VL-v-Department for Social Development (DLA) [2016] NICom 30

Decision No:  C23/15-16(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 12 May 2015

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 12 May 2015 is in error of law.  The error of law identified will be explained in more detail below.  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.

2.	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.  An appeal tribunal which has a Medically Qualified Panel Member is best placed to assess medical evidence and address medical issues arising in an appeal.  Further, there may be further findings of fact which require to be made and 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.

3.	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.

4.	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

5.	On 31 October 2014 a decision-maker of the Department decided not to supersede an earlier decision dated 27 June 2001.  The decision dated 27 June 2001 had awarded an entitlement to the lowest rate of the care component of DLA from and including 11 April 2001.  An appeal against the decision dated 31 October 2014 was received in the Department on 26 November 2014.

6.	The appeal tribunal hearing took place on 12 May 2015.  The appellant was present and was represented.  There was no Departmental Presenting Officer present.  The appeal tribunal disallowed the appeal and confirmed the decision dated 31 October 2014.

7.	On 10 September 2015 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.  The appellant was, at this stage, represented by Mr Hatton of the Law Centre (Northern Ireland).  On 24 September 2015 the application for leave to appeal was refused by the Legally Qualified Panel Member (LQPM).

	Proceedings before the Social Security Commissioner

8.	On 29 October 2015 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 15 December 2015 observations on the application for leave to appeal were requested from Decision Making Services (‘DMS’).  In written observations dated 8 January 2016, Mr Culbert, for DMS, supported the application on certain of the grounds submitted on behalf of the appellant by Mr Hatton.  The written observations were shared with the appellant and Mr Hatton on 8 January 2016.  On 8 February 2016 written observations in reply were received from Mr Hatton.

9.	On 5 April 2016 I granted leave to appeal.  In granting leave to appeal I gave, as a reason, that an arguable issue arose as to whether the appeal tribunal had undertaken a proper assessment of the evidence which was before it.  On the same date I determined that having considered the circumstances of the case and any reasons put forward in the request for a hearing, I was satisfied that the application can properly be determined without a hearing.

	Errors of law

10.	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.  What is an error of law?

11.	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.”

	Why was the decision of the appeal tribunal in error of law?

12.	In the application for leave to appeal, Mr Hatton made the following submissions:

	‘In paragraph 11 the tribunal states that it was their view that the level of help needed by (the appellant) did not reach the necessary level by day.  We would respectfully submit that this finding by the tribunal is not supported by any or adequate reasoning.

	The preceding paragraphs under the heading “Consideration” do not contain any factual findings or reasoning by the Tribunal to support or explain its conclusion with regard to (the appellant’s) day time care needs.  Paragraph 8 sets out the background of (the appellant’s) claim to DLA, albeit with some factual inaccuracies …  Paragraph 9 summarises (the appellant’s) representative’s submissions.  This paragraph does not appear to contain any factual findings or any assessment of the available evidence.  Paragraph 10 sets out the criteria for the lower rate of the care component and does make a finding that she would likely qualify for the lower rate of the care component on the basis of needing attention for a substantial part of the day but that this does not benefit her as she already has an award on the basis of the cooking test.

	Paragraph 11 summarises the requirements for the middle rate care component.  The tribunal then states its finding that she does not meet these criteria.  We would respectfully submit that the decision does not contain any assessment of the evidence or factual findings which explain or support the tribunal’s conclusion.  As a result, the tribunal has erred.

	…

	We would submit further that a similar error exists in regards to the tribunal’s consideration of (the appellant’s) night time needs.  The tribunal find that:

‘The appellant’s night needs were associated with going to the toilet at night.  This was something she could largely due [sic] by herself albeit we appreciate her husband may be awake and would get up at times.’

	We would submit that the tribunal has provided no evidential basis for the above finding and further that the above finding is in direct contrast to the available evidence.’

13.	As was noted above, Mr Culbert has supported the application for leave to appeal and has submitted:

‘I accept that there is merit in Mr Hatton’s grounds of appeal and submit that the tribunal has not provided sufficient reasons for its findings or demonstrated that it has fully considered all of the evidence and as such has erred in law as contended.’

14.	I agree with the submissions of both parties and agree that the decision of the appeal tribunal is in error of law.  The statement of reasons for the decision of the appeal tribunal is lengthy and time and effort has been put into its preparation.  What is missing from it, however, are the vital elements of evidential assessment and fact-finding in respect of two of its key findings.

15.	I would add that I have noted Mr Hatton’s final submission with respect to the misidentification by the appeal tribunal of the appellant’s date of birth and a consequent error in how it addressed potential entitlement to the mobility component of DLA.  Having found, for the reasons which are set out above, that the decision of the appeal tribunal is in error of law, I do not have to assess the materiality of this submitted error on the part of the appeal tribunal.

Disposal

16.	The decision of the appeal tribunal dated 12 May 2015 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.

	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 21 October 2014 in which a decision maker of the Department decided not to supersede an earlier decision dated 27 June 2001.  The decision dated 27 June 2001 had awarded an entitlement to the lowest rate of the care component of DLA from and including 11 April 2001;

	(ii)	the Department is directed to provide details of any subsequent decision-making with respect to entitlement to Disability Living Allowance and the outcome of any such decision-making to the appeal tribunal to which the appeal is being referred.  The appeal tribunal is directed to take any evidence of subsequent claims to Disability Living Allowance into account in line with the principles set out in C20/04-05(DLA);

	(iii)	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

Chief Commissioner

6 May 2016