HW-v-Department for Social Development (DLA) [2010] NICom 74

Decision No:  C21/09-10(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 4 February 2009

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	Having considered the circumstances of the case, I am satisfied that the application can properly be determined without a hearing.

2.	The decision of the appeal tribunal dated 4 February 2009 is in error of law.  The error of law identified will be explained in more detail below.

3.	Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

4.	For further reasons set out below, I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given.  This is because there is detailed evidence relevant to the issues arising in the appeal, including medical evidence, to which I have not had access, and there may be further findings of fact which require to be made.  Further I do not consider it expedient to make such findings, at this stage of the proceedings.  Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.

5.	In referring the case to a differently constituted appeal tribunal for re-determination, I direct that the appeal tribunal takes into account the guidance set out below.

6.	It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of her entitlement to disability living allowance (DLA) remains to be determined by another appeal tribunal.  In accordance with the guidance set out below, the newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal.

Background

7.	On 24 January 2008, a decision-maker of the Department issued a decision which superseded an earlier decision of the Department, dated 27 April 2005.  The decision dated 27 April 2005 had maintained an existing entitlement to the higher rate of the mobility component of DLA, on an indefinite basis, and awarded an entitlement to the middle rate of the care component of DLA for the fixed period from 26 February 2005 to 25 February 2008.  The supersession decision of 24 January 2008 had the effect of removing entitlement to the middle rate of the care component of DLA while maintaining the entitlement to the higher rate of the mobility component of DLA from and including 14 January 2008.

8.	On 20 March 2008, and following a request to that effect, the decision dated 24 January 2008 was reconsidered but was not changed.  An appeal against the decision dated 24 January 2008 was received in the Department on 29 April 2008.

9.	The appeal tribunal hearing took place on 4 February 2009.  It would appear from the record of proceedings (ROPs) for the appeal tribunal hearing that the applicant was not present but her sister was.

10.	The appeal tribunal ‘allowed’ the appeal, but did not confirm the decision dated 24 January 2008.  Instead it decided that the Department should not have made a supersession decision but should have made a decision on a renewal claim which it had not.  It therefore maintained that the decision of 27 April 2005 remained in force.

11.	On 18 May 2009 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.  On 27 May 2009 the application for leave to appeal was granted by the legally qualified panel member, but without identifying any point of law arising.

Proceedings before the Social Security Commissioner

12.	On 20 July 2009 the appeal to the Social Security Commissioner was received in Office of the Social Security Commissioners and Child Support Commissioners.  On 5 February 2010 observations were sought from Decision Making Services (DMS) and these were received on 20 February 2010.  DMS supported the application.  Observations were shared with the appellant on 9 March 2010.

Errors of law

13.	A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.

14.	In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals.  As set out at paragraph 30 of R(I) 2/06 these are:

“(i)	making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);

(ii)	failing to give reasons or any adequate reasons for findings on material matters;

(iii)	failing to take into account and/or resolve conflicts of fact or opinion on material matters;

(iv)	giving weight to immaterial matters;

(v)	making a material misdirection of law on any material matter;

(vi)	committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …

Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’).  Errors of law of which it can be said that they would have made no difference to the outcome do not matter.”

The error of law in the instant case

15.	The error of law in the instant case can only be understood by examining the decision-making process giving rise to the appeal.

16.	The appellant has been in receipt of DLA for a considerable length of time going back to June 1998.  The Department has undertaken a number of decisions in connection with the appellant’s entitlement to DLA during that period.

17.	On 27 April 2005 a decision had been issued which had maintained an existing entitlement to the higher rate of the mobility component of DLA, on an indefinite basis, and awarded an entitlement to the middle rate of the care component of DLA for the fixed period from 26 February 2005 to 25 February 2008.

18.	On 13 November 2007 a renewal claim form to DLA was received in the Department.  Although it is nowhere made clear, the renewal application was probably submitted by the appellant because the fixed period award of entitlement to the middle rate of the care component of DLA was due to terminate on 25 February 2008.

19.	The decision-maker of the Department treated the receipt of the renewal claim form as an application for a supersession of the decision dated 27 April 2005, and on 24 January 2008 superseded the decision dated 27 April 2005 to the effect of removing entitlement to the middle rate of the care component of DLA while maintaining the entitlement to the higher rate of the mobility component of DLA from and including 14 January 2008.

20.	How did the appeal tribunal deal with the appeal against the decision dated 24 January 2008?

21.	In the ROPs for the appeal tribunal hearing, the following is recorded:

‘Introductions.

Explained approach to renewal claim, that decision should be taken on it, not on supersession.  Explained that would be further decision which would carry a right of appeal.’

22.	The appeal tribunal issued two decision notices, in the following form:

‘Allow.  The middle rate care component is payable from & including 26/2/05 – 25/2/08.  No valid decision had been taken on the renewal claim.

Allow.  High rate mobility component is payable from & including 10/6/98.’

23.	It is clear that in the second decision notice the date 10 June 1998 should read 10 June 2000.

24.	The statement of reasons for the appeal tribunal’s decision is as follows:

‘The appeal was against a supersession on decision made on 24/1/2008, superseding a decision made on 27/4/2005 awarding Middle Rate Care Component from 26/2/2005-25/2/2008 and an open ended award of the High Rate Mobility Component.  The decision on 24/1/2008 removed entitlement to the Care Component and awarded the High Rate Mobility Component, again an open ended award.

The appeal was allowed because the Department was wrong to make a supersession decision on 24/1/2008 when a renewal claim had been made on 13/11/2007 (Tab 19).  The correct approach was to make a decision on the renewal claim, not to make a supersession decision (Tab 21).  No valid decision had been made on the claim of 13/11/2007, therefore the decision of 27/4/2006 remained and the appeal was allowed.

The tribunal decided that this was an error by the Department that it should not correct.  There was a difference of substance between a renewal claim and a supersession.  It was wrong for the Department to use information on a new claim, directed at a future period to supersede a decision, particularly when that decision was so close to its time limit.  The correct course was to take a decision on the renewal claim, which would carry its own rights of appeal.’

25.	It is clear that the date of 27 April 2006 in the last sentence of the second paragraph should read 27 April 2005.

26.	It is clear, therefore, that the appeal tribunal decided that the decision-maker of the Department did not have the power to make a supersession decision on receipt of the renewal claim form to DLA.

27.	A Tribunal of Commissioners in Great Britain, in R(IB) 2/04, undertook an extensive analysis of the legislative provisions relating to decision-making and appeals.  In Great Britain these provisions are the Social Security Act 1998 and the Social Security and Child Support (Decisions and Appeals) Regulations 1999, both as amended.  In Northern Ireland these provisions are the Social Security (Northern Ireland) Order 1998 and the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, both as amended.  To all intents and purposes, the legislative provisions with respect to decision making and appeals in Great Britain and Northern Ireland are identical.

28.	At paragraph 146 of the decision, the Tribunal stated:

‘We agree with the parties that, since an award of disability living allowance is an award of one benefit, albeit consisting of two components, a purported application for renewal of a component which has been awarded for a fixed period must, where the other component has been awarded for an indefinite period, be treated as an application for supersession of the award as a whole (i.e. in respect of both components).  Regulation 13C(1) of the Social Security (Claims and Payments) Regulations 1987, which provides that “a person entitled to an award of disability living allowance may make a further claim for disability living allowance during the period of six months immediately before the existing award expires”, cannot in our judgment apply to this situation, because the existing “award” will not expire when the entitlement to the component which has been awarded for a fixed period ceases.  That is in our view the case even where the two components were first awarded by separate decisions.  The renewal claim pack submitted by the claimant ….. was therefore necessarily an application for supersession.’

29.	In the instant case, when the renewal claim form to DLA was received in the Department, on 13 November 2007, the appellant had an existing entitlement to the higher rate of the mobility component of DLA, on an indefinite basis, and the middle rate of the care component of DLA for the fixed period from 26 February 2005 to 25 February 2008.  According to the principles in paragraph 146 of R(IB) 2/04, the decision-maker of the Department was correct to treat the purported application for a renewal of the fixed period component as an application for a supersession of the award as a whole.  Accordingly, the decision of the appeal tribunal that the decision-maker was incorrect so to do is erroneous.

Disposal

30.	The decision of the appeal tribunal dated 4 February 2009 is in error of law.  Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

31.	I direct that the parties to the proceedings and the newly constituted appeal tribunal take into account the following:

(i)	the decision under appeal is a decision of the Department, dated 24 January 2008 which superseded the decision dated 27 April 2005 to the effect of removing entitlement to the middle rate of the care component of DLA while maintaining the entitlement to the higher rate of the mobility component of DLA from and including 14 January 2008;

(ii)	the appellant will wish to consider what was said at paragraph 77 of C15/08-09(DLA) concerning the powers available to the appeal tribunal and the appellant’s options in relation to those powers;

(ii)	it will be for both parties to the proceedings to make submissions, and adduce evidence in support of those submissions, on all of the issues relevant to the appeal; and

(iv)	it will be for the appeal tribunal to consider the submissions made by the parties to the proceedings on these issues, and any evidence adduced in support of them, and then to make its determination, in light of all that is before it.

(signed):  K Mullan

Commissioner

16 August 2010