herself fully able to walk completely independently, as she leaned on her husband for support as well as using a stick. Otherwise she was self-caring.
7. The tribunal decided that the claimant would have begun to qualify for DLA three months after the disease struck, just a few days before the date of the decision. It further decided, on the basis of the claimant’s oral evidence of continued improvement, that she would have continued so to qualify for a while thereafter, but that she was not likely to continue so to qualify for a further six months thereafter.
8. The appeal was on the ground that the tribunal had, in expressly relying on the claimant’s condition at the date of the hearing, erred in taking into account circumstances arising after the date of the decision, in contravention of s12(8)(b) of the Social Security Act 1998. I gave leave to appeal on this ground.
9. The Secretary of State’s officer submitted that what the tribunal had done, and what it was entitled to do, was take into account the proof, as at the date of the hearing, of the continuation of the improvement that had already begun, as indicated by the earlier evidence. This gradual but continuing improvement was not a fresh “circumstance” that had not prevailed at the date of the decision. R(DLA)3/01 showed that this approach was to be followed. The officer, as the representative points out, wrongly stated that the tribunal found the claimant would have qualified for benefit at the date of the tribunal hearing. It did not. He attached an extract from chapter 15 of the Disability Handbook dealing with GBS, which spoke of recovery by 70-80% of patients within weeks or months, subject to about 10% of patients who would not recover.
10. The representative objected to the Secretary of State having earlier relied on the Disability Handbook without including a copy in the papers. But I cannot accept this, as the original grounds of appeal show he had access to it (though he somewhat misrepresents what it says) – as indeed he should have, if he regularly represents claimants.
11. He went on to say that his own experience in the GBS support group belied recovery within a short period, that GPs know nothing about GBS, and that chapter 15 of the Disability Handbook is “largely a work of fiction” and its projected recovery periods “without foundation, pe[r]jorative and unlawful”. The claim form “unlawfully” failed to disclose the Cassinelli definition of severe discomfort as less than pain.
12. The problem with these criticisms is that the tribunal was prepared to accept that at the date of the decision, and for some time thereafter, the claimant satisfied the statutory tests. But it took into consideration, as I accept the Secretary of State’s submission that it was entitled to do, the claimant’s improvement by the date of the hearing as evidence (borne out by the earlier medical evidence) that the history was one of continued improvement, and it formed the view that the six-months test would not be fulfilled. This was a decision for it to make, and I cannot intervene on a point of law appeal unless that decision was perverse – which Mr Cole has not persuaded me that it was. If the decision was wrong on a point of fact, the claimant is free to reapply.
13. It is important to remember that a person may cease to qualify for DLA well before a complete recovery – or as complete a recovery as she is going to make. This claimant was clearly no longer suffering severe persistent disability, she was suffering impairment. The tribunal had to assess the functional level of this impairment, and the GP’s evidence, supporting the claimant’s own evidence, seems to me adequate to allow it to do so, whether or not he was familiar with GBS as a condition.
14. I understand Mr Cole’s point about s12(8)(b); but the tribunal was not (albeit that they sometimes wrongly do) looking only at the date of hearing evidence.
15. If he feels aggrieved about the form of the claim pack or the contents of the Disability Handbook, Mr Cole should address himself to the Department for Work and Pensions, not to the tribunal or to me.
16. In conclusion, Mr Cole asks me for general guidance on whether tribunals are permitted to ask what advice claimants have received in completing the claim pack, on the analogy of legal professional privilege. My answer is that they are in principle entitled to ask questions which may result in this advice being disclosed. Strict rules of evidence do not apply in tribunals. It will often be relevant to find out whether a claimant filled in the claim pack herself, since the DLA claim packs, unlike those for incapacity benefit, do not contain any direct question about this. The tribunal may, as in the present case, want to check that the claimant agrees with the contents. If a worse state of incapacity is claimed following the retaining of a representative, or if the claim pack suggests a worse state of affairs than the medical evidence would apparently warrant, the tribunal will want to know how to weigh what may appear conflicting evidence. There is nothing sinister in questions directed to any of these points, nor others which may reasonably occur to a tribunal.
(signed on original) christine Fellner
12 July 2004