Cooke v Secretary of State for Social Security

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeLADY JUSTICE HALE,MR. JUSTICE BUTTERFIELD,LORD JUSTICE CLARKE
Judgment Date25 Apr 2001
Neutral Citation[2001] EWCA Civ 734
Docket NumberA1/00/3249

[2001] EWCA Civ 734

IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE SOCIAL SECURITY

AND CHILD SUPPORT COMMISSIONERS

Royal Courts of Justice

Strand London WC2

Before:

Lord Justice Clarke

Lady Justice Hale

Mr. Justice Butterfield

A1/00/3249

Alwyn Cooke
Appellant
and
Secretary Of State For Social Security

MR. R. THACKER (instructed by Messrs Stephensons, Leigh) appeared on behalf of the Appellant.

MR. D. FORSDICK (instructed by the Solicitor to the Department of Social Security) appeared on behalf of the Respondent.

LADY JUSTICE HALE
1

1. This is a claimant's appeal against the decision of Deputy Social Security Commissioner Hereward dated 26th May 2000. She dismissed the claimant's appeal from the decision of the Wigan Disability Appeal Tribunal made on 12th April 1999. Permission to appeal to this court was refused by Social Security Commissioner Rowland on 31st August 2000. On 4th December 2000 I adjourned the application for an oral hearing with both parties to attend, and the appeal to follow if permission was granted. Among my reasons for doing so was that the question arises as to whether an application such as this, from a second and highly expert judicial tier of appeal, should be regarded as akin to a second tier appeal from the High Court or a county court and thus, although not technically within section 55(1) of the Access to Justice Act 1999, subject to a similar threshold test. We have today granted permission to appeal, in part to enable us to express a view on that question.

2

2. The history of the case is this. The claimant suffers from low back pain. She had a laminectomy twice in 1986. She also suffers from arthritis and fibromyalgia. She had a total right knee replacement in 1992 and she suffers from depression and a skin condition. She first claimed disability living allowance in February 1993. This was disallowed. On appeal, however, the higher rate mobility component was awarded until February 1995. This was later renewed until 9th February 1997. The highest rate care component was awarded on review until that same date. On 22nd August 1996 she applied for the renewal of both awards. She filled in a claim pack and a report was later obtained from her general practitioner. No other assessment was made at that time. On 9th October 1996 both awards were extended for life with effect from 9th February 1997. 3. However, she was visited by a visiting officer on 23rd April 1998. The visiting officer filled in the questionnaire on her behalf. The officer found a discrepancy between what had previously been on record and what was observed during the visit. As a result the claimant was examined by Dr. Spielmann. His report is dated 1st July 1998. This records her own account of her relevant symptoms, his own clinical findings and his opinion. His main conclusion was that “the clinical findings do not support the extent of the disability claimed.” He did, however, state that there had been no change in the circumstances over the last 12 months, that is since 1st July 1997. 4. Hence the Secretary of State made an application to an adjudication officer for a review or correction of the earlier decision. This application was based on a relevant change of circumstances within the meaning of section 30(2)(b) of the Social Security Administration Act 1992 because of “a reduction in mobility and care needs as shown in recent medical evidence”. The adjudication officer's decision on 24th July 1998 was that there had been a relevant change of circumstances since the last decision. Her mobility and care needs had been reduced. Initially disability living allowance was withdrawn altogether as from 1st July 1998, but the claimant applied for a review within three months as provided for under section 30(1) of the 1992 Act and the adjudication officer decided that she was entitled to care component at the lowest rate, but not to any mobility component.

3

5. She appealed to the Disability Appeal Tribunal. She produced evidence from her general practitioner and from her consultant rheumatologist, Dr. Jones. The tribunal upheld the adjudication officer's decision. On the mobility component they found that:

“There are conflicts in Ms Cooke's own evidence over the years. For example in a renewal claim submitted in August 1996 Ms Cooke stated that she gets severe discomfort as soon as she starts walking. In contrast in the Disability Living Allowance questionnaire completed by her on 23rd April 1998 she states that she cannot walk far, she is in pain all the time and could walk perhaps 50-60 yards in 10 minutes before the onset of severe discomfort.”

4

They conclude that:

“Because of the inconsistencies in the distances stated by Ms Cooke between 1996 and 1999 the tribunal is satisfied, on the balance of probabilities, that she can walk at least 50 yards before the onset of severe discomfort brought on by pain in her back and left knee. We reached this conclusion because it is based on the evidence of the Examining Medical Practitioner [Dr Spielmann] and Dr. Jones.Their findings in this respect are in the opinion of the tribunal entirely consistent. Furthermore, taking account of Dr. Spielmann's findings, we consider, on the balance of probabilities, that at the date of the Adjudication Officer's review decision she should have been able to walk a further 50 yards before having to halt again because of the onset of severe discomfort.”

5

That being so they concluded that she did not then qualify for the higher rate of mobility component. They went on to consider whether she qualified for the lower rate and found that she did not.

6

6. As far as the care component was concerned, they stated:

“We believe that Ms Cooke both in the questionnaire and in her evidence to the tribunal, was overstating her care needs. We do not doubt for one moment that she suffers pain because of her condition and noted that Dr Jones states that she is at the severe end of the pain spectrum. Nonetheless, taking account of Dr Speilmann's clinical findings, which the tribunal accept, we do not consider that her grip with either hand is as impaired as is suggested by Ms Cooke. Nor, for the same reason, do we consider that Ms Cooke is having the amount of difficulty getting up and downstairs most of the time as she maintains and as is stated by Dr Jones in his letter.”

7

They earlier found that because of her physical disabilities as at 15th September 1998:

“Miss Cooke reasonably required assistance from another person in connection with her bodily functions of bathing (getting into and out of the bath once per day) and washing parts of her body difficult to reach (once or twice a day). She also reasonably required assistance with dressing (one/two times a day because of problems with buttons).”

8

They did not, however, find that she needed assistance with her toilet needs:

“In the 1996 renewal claim pack Ms Cooke stated that she needed help getting to and using the toilet 2 or 3 times per night taking 10-15 minutes each time. On the basis of that statement she was found to have night care needs at the time of renewal of her care award of 1996. In contrast in the 1998 Disability Living Allowance questionnaire Ms Cooke made no reference to needing assistance in using the toilet but stated that she needed assistance getting to the toilet on one or two occasions per night, taking about 10 minutes each time. In view of this difference between the 1996 claimed night needs and the 1998 claimed night needs we prefer, on the balance of probabilities, to accept the findings of Dr Spielmann to the effect that Ms Cooke does not require assistance getting out of the bed by day or by night and getting to the toilet at night. In these circumstances and in the absence of any other stated night care needs we are satisfied that Ms Cooke does not require from another person prolonged or repeated attention in connection with her bodily functions at night.”

9

Therefore she did not qualify for the higher rate care component.

10

7. Their conclusion was this:

“In our opinion there was sufficient evidence (including in particular the Examining Medical Practitioner's report) before the adjudication officer on 24 7 1998 to suggest that there had been a relevant change of circumstances since the decision dated 9 10 1996. The relevant change of circumstances was that as at 24 July 1998 the evidence available to the adjudication officer suggested that Ms Cooke's mobility needs were not sufficient to justify an award of the higher rate mobility component and that her care needs...

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