Chapter Ten – Tribunal

Friday 10^th November

Audrey Morrison had retired from professional legal practice two years ago but opted to continue sitting as a Social Security tribunal judge, because the work interested her.  She had once imagined that when she retired, it would be from all aspects of her professional life.  That, however, was before Personal Independence Payment.

Audrey had seen many changes to the benefits system during her service as a tribunal judge but nothing that piqued her quite so much as this dreadful new benefit.  She was affronted that decades of patient legal argument on the interpretation of the Disability Living Allowance regulations - to which she had been privileged to contribute - had been swept away, only to be replaced by a dumbed-down, points-based system.  Of course, they had done the same with Invalidity Benefit and Incapacity Benefit, then Employment and Support Allowance, so it was probably inevitable that some idiot civil servant would seek to demolish DLA in similar fashion.

Not only had they done away with a perfectly serviceable benefit, they had passed responsibility for assessing claimants' medical state back to the very company judged unfit to do the same task for those on ESA.  It beggared belief.

She could have handled that with a little more equanimity had it not been for cases like one before her today.  She had been in the chair to award benefit to this particular disabled person, only for this foolish new system to snatch it away again.  She had been determined to restore it, if at all possible, with or without the agreement of Dr Larcombe.  She was very much minded to speak to the senior Judge about whether he could be nudged into retirement; he had been quite sharp in his day but nowadays, he really wasn't quite with it.

Audrey was grateful to have Mr Peach as her other wing member.  He was caring without being sentimental, courteous yet nobody's fool and. like herself, keen to plane the rough edges off of this badly hewn benefit.

'So the appeal is allowed?' Audrey said, confirming the decision with the men sitting to either side of her.

'I think so, Audrey.  At the enhanced rate for both, on that analysis,' Kevin Peach agreed.

'Stephen?'

'What?  Oh yes, allowed.  Enhanced.  Very good.'  He looked at the clock.  'Is that the last one?'

'There's one more before lunch.  Mr Martin, represented by Ms Richardson from Into Action.'

'Ah.  The Girl with the Dragon Tattoo!' said Larcombe.

'Has she?' asked Audrey.  'I can't say I've ever noticed.'

'I think Stephen is referring to how she dresses, Audrey.'

'She is a punky little soul, isn't she?' Mrs Morrison agreed.

'More Goth than punk, I think,' Kevin replied.  'Still, the looks belie the woman; she's turned up something interesting with that Upper Tribunal ruling and this evidence that they have changed the guidance to reflect it.'

'Let's not get ahead of ourselves, Kevin.  We’ll discuss Mr Martin’s appeal shortly.  We need to give Mr Donaldson the good news first.  Could you call him back in, please, Angela?'

James Donaldson's face was a picture of relief.

'Can I apply to get my car back now?' he asked.

'Strictly speaking, the Department for Work and Pensions have a calendar month to challenge our decision,' Audrey explained. 

'Oh.'  His face fell.  'I thought this was it and that I'd won.'

'It probably is.  If for some bizarre reason it proves not to be, do get some professional advice and fight on.  There are several very creditable voluntary agencies who can help.'

He rose from his seat, steadying himself with his stick.

'Didn't I see you a few years ago, Mrs Morrison?  When I had to appeal my DLA?''

'I believe you did.'  She smiled.  'Are you still shooting competitively?'

'Only at county level these days.  My days as a Paralympic hopeful are behind me, I'm afraid.’  He laughed.  ‘Fancy you remembering that!'

'My son is a bowman.  He rather took to it when they suggested it as part of his rehabilitation at Headley Court.'

After another thank you, Mr Donaldson limbed out.

'Which is his artificial leg again?' asked the doctor.

'Both of them, Stephen.'  Audrey made a mental note to speak to Mr Ellis about him at the earliest juncture.  ‘So, if we move on to Mr Martin’s case.  This young man has epileptic seizures.  They are, if I understand the evidence from his specialist correctly, quite infrequent, controlled but not prevented by his medication, very severe when they happen and often onset without warning.  Am I reading this correctly, Stephen?’

‘Where…?’

‘Page fourteen of the papers.’

Her colleague shuffled the large bundle until he found the report in question.  He pushed his glasses to the end of his nose before reporting his findings.  ‘Yes Audrey, that’s certainly the gist of it.’

‘Good.’  She moved them on to the report from the face-to-face medical.  ‘Nurse Freeman, who carried out the assessment, appears to agree.  She records Mr Martin’s evidence about this as there having been four grand mal fits this year, during which he sustained some minor injuries, partly due to luck, partly to the timely intervention of others to keep him from greater harm.  He reported very occasional, fleeting absences.  On that basis, she indicated one point should be scored for supervision to monitor his health condition, but awarded no others, on the basis that the probability of Mr Martin fitting when carrying out any of the activities was vanishingly small.’

‘That’s perfectly reas…’ began Dr Larcombe.

‘Appalling!’ cried Mr Peach.

‘It seems the Decision Maker leaned towards your opinion, Kevin.  She added four points for a requirement for supervision when preparing a meal, on the basis that with hot surfaces, flames and sharp objects about, there was a significantly increased risk of harm, and two applying similar logic to bathing.’

‘Giving a grand total of seven,’ remarked Stephen Larcombe.  ‘Jolly bad luck!’

‘Indeed; especially for someone used to the highest rate of DLA,’ said Kevin Peach.  ‘I imagine this will have had a detrimental effect on his other entitlements too.’

‘Well, they always said bringing in PIP was to sort the wheat from the chaff!’

‘I do not think this young man would thank us for dismissing him as “chaff”, Stephen,’ Audrey interjected.  ‘His disability is quite as real as Mr Donaldson’s and, in some respects, more difficult to adapt to.  However, the question for us is this - has the Decision Maker applied the law correctly?  Ms Richardson contends that she has not and, by way of assistance, has furnished us with an extract from the revised Guidance for Decision-Makers on this point.  Her contention is that while Mr Martin may be less likely to suffer harm carrying out other daily living activities, because the consequences could still be severe, points are still to be scored.  She suggests two more for supervision taking nutrition, dressing and undressing and using the toilet.’

‘Giving a very convenient thirteen,’ Dr Larcombe noted.  ‘An enhanced award, of identical value to the DLA he has lost.’

‘His situation hasn’t changed,’ Kevin Peach pointed out.  ‘Why should his income?’

‘I have every sympathy with that argument, but we cannot follow it in law,’ Audrey reminded him.  ‘We must address the activities and descriptors and we must consider whether those activities can be completed reliably.  The matter of safety is central to that.  I have a great deal of sympathy for Ms Richardson’s argument on taking nutrition that, were Mr Martin to fit whilst holding a hot drink he might scald himself and could choke if eating a meal.  If we conceded those two points, he would be in line for a standard award for daily living.’

‘I agree,’ Kevin Peach said.  ‘I’m inclined to agree with her about dressing as well.  Although it’s a remote risk, the possibility of suffocation or strangulation through being caught with a jumper over your head can’t be discounted.’

‘I’m not sure we can stretch the point that far,’ said Larcombe.  ‘That’s so unlikely…’

‘Unlikely it may be but, were it to happen, it would present a severe risk,’ said Audrey.

Kevin Peach had been reading the adviser’s submission.  ‘Help me out on this, Audrey.  Am I right in thinking, from the case law, that what we need to establish with such a severe risk is whether it is an issue, when Mr Martin is dressing and undressing, which can largely be avoided if he is supervised?  In other words, is he usually going to be wearing something he could become entangled in and, if so, will having someone else watching over him ensure he is safe?’

‘Just so, Kevin.’

‘Then, unless he spends an unusually large proportion of the time bare-chested, I think that has to be a yes.’

‘Perhaps so.’  Audrey laughed.  She had been wary of scoring Kieran Martin anything for this activity but now found herself leaning towards Mr Peach’s analysis.  ‘But where does this leave us, dare I ask, with his toilet needs?  Ms Richardson mentions loss of control when he does fit, arguing that supervision is always required, in case a need for assistance to clean and change himself arises.  I fear the Department might not accept that is the correct approach to the law; it’s a situation which would be unpleasant for Mr Martin and highly embarrassing, but not dangerous in itself, and the aid then required is for bathing and dressing.’

‘No points for that, then!’

‘I’m not so sure, Stephen,’ Kevin countered.  ‘A bathroom would be a particularly hazardous place to start fitting.  It’s a very confined space and it has a disproportionate number of hard, ceramic surfaces, tiled floors and so forth.  While I take your point, Audrey, regarding the case made in the submission, there seems to be an alternative route to the same conclusion.’

‘Just so.’  Audrey added to her notes.  ‘And are we all agreed on mobility descriptor 1f?’

‘Certainly,’ said Kevin Peach.

‘Stephen?’

‘I suppose that’s fair enough.’

‘Should we hear any further evidence from Mr Martin?’

Kevin Peach shook his head.  Audrey was unsurprised when Stephen glanced at the clock.

‘So that would be an enhanced award for both daily living and mobility.  Shall we make that proposal to our appellant?’

Her wing members agreed.

'Perhaps you could ask Mr Martin and Ms Richardson to step in, Angela?'

The Tribunal Clerk left the room, returning shortly with a twitchy young man and a pale-faced young woman, dressed from head to toe in black.

'Good morning, Mr Martin,' Audrey began pleasantly.  'Please take a seat - the one in the centre is probably best.  And if Ms Richardson has the one on your right...'

She introduced her colleagues, noticing a furrowing of the girl’s pale brow as she named Dr Larcombe.  Audrey thanked her for her submission.

‘Unusually, this case doesn’t appear to rest on a dispute about the facts,’ Audrey explained.  ‘Rather, it is a disagreement about how we should interpret the law.  It appears to me that the Department for Work and Pensions have revised their own opinion in the months which have elapsed since the decision on Mr Martin’s case.  I am very grateful to you, Ms Richardson, for sharing the new Guidance for Decision Makers.  With this in mind, we are minded to allow the appeal, substituting a decision that Mr Martin should receive Personal Independence Payment at the enhanced rate for daily living and the enhanced rate for mobility.’

Mrs Morrison saw Mr Martin turn to his representative.

‘Do I have to say anything now?’

Ashley Richardson looked warily at Mrs Morrison.  ‘I suppose “thank you” would do,’ she said.  ‘They’re offering you the maximum amount.’

‘Wow!’

‘I take it that you don’t need to address us further, Ms Richardson?’  Mrs Morrison smiled, so the young woman, who still appeared poised to open her attack, knew she was making a little joke.

‘Er, no.  That’s fine.  Brilliant, in fact.’

‘Thank you both.  Angela will bring your decision notices out shortly.’

The two young people left the room.

‘Well, that’s our good deed for the day done!’ said Stephen Larcombe.

‘A good deed that should never have been needed,’ Audrey complained.  ‘We’re simply applying to this benefit a principle long established in DLA.’

‘Mr Martin looked flabbergasted,’ said Kevin.  ‘Delighted, but flabbergasted.  Young Ms Richardson too.’

‘Really?’  Audrey wasn’t so sure.  ‘I’m sure she was more than happy with the award.  However, I rather suspect she had been looking forward to a little sparring to get it.  Perhaps it’s a shame we didn’t have anyone from the DWP here today.’

‘I’m glad we didn’t,’ said Dr Larcombe.  ‘It’s already midday!  What time are we starting this afternoon?’

‘There’s rather a lot of the bundle for Mr Davies’ case,’ Audrey explained.  ‘And we have Mr Connolly as representative.  I suggest we take an hour, so as to have ample time to discuss the papers before seeing the appellant.’

 She thought Stephen looked disappointed.  He had probably been hoping he would have time for a three course lunch.