Northern Ireland - Social Security and Child Support Commissioners' Decisions

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Cite as: [2003] NISSCSC C26/3-4(DLA), [2003] NISSCSC C26/03-04(DLA)

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[2003] NISSCSC C26/03-04(DLA) (5 April 2004)

Decision No: C26/03-04(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 29 May 2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER

This is an appeal by the claimant, with the leave of the Legally Qualified Member of the Tribunal, against the unanimous decision of the Tribunal, affirming the decision maker's decision, to the effect that the claimant is entitled to an award of the lower rate of the care component of disability living allowance (DLA) from and including 13 February 2002 and the majority decision of the Tribunal, affirming the decision maker's decision, confirming that the claimant is not entitled to the mobility component of DLA at any rate from and including 13 February 2002.

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

The claimant has a claim history in relation to DLA from 1992. It is relevant to the present case that on 11 November 1997, on review, the middle rate of the care component of DLA was awarded for day attention from and including 1 June 1997. A pre-existing award of the lower rate of the mobility component of DLA from and including 1 May 1995 was not amended. On 13 February 2002 the decision of 11 November 1997 was superseded and it was decided to award the claimant the lowest rate of the care component for the main meal test from and including 13 February 2002. At the request of the claimant this decision was reconsidered and, accordingly, on 26 May 2002 it was decided that the decision of 13 February 2002 should not be changed. Thereupon the claimant appealed.

On appeal, as stated in paragraph 1 herein, the Tribunal came to a unanimous decision that the claimant was entitled to the care component at the lowest rate from and including 13 February 2002. The Legally Qualified Member gave the following reasons for this decision on behalf of herself and the other two members of the Tribunal: -

"We believe based on the Examining Medical Practitioner's report that the care award in respect of the cooking test to be just due to her arm problem. We are not convinced that her bathing needs are twice a day. We found her evidence to be vague and contradictory.

We are not convinced, based on the Examining Medical Practitioner's report that [the claimant] requires frequent attention with bodily functions throughout the day. Help bathing and dressing is not attention given frequently throughout the day.

No night time needs were indicated.

Relying on both General Practitioner's report and Examining Medical Practitioner's report and General Practitioner's records we see no dangerous tendencies or behaviour which would require supervision by day in order to avoid substantial danger to [the claimant] or others."

The Tribunal in a majority decision, the Legally Qualified Member being in the minority, disallowed the appeal and held that the claimant was not entitled to the mobility component of DLA at any rate from and including 13 February 2002. The Legally Qualified Member stated that the claimant was entitled to the lower rate of the mobility component of DLA from and including 1 May 1995 but, of course, this decision had no effect in light of the decision of the majority. The reasons for the Tribunal's decision were set out by the Legally Qualified Member in the following way: -

"Majority

The claimant agrees that the majority of her panic attacks occur indoors – 3 out of 4 per week usually. The General Practitioner's letter of 21 May 2003 refers to her wakening at night due to panic attacks. Gets chest pains. She is not receiving any behavioural therapy regarding her panic disorder nor has she been re-referred to Community Psychiatric Nurse. They do not accept that guidance or supervision is required on unfamiliar routes for the majority of time. Nor do they accept that she would not go out of doors without being accompanied.

Minority (Legally Qualified Member)

Believes that guidance and supervision is reasonably required in that the Appellant would otherwise not go out on unfamiliar routes. She does suffer panic attacks when outside and although the majority of attacks occur at home it is reasonable to accept that she has an inherent fear of panicking when out especially on unfamiliar routes and feels that she would not otherwise go out to unfamiliar places without the presence of another person."

Regulation 53(1) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 requires the Chairman of a Tribunal, (in the present case the Legally Qualified Panel Member) to record in summary the decision of a Tribunal. If a party to the proceeding requests a statement of the reasons for the Tribunal's decision, the Chairman, in accordance with regulation 53(4), is required to record a statement of the reasons and a copy of that statement must be sent to each party. Under regulation 53(5) if a decision is not unanimous, the decision notice must record the fact that there has been dissent by one member and the statement of reasons must include the reasons given by that member for dissenting. Therefore, in the present case the Legally Qualified Member has correctly recorded that in relation to the mobility component that there has been a dissent and the reasons for both the majority and the minority decision have been correctly noted.

On an application by the claimant for leave to appeal to a Commissioner the Legally Qualified Member granted leave and stated as follows: -

"… I am satisfied that grounds have been established that the decision of the tribunal is, or may be, erroneous in point of law.

Point of law: The majority took into account irrelevant considerations and did not explain why they rejected the applicant's evidence."

Examination of the case makes it entirely clear that the claimant is only contesting the Tribunal's decision in relation to the mobility component. The grounds of appeal, inter alia, submit that the majority of the Tribunal failed to give adequate reasons for its decision in relation to the mobility component.

The claimant is represented by Mr David Gibson of the Antrim District Citizens Advice Bureau while Mr Toner of the Decision Making and Appeals Unit represents the Department. I have received written submissions from Mr Toner but, other than the notice of appeal, no further submissions have been made by Mr Gibson.

There is an issue in the case arising out of the majority's reasons as it appears to have accepted that most of the claimant's panic attacks were indoors so, logically, the majority must have accepted that some attacks occurred out of doors. The Department has argued that the reasons do not in fact state that the majority accepted that she has most of her attacks indoors because it actually records that the claimant's evidence was that her attacks are mostly indoors but does not specifically accept that evidence.

The Department view is correct from a semantic point of view but, if this is the correct interpretation, the net result must be that the actual reasoning is not clear. The Department has pointed out that, in relation to the care component, all three members of the Tribunal found the claimant's evidence vague and contradictory. Accordingly, in the Department's view, it is reasonable to assume that the claimant's evidence in relation to the mobility component was rejected for exactly the same reason.

This may perhaps be correct and it is possible that the majority of the Tribunal, when dealing with the claimant's case concerning mobility, did not believe the claimant as, otherwise, the majority would have come to a similar view to that of the Legally Qualified Panel Member. It is possible that this conclusion could be backed up by the reference to the fact that the claimant was not receiving therapy, nor was she the subject matter of referrals.

Nevertheless I conclude that the majority's reasoning does not explain why it has rejected the appellant's evidence and, by not so doing, the majority has failed to give adequate reasons for its decision.

It seems that, as is the usual practice, the majority's reasons have been set out by the Legally Qualified Member. In so doing the Legally Qualified Panel Member has carried out her statutory duty. It is also clear, taking into account the reasons that the Legally Qualified Panel Member gave for granting leave to appeal, that she was unhappy about the reasoning given by the majority. It is a difficult task for any person in the position of the Chairman of a Tribunal, where he or she is in the minority, to set out both the majority and the minority reasoning. Nevertheless, it is a task well within the compass of a Chairman, qualified as a solicitor or barrister. Accordingly, great care must be given by the Chairman to ensure that the non-Legally Qualified Panel Members appreciate that the reasons must be set out in such a way as to satisfy the statutory requirement to give reasons. Accordingly, all relevant information in relation to the decision making process must be given by the majority to the Chairman to enable him or her to set out the majority's reasons. Accordingly the Chairman has an especial responsibility to ensure that the majority has addressed all the relevant issues and dealt with them as appropriately as possible, even though he or she finds that he or she must dissent from the majority view.

For the reasons stated I allow the appeal and set aside the Tribunal's decision. Consequently I refer the matter back to a differently constituted Tribunal for a rehearing. However, the fact that this appeal has been allowed should not be taken as an indication of the ultimate success of the claimant's appeal to a Tribunal.

(signed): John A H Martin QC

Chief Commissioner

5 April 2004