Northern Ireland - Social Security and Child Support Commissioners' Decisions

 


Decision No: C24/07-08(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992
SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
DISABILITY LIVING ALLOWANCE
Application by the above-named claimant for leave to appeal, and resultant appeal, to a Social Security Commissioner on a question of law from a tribunal's decision dated 25 May 2007
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. I grant leave with respect to an application by the claimant to appeal against a decision of a tribunal sitting in Ballymena on 25 May 2007 (the tribunal) and move to determine the ensuing appeal.
2. The Department has submitted two sets of comments on the application and opposed it. However, both parties have consented to the application being treated as an appeal and any question arising on the application being determined as if it arose on appeal and, having regard to the very full comments from each side on the issues arising, I consider it appropriate for me to so treat the application. In the original application, an oral hearing was requested but in later submissions, the appellant's legal adviser ("the representative") appears not now to pursue that request. In any event, I am wholly satisfied, having regard to all the points already fully made, that the proceedings can properly be determined without a hearing.
3. I set aside the tribunal's decision which I determine is in error of law, and return the appeal to a new tribunal for a fresh hearing.

Background

4. The appellant was awarded the lower rate of the mobility component (lower mobility) and the middle rate of the care component (middle care) of disability living allowance (DLA) from 29 October 2002 to 28 October 2006. On her renewal claim, a decision-maker (DM), on behalf of the Department, on 18 August 2006, awarded middle care only, for the period 29 October 2006 to 28 October 2008.
5. In making her decision, the DM expressly relied on a report from the general practitioner (GP) dated 11 August 2006; in rejecting lower mobility, that the GP answered "no" to a question asking whether attention or supervision was required to enable the appellant to get around in unfamiliar surroundings most of the time; then, in accepting that middle care remained appropriate, the DM noted the GP's statement that the appellant has "persistent anxiety and depression" and "benefits from support and encouragement of family".
6. The claimant appealed to a tribunal, in terms relating both to her mobility and also to asserted night needs.

The tribunal history

7. On 12 January 2007, a tribunal (the paper tribunal) convened to consider the claimant's case and adjourned under the following directions:

"1. The appeal should be re-listed as an oral hearing.

2. The appellant is encouraged to take advice about her appeal. She has an existing award of the Middle Rate Care.

The submission does not challenge this award but in considering the appeal all issues are open. Whilst the appellant may feel a higher award is justified she should note if the evidence indicated the existing award was not appropriate it could be removed".

8. In a letter received by the Appeals Service (NI) (TAS) on 7 February 2007, the appellant wrote that she still wished to have a paper determination. Her stated reasons were these: She feared that appearing in front of a "board" could bring on a panic or asthma attack; furthermore, because of her condition she did not like to leave her home. She emphasised that she was now only appealing about the loss of lower mobility. There is also a letter on file from her husband, emphasising his wife's poor mobility, asthma and depression; as the date stamp is illegible, I am unsure exactly when the husband's letter came but I suspect it was also in February 2007 as it is referred to in the tribunal's record of proceedings. It was the husband who had provided the "statement from someone else who knows you", about the claimant's illnesses and disabilities, on the DLA form.
9. On 25 May 2007, the tribunal proceeded by way of an oral hearing. Neither the appellant, her husband, nor any representative or other witness on her behalf was present. Not, regrettably, was any presenting officer (PO) in attendance. It was the unanimous decision of the tribunal that, from and including 29 October 2006, the appellant did not satisfy the conditions of entitlement to any rate of the care component, nor to any rate of the mobility component. In those terms, therefore, it dismissed the appeal to it.

Appeal to the Commissioner

10. On 15 August 2007, the legally qualified panel member (LQPM) signed the tribunal's original statement of its reasons for decision. This version included the following:

"4. The appellant has appealed the outcome decision of the 29th October 2006 on the renewal claim.

5. We must consider the circumstances at the date of the decision under appeal the 29th October 2006.

…

18. … We bore in mind we are focusing our attention on her condition as at October 2006".

The tribunal's reasons were stated to be common to its consideration of both the care and mobility components of DLA.

11. By document received by TAS on 14 September 2007, the representative, on the appellant's behalf, applied for leave to appeal to the Commissioner, giving as one of the grounds that the tribunal had identified the incorrect date of the decision under appeal to it. A tribunal clerk wrote back on 5 October 2007 to the effect that the date of 29 October 2006 had been inserted in error; she enclosed an amended statement with "18 August 2006" inserted instead of the date "29 October 2006" in its paragraphs 4, 5 and 18.
12. I have constructed the sequence of events with difficulty because the documents available to me are not in chronological sequence, nor detailed in any accompanying schedule; curiously, the copies of the original and amended statements of reasons signed by the LQPM in my set of papers both appear to be dated "29/9/07" and, furthermore, the supposed later version is positioned much earlier. There is, moreover, no copy of the actual "correction" by the LQPM and which, on the face of it, sets out the authority under which the LQPM acted in amending the original statement. However, sandwiched in the papers supplied since appeal was taken to the Commissioner, is a letter to the representative dated 8 November 2007 from another tribunal clerk; this notes the LQPM's later reference to regulation 57A of the Social Security and Child Support (Decisions and Appeals) Regulations (NI) 1999 (the decisions and appeals regulations) as authority for the alteration.

My conclusions and reasons

Altering a statement of reasons

13. As the representative notes, regulation 56 of the decisions and appeals regulations in its terms only allows correction of accidental errors in a decision notice; furthermore, it is designed for mere slips, not changes in substance. However, Regulation 57A provides at (3):

"Nothing in this Chapter shall be construed as derogating from any power to correct errors or set aside decisions which is exercisable apart from these Regulations".

14. The extent to which there remains an implied judicial power to correct an error in a document in the decision process, albeit such a power is not directly given by any regulatory provision, is not an issue which I have to decide. This is because, whether or not the alteration is valid, the tribunal's reasons are inadequate. I consider to be directly apposite here what was said by the Commissioner in Great Britain in CDLA/1807/2003:

"5. Clearly, a tribunal cannot have had two different sets of reasoning. The fact that the chairman has produced two different accounts raises a doubt as to which is correct. …"

6. In those circumstances, there is a doubt about the accuracy, and therefore the adequacy, of the tribunal's reasons. That makes the tribunal's decision wrong in law."

15. The inconsistency in the present case, which relates to a matter of substance standing the prohibition on any consideration of circumstances beyond the date of the decision under appeal, even in a renewal claim, renders the tribunal's reasons inadequate. The tribunal thereby erred in law and irrespective of whether it also acted outwith its powers. However, in this respect, I agree with the submission made on behalf of the Department. As there is no suggestion whatsoever in the present case that circumstances changed in the two-month period between the date of the decision and the date of the renewal, or was expected to do so, reliance on the wrong date would have made no difference to the outcome. It was therefore not a material error of law and would not therefore, on its own, have justified set aside.

Findings based on evidence

16. In effect, the representative submits that there was insufficient evidence for the tribunal to conclude that there were "… no indications of any significant mental health problem" and … "[the claimant's mental health] condition has improved".
17. The submission on behalf of the Department is correct in stating that, on a renewal claim, it is not necessary for the Department to show "improvement"; nevertheless, if a tribunal explains its refusal of an entitlement given in a prior period in terms of a supposed "improvement", then its obligation to provide adequate reasons means that it is incumbent on it to point to the evidential basis for that conclusion. I am unable to discern on what evidence relating to improvement the tribunal relied. On behalf of the Department, it is pointed out "… that the GP has in fact stated that with the exception of activities related to cooking [the appellant] could manage to cope with the various tasks unaided". What the GP said, in ticking "yes" to the question asked, was that the appellant could safely (my emphasis) manage the various activities except cooking; but this does not address whether it is reasonable to expect her to do so. Moreover, while the GP did not list any specific tasks which the appellant would be unable to perform without prompting, motivating, and encouragement, the GP nevertheless gave the general response, "benefits from support and encouragement of family", which could hardly be construed as a total negative with respect to a requirement for such help with particular activities.
18. The correct approach when dealing with a renewal claim is set out in R(M) 1/96. A previous award does not raise any presumption in the appellant's favour, but the requirement for a tribunal to give reasons for its decision means that it must explain why it is not renewing a previous award unless this is obvious from its findings. A tribunal does not have to point to an improvement in the claimant's condition, although this is one way of explaining why a previous award is not being renewed. A tribunal could alternatively, for example, rely on robust primary findings which clearly demonstrate that the burden of proof to show entitlement has not been made out. The tribunal neither made such findings, nor did it justify its reliance on an improvement by pointing to the evidence on which it based that conclusion. The tribunal erred in failing adequately to set out the basis of its reasoning with respect to the extent to which the appellant may or may not have a mental health problem so that she reasonably requires help with bodily functions by prompting and motivating.

Considering any issue that is not raised by the appeal

19. A Tribunal of Commissioners in Great Britain discussed in R(IB) 2/04 at paragraphs 93 and 94:

"93. … when it would be appropriate for the tribunal to exercise its discretion to consider superseding adversely to the claimant when that was not in issue in the appeal. The discretion is one to be exercised judicially, taking into account all the circumstances of the particular case. …

94. There must, however, be a conscious exercise of this discretion and (if a statement of reasons is requested) some explanation in the statement as to the reasons why it was exercised in the manner it was. In exercising the discretion, the appeal tribunal must of course have in mind, in particular, two factors. First, it must bear in mind the need to comply with Article 6 of the Convention and the rules of natural justice. This will involve, at the very least, ensuring that the claimant has had sufficient notice of the tribunal's intention to consider superseding adversely to him to enable him properly to prepare his case. The fact that the claimant is entitled to withdraw his appeal any time before the appeal tribunal's decision may also be material to what Article 6 and the rules of natural justice demand. Second, the appeal tribunal may consider it more appropriate to leave the question whether the original decision should be superseded adversely to the claimant to be decided subsequently by the Secretary of State. This might be so if, for example, deciding that question would involve factual issues which do not overlap those raised by the appeal, or if it would necessitate an adjournment of the hearing."

20. The above Tribunal of Commissioners was analysing applications for supersession made by a claimant and whether an appeal tribunal may go on to consider if there is a ground for supersession which would lead to a lower award. It held that a tribunal could do so, subject to the protection set out above. The present appeal concerns a renewal claim. However, the matters relating to a fair hearing are in principle identical. A claimant is in danger of leaving the appeal hearing with a lower award than the one with which he or she took issue; if, therefore, the Department has not suggested this as a possibility for appropriate evaluation, the factors mentioned by the tribunal are equally relevant.
21. On reflection, I expressed the position too broadly in paragraph 14 of C18/07-08 (DLA) in suggesting that the onus of proof shifted in an appeal relating to a renewal claim if a DM had made a favourable decision which an appeal tribunal then sought to remove. A legal burden of proof can never shift during the course of the appeal, although it may be on different parties for different issues, (for example, insofar as an applicant for supersession seeks a more favourable outcome, the onus lies on the claimant but insofar as the Department seeks to remove any element of an award through supersession, the burden lies on the Department). The burden of proof in a renewal claim (as with an original claim) lies in all matters on the claimant; as there is a full rehearing on appeal to a tribunal, the same placing of the legal burden continues. However, the context that the appellant previously received lower mobility and middle care and had been awarded at least a continuation of middle care by a DM in the decision under appeal generated a need for very cogent weighing of the evidence before the tribunal took away middle care (and indeed did not even award her lowest rate care component of DLA). In my judgment, the tribunal's weighing of the evidence was insufficient having regard to the circumstances, firstly, of a renewal claim and, secondly, of considering an issue not raised by the appeal; nor were its conclusions adequately thereafter explained against that background.
22. Furthermore, the tribunal failed to comply, either in how it conducted its hearing or in how it wrote its statement of reasons, with the matters emphasised in R(IB) 2/04 (set out above in my paragraph 19). It is said on behalf of the Department that the substance of the adjournment directions of the paper tribunal (see my paragraph 7 above for the text) was "… in itself indicative of the fact that the tribunal was aware that considering the care component was discretionary and that the evidence before them may have cast a doubt as to whether or not the award of the middle rate care component was appropriate". I must say that I beg to differ on the sufficiency of that warning. Insofar as the tribunal exercised its discretion to consider any issue not raised in the appeal by either party, it does not explain what led it to do so. The paper tribunal did not spell out very clearly to an unrepresented appellant the unusually wide ambit of tribunal powers and nor did the appeal papers give her any hint of this. Despite the letter from the appellant and the one from her husband, no consideration seems to have been given to a domiciliary hearing nor to suggesting that she sent her husband as a witness. The paper tribunal did not set out in what way the evidence indicated that the existing award was possibly inappropriate; given that it was the same evidence which had led the DM to continue middle care, it is difficult to see how the appellant was given sufficiently clear specification of why a tribunal might consider that no care component was applicable, which would enable her properly to prepare her case. Moreover, she was not told about her own chance to withdraw the appeal, at will, prior to its determination. In the light of the factors set out in R(IB) 2/04, I am not satisfied that the discretion to remove her award was exercised judicially, taking into account all the circumstances of the case.

Summary

For the above reasons, the tribunal erred in law and its decision must be set aside. The appeal is therefore remitted to a new tribunal to begin again. It is emphasised that there will be a complete rehearing on the basis of the evidence and arguments available to the new tribunal, and in accordance with my guidance above, and the determination of the claimant's case on the merits is entirely for them. Although the claimant has been successful in her appeal limited to issues of law, a decision on the facts of her case remains open. The claimant should be aware that, if she is unable to walk outside her home, even with guidance or supervision, she does not fit the criteria for lower mobility.

(signed): L T PARKER

NI Deputy Commissioner

(GB Commissioner)

1 April 2008