HW-v-Department for Communities (DLA) [2017] NICom 37

Decision No:  C45/17-18(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 1 August 2016

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	As will be explained in greater detail below, both parties have expressed the view that the decision appealed against was erroneous in point of law.

2.	Accordingly, pursuant to the powers conferred on me by Article 15(7) of the Social Security (Northern Ireland) Order 1998, I allow the appeal, I set aside the decision appealed against and I refer the case to a differently constituted tribunal for determination.

3.	It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of his entitlement to Disability Living Allowance (DLA), for a particular period, remains to be determined by another appeal tribunal. 

4.	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(i)	the decision under appeal is a decision of the Department, dated 5 October 2015, which superseded an earlier decision of the Department dated 6 June 2002 and decided that the appellant was not entitled to DLA from and including 5 October 2015;

(ii)	the Department is directed to provide details of any subsequent claims to DLA and the outcome of any such claims to the appeal tribunal to which the appeal is being referred.  The appeal tribunal is directed to take any evidence of subsequent claims to DLA 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. 

	Background

5.	On 5 October 2015 a decision maker of the Department superseded an earlier decision of the Department dated 6 June 2002 and decided that the appellant was not entitled to DLA from and including 5 October 2015. A request for a reconsideration of the decision dated 5 October 2015 was made by the appellant on 9 October 2015. The decision dated 5 October 2015 was reconsidered on 14 October 2015 but was not changed. 

6.	Further correspondence was received from the appellant on 28 October 2015 which was treated by the Department as an appeal against the decision dated 5 October 2015.
 
7.	On 3 March 2016 an appeal listing form was received in the Appeal Services (TAS).  On this form the appellant had ticked a box to indicate that he was unable to attend the oral hearing of the appeal and requesting that another appeal hearing date be arranged.  On 4 March 2016, as an interlocutory matter, the Legally Qualified Panel Member (LQPM) refused the application for a postponement. 

8.	The appeal was listed for hearing on 14 March 2016 but was adjourned as the appellant was known to one of the members of the appeal tribunal and a conflict of interest arose.

9.	Correspondence dated 7 April 2016 was received in TAS in which the appellant’s representative, Mr McCloskey of the Citizens Advice organisation made an application for a postponement of a further listed appeal tribunal hearing.  On 11 April 2016 the application for a postponement was granted by the LQPM. 

10.	The substantive appeal tribunal hearing took place on 1 August 2016. The appellant was present and was represented by Mr McCloskey.  There was a Departmental Presenting Officer present.  The appeal tribunal disallowed the appeal and confirmed the decision dated 5 October 2015.

11.	On 3 November 2016 an application for leave to appeal to the Social Security Commissioners was received in the TAS.  The appellant was represented in the application by Mr McCloskey.  On 15 November 2016 the application for leave to appeal was refused by the LQPM. 

Proceedings before the Social Security Commissioner

12.	On 9 January 2017 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  The appellant was represented in the further application by Ms Banks of the Citizens Advice organisation.  On 18 January 2017 observations on the application for leave to appeal were requested from Decision Making Services (DMS). In written observations dated 9 February 2017, Mr Hinton, for DMS, supported the application for leave to appeal on one of the grounds submitted on behalf of the appellant and identified a further potential error of law.  Written observations were shared with the appellant and Ms Banks on 9 February 2017.  On 8 March 2017 e-mail correspondence was received from Ms Banks in which she indicated that she had no further comment to make.

13.	On 7 June 2017 I granted leave to appeal. In granting leave to appeal, I gave, as a reason that an arguable issue had arisen as to whether the appeal tribunal had addressed an issue arising in the appeal.  On the same date I determined that an oral hearing of the appeal would not be required.

	Errors of law

14.	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?

15.	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.” 

	Analysis

16.	In the application for leave to appeal, which was received in the Office of the Social Security Commissioners, Ms Banks made a number of submissions on behalf of the appellant, including that the appeal tribunal had failed to explore evidence in connection with the appellant’s mental health problems and his alcohol dependency.  Ms Banks asserted that there was such evidence before the appeal tribunal, as recorded in the record of proceedings for the appeal tribunal hearing, and that the appeal tribunal was under a duty to explore that evidence in greater depth.  In addition, Ms Banks submitted certain of the appeal tribunal’s conclusions were clearly at variance with the recorded evidence.   

17.	In his written observations on the application for leave to appeal, Mr Hinton has made the following submissions on this ground:

‘Issue 4

The tribunal failed to explore evidence of (the appellant’s) mental health problems along with his alcohol dependency. Evidence was presented in the Record of Proceedings that clearly pointed to (the appellant) experiencing these problems.  Furthermore, the Record of Proceedings was wrong to state that there was no recent mental health input in the GP records. As recently as May 2016 (the appellant) had been taking a high dose of anti depressants and the proceedings noted that this had in fact been increased further to the highest dosage.

In the record of proceedings the following was recorded with regards to (the appellant’s) mental health:

“2010, partner died in bed in 2009, feeling down

20 May 2016 mood declined since mother died last month

...No mental health input recently in the General Practitioner records

The Appellant indicated that he took the medication following the discharge from the army

His medication Mirtrazepine has been increased from 30mgs per day to 45mgs per day.  He attends his General Practitioner regularly.

...He has been counselled in the past and has seen a psychiatrist some years ago.

He normally drinks 5-6 cans each evening and his son brings them to him...”

I would contend that some statements quoted above seem to be contradictory and should have merited further investigation by the tribunal with regards to the state of (the appellant’s) mental health.  First of all the proceedings stated that the GP records contained no recent mental health input but a couple of lines later it was confirmed that (the appellant’s) medication had been increased to 45mgs.  I accessed the intranet to obtain more information on the aforementioned drug and it stated that it was used for depressive disorders.  It would appear to me that if a patient’s dosage of an anti- depressant drug was increased from 30 to 45mgs, this could only occur after detailed consultation with a GP and it would naturally follow that the GP would not increase the dosage unless a significant downturn in the patient’s mental health occurred.

On perusing the above information contained in the record of proceedings it is possible that (the appellant’s) medication was only increased from 20 May 2016 following the passing of his mother. If that was the case then this would have occurred after the date of the decision under appeal (5 October 2015); therefore this information could not be taken into account.  However, it would be a step too far at this stage to have confidence in this analysis with any degree of certainty.  Therefore, I would contend the onus was on the tribunal to resolve the conflict contained within these statements.  However, it appears to me from perusing the statement of reasons it did not.

I would also contend that whilst the tribunal referred to the GP notes and the report of the HCP to conclude that (the appellant) had no major health issues, it has failed to comment on the extent of his alcohol dependency.  This has been referred to as one of his main disabling conditions in the report of the HCP (tabbed document 21) and in his account of a typical day on page 7 of the report (the appellant) stated:

“Still drinking alcohol (to excess at times) on a daily basis”.

On page 16 of the report the HCP also stated that alcohol would leave (the appellant) open to an increased risk of falls.  In the record of proceedings it was recorded that in August 2015 (the appellant) was drinking 4 to 6 cans of beer in the afternoon and at a later point he stated it was normal for him to drink 5 to 6 cans each evening.  

In the statement of reasons the tribunal, referred to (the appellant’s) assertion that he suffered from alcohol dependency; however it does not seem to have explored further how this impacted on his mental health.  It may be that the tribunal considered that (the appellant’s) alcohol intake did not impact significantly on his mental well-being or functional ability.  However, as alcohol dependency was listed as one of (the appellant’s) main disabling conditions, then I would contend the tribunal had an onus to explore and analyse this condition in more detail.  I would contend the onus was on the tribunal to explore with (the appellant) if he was on an alcohol treatment programme, or at the very least to comment on whether his alcohol intake affected his mental health to any significant degree.

Consequently, I would contend the tribunal’s failure to resolve contradictory statements regarding (the appellant’s) mental health and the increased dosage surrounding his medication along with its failure to explore his alcohol dependency in greater detail renders its decision erroneous in law.’

18.	I would concur with Mr Hinton that the evidence as to when the anti-depressant medication was increased is no more than conjectural and that it is inappropriate to place any degree of reliance on it.  With respect to him, however, it is not necessarily the case, however, that evidence which post-dates the decision under appeal may not be considered by an appeal tribunal.  It is true that Article 13(8)(b) of the Social Security (Northern Ireland) Order 1998 provides – 

‘(8) In deciding an appeal under this Article, an appeal tribunal – 

(a)……….

(b) shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.’

19.	In C24/03-04(DLA), at paragraph 8, the Commissioner approved of the following statement of law set out in paragraph 9 of R(DLA)2/01: 

‘… In the case of a claim for a Disability Living Allowance, the jurisdiction {of an Appeal Tribunal} is limited to the inclusive period from the date of claim to the date of the decision under appeal.  The only evidence that is relevant is evidence that relates to the period over which the tribunal has jurisdiction.  However it is the time to which the evidence relates that is significant, not the date when the evidence was written or given.  It does not limit the tribunal to the evidence that was before the officer who made the decision.  It does not limit the tribunal to evidence that was in existence at that date.  If evidence is written or given after the date of the decision under appeal, the tribunal must determine the time to which it relates.  If it relates to the relevant period, it is admissible.  If it relates to a later time it is not admissible.’

20.	It is clear, however, that both parties have expressed the view that the decision appealed against was erroneous in point of law on the basis of more substantive grounds.

21.	Accordingly, pursuant to the powers conferred on me by Article 15(7) of the Social Security (Northern Ireland) Order 1998, I allow the appeal, I set aside the decision appealed against and I refer the case to a differently constituted tribunal for determination.

(signed) K Mullan

Chief Commissioner

15 August 2017