Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2007] NISSCSC C39_06_07(DLA) (16 July 2007)

Decision No: C39/06-07(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998 DISBILITY LIVING ALLOWANCE Appeal to a Social Security Commissioner on a question of law from a Tribunal's decision dated 16 August 2006 DECISION OF THE DEPUTY SOCIAL SECURITY COMMISSIONER
1. This is an appeal by the claimant, with the leave of Mrs Commissioner Brown, against a decision of the appeal tribunal sitting at Newtownards on 16 August 2006 (the "appeal tribunal"). For the reasons which I give that decision is erroneous in point of law. I therefore set it aside and refer the case to a differently constituted tribunal (the "new tribunal") for a complete rehearing.
2. The claimant, who was born on 18 January 1950, suffered a stroke in October 2003, which has left him disabled down his left side. He also suffers from epilepsy. He was previously in receipt of the highest rate of the care component and the higher rate of the mobility component for the period from 19 January 2004 to 6 November 2005. At the beginning of June 2005, he applied to renew those awards. This time he was not so successful. By a decision dated 19 September 2005, he was awarded the middle rate of the care component and the lower rate of the mobility component from 7 November 2005 to 6 November 2007.
3. The claimant was disappointed and he appealed the decision of 19 September 2005. His appeal was heard by the appeal tribunal on 16 August 2006. It was dismissed. The appeal tribunal, which consisted of a chairman sitting with a medical member and a member with experience of disabled persons, decided unanimously that the claimant was entitled to the middle rate of the care component. It also decided, but this time by a majority, that he was entitled to the lower rate of the mobility component. In giving reasons for the latter decision the appeal tribunal said (my italics):

"... Low rate mobility has not been disputed by the Department and the Tribunal are satisfied by a majority decision that the appellant is entitled to low rate mobility on the basis that he needs guidance and supervision whilst walking out of doors on unfamiliar areas. ..."

No mention was made of the reasons which led one of the three members to take a different view nor, indeed, whether that view was more, or less, favourable to the claimant than that of the majority.

4. Leave to appeal to a Commissioner was refused by the chairman of the appeal tribunal. The application for leave was renewed and came before Mrs Commissioner Brown. She directed submissions from the Department for Social Development on the merits of the application. The resulting submissions are contained in the Department's letter of 6 February 2007. The claimant had sought leave to appeal on a number of grounds. The Department submitted that none of his grounds identified an arguable error of law. For avoidance of doubt, I accept those submissions and would not have allowed the appeal on the basis of the claimant's grounds. However, the Department went on to submit that the appeal tribunal had erred in the following way:

"Error of Law

Although [the claimant] has not identified any errors in the tribunal decision I would submit that as the decision of the tribunal was a majority decision it (the tribunal) has erred in law in failing to record the dissenting member's reasons.

Regulation 53 of the Social Security and Child Support Decisions and Appeals Regulations (Northern Ireland) 1999 is the relevant legislation for the recording of reasons for the decision of a tribunal and insofar as relevant provides:

"53(5) If the decision is not unanimous, the decision notice specified in paragraph (1) shall record that one of the members dissented and the statement of reasons referred to in paragraph (4) shall include the reasons given by that member for dissenting".

In the Northern Ireland Commissioner's decision C35/02-03(IB) the Commissioner stated at paragraph 17:

"The second issue relates to the standard of reasoning to be adopted in a majority decision, this standard is no different than it is in any other decision with the exception that the requirements of the said regulation 53(5) must be complied with. The decision must record that one of the members dissented and the statement of reasons is to include the reasons given by the dissenting member for so doing."

As can be seen regulation 53(5) is in mandatory terms, therefore a statement of reasons will be regarded as incomplete if lacking reasons for dissent. There is obviously practical reasons for including the dissenting members view in that it would give all parties a clearer understanding of the decision. Failure to include these reasons I submit has rendered the decision of the tribunal erroneous in law."

Leave to appeal was granted by Mrs Commissioner Brown on that basis.

5. I agree that there has been a failure to comply with regulation 53(5) and that such failure amounts to an error of law. The fact that the decision relating to the mobility component was a majority decision was recorded but nothing was said about the reasons given by the dissenting member. Regulation 53(5) is mandatory. Consequently the appeal must succeed. It is appropriate to mention the following matters. I entirely agree with the comment that there are obvious practical reasons for including the dissenting member's views because this will give all parties a clearer understanding of the decision. It also means that the majority members are required to consider the reasons given by the dissenting member and deal with those reasons if they have not already done so. Recording the dissenting member's view will also increase confidence in tribunals by demonstrating that they are not monolithic and that all the members play a part in arriving at a decision. If the matter is appealed further, knowledge of why the dissenting member took a different view can be of great importance to whoever has to decide the application for leave or the appeal itself. The reasons of the minority member may alert a party, or a Commissioner, to a flaw in the reasoning of the majority.
6. I would also say that although regulation 53(5) does not, apparently, require the dissenting member to be identified it is often extremely helpful to know who he or she was. For example, I have seen a statement of reasons which was puzzling to read for the probable reason that the dissenting, and unidentified, member was the chairman who had written the statement. Knowledge of who the dissenting member was may assist in understanding his or her reasons. For example, if a doctor takes a different view of the medical evidence. I can think of no fair reason for not disclosing the identity of a minority member. In my view regulation 53(5) should be amended to include such a requirement. In the meantime I consider it good practice for the statement of reasons to indicate who the dissenting member was.
7. The claimant has had the opportunity to respond to the Department's submissions. He would, understandably, like me to give a final decision. However, I am not in a position to make the necessary findings of fact. I therefore remit the matter to the new tribunal for a complete rehearing. In a letter, which was received by the Commissioners' Office on 8 March 2007, the claimant said:

"I ... am in the process of compiling more medical proof of my disability that has not changed in spite of my treatment by the DLA decision makers. ..."

Those remarks suggest that the claimant may not entirely understand the issues which the new tribunal will have to determine. First, the benefit in question is disability living allowance. The name is unfortunate. It suggests that the benefit is awarded to compensate a person for his or her disability. Indeed, many people think that the more disabled they are the higher the level of benefit to which they should be entitled. This is not the case. Disability is a pre-condition to the receipt of benefit but an applicant must go further and show that, as a consequence of his or her disability, the relevant conditions set out in section 72(1) and section 73(1) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 are satisfied. Details of the statutory conditions are set out early on in the case papers and I do not repeat them here. I do not wish to discourage the claimant from lodging further medical evidence.

However, it is important for such evidence to focus on the extent, or level, of his disability and the resulting problems that he encounters with daily living. There is no dispute over the fact that he has had a stroke and suffers from epilepsy. The questions which remain outstanding are how severe are the claimant's medical conditions and what impact they have on his daily life. It is the answers to the latter questions which will enable the new tribunal to decide which of the various conditions laid down in section 72(1) and section 73(1) are satisfied.

8. Further, it is not sufficient to say that the claimant's medical problems have not changed since the previous award. That may well be so. However, he may have adapted and learned to work round many of the difficulties caused by such problems. If that be the case he may no longer be entitled to the levels of benefit previously awarded.
9. The claimant should attend the rehearing and be prepared to answer any questions that the members of the new tribunal may wish to ask him. Questioning by members of the new tribunal is not an indication of bias or animosity. It is merely the way in which the new tribunal carries out the duties which have been imposed upon it. Further, the Department's letter of 6 February 2007 is worth studying. Although it is directed towards rebutting the various grounds of appeal put forward by the claimant it nevertheless contains helpful guidance on a number of points.
10. For the reasons given I allow the appeal and remit the matter to the new tribunal.

(Signed): J P Powell

Deputy Commissioner

16 July 2007