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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]:
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1 I allow the appeal.
2 The claimant and appellant is appealing with my permission against the decision of the Truro appeal tribunal on 6 August 2002 under reference U 03 194 2002 00862.
3 For the reasons below, the decision of the tribunal is set aside. I replace the decision of the tribunal with the decision that it should have made. This is:
The claimant is entitled to the higher rate of the mobility component and highest rate of the care component of disability living allowance from and including 20 December 2001 to 11 August 2002.
4 I deal with this appeal decision as a matter of priority as it concerns a person to whom most unfortunately the “special rules” for the terminally ill apply.
Background to this appeal
5 The claimant applied for disability living allowance on 20 December 2001 under the special rules. He was suffering from prostate cancer and had been told the previous month that his live expectancy was limited. On 28 January 2002 he was awarded the lowest rate of the care component from and including 3 March 2002. This was later revised to 26 February 2002. Following further correspondence and telephone calls, the appealed, saying “I am sorry I have to elect for a paper hearing. My condition and any treatment it may demand severely limit my ability to make appointments with any degree of certainty that I would be able to attend. I would like to appeal the decision not to award me disability living allowance under the special rules for the terminally ill. I would like to appeal the decision to award only the lowest rate of the care component … I would like to appeal the decision to withhold payments for three months.” He set out in full detail his condition and needs and attached confirmatory medical evidence from several sources.
6 The tribunal decided the case at a paper hearing. On the application of the special rules the tribunal decided:
“The Decision Maker concluded that [the special rules] were not satisfied. Having noted numerous documents on the attached appeal papers, for example documents 41 and 43, 46 and 55, etc, the tribunal concur. The tribunal therefore proceeded to hear the appeal on the normal basis…”
The tribunal went on to consider, and confirm, the decision awarding only the lowest rate of the care component. It suggested that the claimant should claim again if his circumstances had changed.
7 The parties told me that the claimant did reclaim two days after the tribunal hearing. He was awarded disability living allowance under the special rules from 12 August 2002. That award supersedes the current decision from that date.
8 I gave permission to appeal against the tribunal decision on two grounds. The first related to the proper application of the special rules. The second was because it was arguable that the tribunal had not considered the care component adequately. I deal with the second of these reasons first.
The “normal claim”
9 The claimant filled in only part of his claim form. Page 1 of the claim form (DLA 1A section 2) states clearly that someone claiming under the special rules is to fill in pages 2 to 5 and then 22 of the form and no more. Page 5 repeats this. The claimant (or, rather, the palliative care sister who helped him fill in the form) followed the instructions. As a result, he gave no information about his care needs. There is no report from an examining medical practitioner. The only further evidence about care needs at that stage was that of brief replies from a general practitioner on form DBD 370X (document 45). There were, however, later representations from and for the claimant.
10 In granting permission to appeal I asked whether the tribunal was right to decide the claim for the care component at a paper hearing with such limited evidence. Given the circumstances of this case, I also directed both parties that if I found the tribunal to have erred in law I would take my own decision in place of that of the tribunal in the light of the existing evidence and invited any further submissions that both parties wished to put to me.
11 In a commendably prompt, but full, reply the secretary of state's representative supported the appeal on the ground that the tribunal had dealt inadequately with the “normal” claim. In particular, in the view of the secretary of state's representative, the tribunal failed properly to consider the evidence from the claimant and his wife about care needs. Further, the secretary of state's representative invited me, on the basis of that evidence, to award the highest rate of the care component and to do so from the date of claim. The appeal on the claim for mobility component was not supported.
12 In response, and again with commendable speed, the representative set out a fully argued submission supporting the request of the secretary of state's representative that I award the highest rate of the care component from the date of claim. This is then followed by another argument for the award of the higher rate of the mobility component from the same date.
13 In the light of those submissions, I confirm my provisional view that the tribunal did not deal with the care component adequately. It is an unusual case, but the tribunal failed to note that the claimant did not fill in the relevant part of the claim form because that is what the claim form told him to do. (Or, to be technically correct, it was the hospice care sister who filled in the form and followed the instructions). This case plainly calls for further evidence or at least for the claim pack to have been completed. Indeed, I strongly suggest that in any future similar case the officers handling the claim should seek to avoid delay by inviting a claimant to complete the rest of the form (or make a new claim) and/or by getting an examining medical practitioner report, when they are minded to refuse a special rules case but before deciding the case under the normal rules. In this case there was further evidence. It was therefore all the more important that the further evidence be considered, but I agree with the secretary of state's representative that it was not adequately considered.
The special rules
14 The rules known as the special rules apply for claims for disability living allowance and attendance allowance where a person is terminally ill and makes a claim on that ground (sections 66(1), 72(5) and 73(12) of the Social Security Contributions and Benefits Act 1992.
“Terminally ill” is defined by section 66(2)(a) as follows:
a person is “terminally ill” at any time if at that time he suffers from a progressive disease and his death in consequence of that disease can reasonably be expected within six months”
The question in this case, sadly, is when the claimant became terminally ill in this technical sense.
15 The claimant made his claim because “ I was told in November 2001 that I am terminally ill with advanced prostate cancer” and that on a worst case scenario he had 4 – 6 months to live. Perhaps not surprisingly, he did not ask for a note confirming this. He applied for disability living allowance in early December while still awaiting further tests. He had the tests a few days later. Later in January he was told that he had widespread secondaries in his bones. I add that the palliative care hospice sister who filled in the claim form endorsed the special rules basis of the claim on the form.
16 When a claimant applies for disability living allowance under the special rules, he or she is asked to send a form DS1500 to his or her general practitioner. The claimant did so. The general practitioner filled it in immediately and sent it to the disability benefits centre. Curiously, the DS1500 did not ask the general practitioner about the life expectancy of his patient. It did ask for the diagnosis, and the general practitioner noted both this and the (then) forthcoming tests. The general practitioner also added “future treatment depends on bone scan”. The disability benefits centre sent the forms to a medical adviser. The medical adviser opined that the claimant was not terminally ill because “still receiving active radiotherapy and further radiotherapy is proposed therefore not considered TI”. That, I have to add, clearly ignored the proviso of the general practitioner about the bone scan.
17 The general practitioner was then sent the DBD370X and again returned it quickly. The general practitioner commented on that form that the claimant’s prognosis was “poor – likely to survive 1 – 3 years. Again, that was before the bone scan results were known. On 15 February 2002 the general practitioner sent in a further DS1500. Again this did not ask for a prognosis, but the general practitioner did now state that the bone scan showed multiple secondaries. This was again sent to a medical adviser, and the medical adviser stated that “there is no evidence that disease has escaped hormonal control therefore life expectancy should be over 6/12”. The refusal to do more than move the award of lowest rate of the care component was then notified to the claimant. The reply from the claimant confirmed that he was receiving help from both Macmillan nurses and Marie Curie physiotherapists and that, in the claimant’s words, they were “helping so I can accept things, and yet still be able to make some choices and decisions” but “I cannot accept your decision …. I really do believe it is so very wrong.”
18 I asked both parties about this and about how it was to be decided that the claimant was or was not a special needs claimant. I did so against a background that the tribunal had failed to explain why it decided as it did, merely listing some of the documents that mentioned the question. In response, the secretary of state's representative supported the tribunal decision on the basis that the claimant did not corroborate the evidence that he was told he had only a limited time to live and that the general practitioner evidence, when asked, was of longer life expectancy and that there were two opinions given by medical services both stating that the life expectancy was over six months.
19 In reply, the representative for the claimant submitted that:
… it is clear that the test is prospective and therefore requires predicting the future. The test must be considered on the balance of probability. If death within six months is more likely than not, it seems clear that death “can reasonably be expected”. However, the legislation leaves open by whom death can reasonably be expected. In the present case, it was clearly reasonable for the claimant to expect death within the specified period. His doctor and presumably the hospicecare nurse expected his death in that period. It is submitted that, on the balance of probability the doctor would have read the notes which accompany the DS1500 form and would have understood the circumstances in which it was appropriate to complete the form. Whilst the form does not require the medical professional completing it to state the period within which death might be reasonably expected this is presumably spelt out in the notes to the form. … On the balance of probability it seems reasonable to assume that the medical professional would not have completed the form if s/he did not reasonably expect the claimant to die within six months. Why else would the system bother to create a form of this sort, if it did not expect to accept it as good evidence that the claimant met the test?”
The representative went on to argue that on the facts in this case, the claimant was within the definition at the date of claim.
20 I share several of the general and specific concerns of the representative. Why is it that the DS 1500 forms do not ask the medical practitioner the obvious question (how long is it reasonable to expect that your patient might live?), so that a decision maker had to ask a medical adviser for an opinion? I do not have copies of the notes accompanying the DS1500 in front of me, but I see what it says about it in the claim form. If as here a hospice sister specifically endorses the special needs claim and the general practitioner sends in the DS1500 that must be evidence that they think it right that the claim is under the special rules. I do not accept that the tribunal considered this question adequately, if at all, in the light of all the evidence before it.
21 I am also concerned about the basis on which the tribunal considered the evidence. The tribunal noted that the date of decision on the claim was 28.1. 2002. “This is the date beyond which today’s tribunal is not permitted to consider the claim. If [the claimant] considers that he has deteriorated since that date, then he is advised to consider the possibility of making a fresh.” My concerns are twofold. First, evidence of deterioration may be evidence of the reasonableness of the prediction at an earlier date of the terminal nature of an illness. Second, the tribunal does not appear to have taken into account all the evidence after the date of claim. Little weight is given to the evidence produced in July ahead of the tribunal hearing. But, in particular, the results of the bone scan became known after some of the evidence on which the tribunal relied, but it clearly relates to circumstances at the date of claim. The tribunal has not taken it into account. I consider that the tribunal erred on this point also.
22 I have no hesitation in awarding the claimant the highest rate of the care component from and including the date of claim, 12 December 2001. I can do that on either of two bases. I accept the secretary of state's representative submission that the evidence before the tribunal, together with subsequent evidence, shows a case for awarding both daytime and nighttime needs from that date. But I also consider the evidence makes it reasonable to conclude as at the date of decision that the circumstances were such as to bring the claimant within the special rules. Why else did the palliative care sister fill in the form DLA1 that way? Why else did the general practitioner send in the second DS1500, knowing about the bone scan, even if the first DS1500 was (if it was) premature? And I do not find either of the opinions of the Department’s medical advisers particularly helpful. They are giving advice, not evidence. Moreover, both base their advice on assumptions about evidence they do not have (in the first case the test results about the bone scan and in the second the absence of evidence – not asked for – about hormonal control) rather than actual evidence that they do have. This, more than most questions, must be one to be based on evidence from the medical practitioners who have the care of the individual concerned. It concerns me that the DS1500 does not ask for that evidence. I find that it is reasonable to conclude that on the balance of probabilities the claimant was within the special rules at the date of claim. Under section 72(5) of the Social Security Contributions and Benefits Act 1992, the claimant is to be taken as meeting both the daytime and nighttime needs for care from the date of claim if he is on that date within the special rules.
23 I hesitate more in considering if it is appropriate to award the higher rate of the mobility component or the lower rate of the mobility component as at the date of claim. Section 73(12) does not treat a terminally ill person as entitled to the mobility component, although it removes the three months waiting period for a claim. For this reason the claim form asks, and the claimant completed, questions about mobility. The answers suggested that at the date of claim the claimant was not virtually unable to walk, although he clearly had difficulties, and the evidence of the general practitioner confirmed that. There is evidence of the need for supervision because of stumbles, but the general practitioner did indicate in the form DBD370X that there is no significant risk of falls. Against that there is detailed evidence from the Marie Curie physiotherapist following an assessment in mid-January 2002 about pain and about instability due to muscle wasting in his right leg such that he tends to fall, and that the pain in his left arm stops him using a crutch or stick in that arm. These limits were such that he was unable to walk outside. There is also a detailed statement by the claimant’s wife of the position at the date of decision. She has clearly been told that her evidence is relevant only up to that date. And there is a fuller statement by the claimant of his mobility problems in the papers. Taken together, I am persuaded that the claimant did, on the balance of probabilities, meet the test for the higher rate of mobility component as at the date of claim because of the discomfort when walking. As I have accepted that this is a special needs claim I apply section 73(12) of the Social Security Contributions and Benefits Act 1992 to it.
24 I have already noted that a further claim just after the date of the tribunal decision awarded the higher rate of the mobility component and highest rate of the care component from and including 12 August 2002. I therefore formally award the allowance in full from the date of claim to the date before the second claim was allowed.
18 February 2003
[Signed on the original on the date shown]