Northern Ireland - Social Security and Child Support Commissioners' Decisions

 


[2009] NISSCSC C14_08_09(DLA) (14 May 2009)

Decision No: C14/08-09(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 26 March 2008
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. Having considered the circumstances of the case and any reasons put forward in the request for a hearing, I am satisfied that the appeal can properly be determined without a hearing.
2. Both parties to the proceedings before the Social Security Commissioner have expressed the view that the decision of the appeal tribunal, which is the subject of this appeal, is in error of law.
3. I am in agreement with both parties that the decision of the appeal tribunal was in error of law for the reasons identified by the parties.
4. 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.
5. 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, as there are further findings of fact which require to be made. Further 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.
6. 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. The newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal.

Background

7. On 3 August 2007, a decision-maker of the Department decided that the appellant was entitled to the higher rate of the mobility component of DLA from 29 September 2007 to 28 September 2010. There had been previous awards of entitlement to DLA.
8. Further correspondence in support of the claim to DLA was received on 21 September 2007 from a friend of the appellant.
9. A letter of appeal was received on 16 October 2007.
10. The appeal tribunal hearing took place on 26 March 2008. The appellant attended the oral hearing, represented by a solicitor, and gave oral evidence to the appeal tribunal. The appellant was also accompanied by her carer.
11. The record of proceedings for the appeal tribunal hearing indicated that the appeal tribunal had before it:

(i) the written submissions prepared for the appeal tribunal hearing;

(ii) the appellant's general practitioner (GP) records; and

(iii) two further pieces of correspondence.

12. The appeal tribunal, by a majority, disallowed the appeal and confirmed the decision dated 3 August 2007.
13. On 27 March 2008, a request for a statement of reasons (SORs) for the appeal tribunal's decision was received in The Appeals Service (TAS).
14. On 21 May 2008, the SORs were issued to the appellant.
15. On 3 July 2008 an application for leave to appeal to the Social Security Commissioner was received in TAS.
16. On 28 August 2008, the application for leave to appeal was granted by the legally qualified panel member (LQPM). The point of law identified by the LQPM was recorded as 'Evidence may have been inadequately assessed'.

Proceedings before the Social Security Commissioner

17. On 19 September 2008, the appeal to the Social Security Commissioner was received in the Office of the Social Security Commissioners.
18. On 15 October 2008 the application was accepted for special reasons by the Chief Commissioner.
19. On 15 October 2008 observations were sought from Decision Making Services (DMS) and these were received on 10 November 2008. As will be noted in greater detail below, DMS supported the appeal to the Social Security Commissioner.
20. Observations were shared with the appellant on 20 November 2008.
21. 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.

Errors of law

22. 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."

The error of law in the present case

23. The decision under appeal was a decision of the Department, dated 3 August 2007, in which a decision-maker of the Department decided that the appellant was entitled to the higher rate of the mobility component of DLA from 29 September 2007 to 28 September 2010.
24. The SORs for the appeal tribunal's decision records that 'Only the care component was in contention'. From this statement, and the detail of the decision notices, it is clear that the appeal tribunal was of the unanimous view that the appellant's entitlement to the higher rate of the mobility component of DLA was justified.
25. There was, however, a difference of opinion as to the appellant's entitlement to the care component of DLA. The majority of the appeal tribunal found that the appellant should have no entitlement to the care component. The dissenting minority member thought that she should have an entitlement to the middle rate of the care component.
26. Regulation 53(5) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, provides that where a decision of an appeal tribunal is not unanimous, the SORs for the appeal tribunal's decision must include the reasons given by the dissenting member for dissenting.
27. In the present case, the LQPM has adhered to that requirement and the SORs is divided into the reasons for the majority decision and the reasons for the minority dissent.
28. The reasons set out for the majority decision read as follows:

'1) The evidence of the substantial daily physical help and moral support which (the claimant) was said to receive from (…) and from (…) was exaggerated. The extent and intimacy of physical care said to be given was out of all proportion to the appellant's likely physical or mental needs arising from her diagnosed conditions.

2) Even if the evidence was not exaggerated and the help said to be given was largely given, that help was not reasonably required. (The claimant's) GP had indicated at Box 6 that (the claimant) could self-care "except when mood v. low". The GP's assessment of the appellant's care needs was preferred.

3) The content of some of the medical reports with the patient records was also inconsistent with the care requirements portrayed. For example, [Dr P…], a consultant physician wrote on 9.10.2003: "On examination – hear rate 80 b.p.m. regular. Cranial nerves were normal. Fields of vision were completely intact. No visual inattention. Speech was normal. The power in the right arm and hand was mildly reduced to about Grade 4, with power in all other groups Grade 5. Sensation seemed intact. No sensory inattention. There was no evidence of neglect. I found reflexes all difficult to elicit but no difference between the two sides. Plantars were definitely flexor both sides. Gait was normal, to my eye and balance was normal. Cardio exam was completely normal".

The reasons set out for the minority decision read as follows:

'The member in the minority considered that an award of the middle rate of the care component was justified on the evidence. This would have been on the basis of frequent daytime attention required from another for help with bodily functions. It was accepted that there was no real risk of self harm.

The reasons were:

1) The appellant's evidence was not self evidently contradictory in any particular. She had presented as a genuine person and her claims had been stoutly supported in writing by (…) and in person by (…). The majority too readily discounted the oral evidence. The GP's report had concluded (Page 7):

"Genuine case. Has been through a very difficult situation which is ongoing. Chronic pain makes mood worse."

2) The detail of daily physical help and encouragement to (the claimant) described in the handwritten letter from (…) was persuasive. (…)(…) had gone to some lengths to support the appeal and this should not be disregarded.

3) The appellant suffered daily pain inducing low mood for which she was attending psychiatric outpatients. The report from the [Dr P….] was almost 4 years old at the date of decision under review and it was a mistake to place too much emphasis on that report. In any case, difficulties in reaching a diagnosis precisely to explain (the claimant's) pain and weakness should not outweigh the evidence of daily living restrictions if that evidence seemed genuine. The medical records disclosed that fibromyalgia had been diagnosed by [Dr L…], a consultant physician in October 2003. The letter dated 22.1.0.2008 [sic] from Louisa Morrison a community psychiatric nurse, was closer in time to the date of decision and that letter referred to "ongoing support in the home environment in the form of a carer ".

29. In the application for leave to appeal to Social Security Commissioner, the appellant's representative had submitted that:

(i) the majority had focused on an old report from a consultant physician dated 9.12.03;

(ii) the appellant's GP had also concluded in his report "Genuine case. Has been through a very difficult situation which is ongoing. Chronic pain makes mood worse", and that it had been reported that she suffered daily pain;

(iii) the two comments from the appellant's GP had not been considered together, by the majority, and had not been explored with the appellant to determine the extent of the care needs and help reasonably required throughout the day;

(iv) the appellant could not understand how the majority decision was reached when the minority member offered a reasoned argument and extent of care needs which demonstrated criteria for a middle rate of the care component.

30. As was noted above, DMS supported the appeal to the Social Security Commissioner. In their written observations, dated 10 November 2008, DMS observe:

'… the GP report indicates that (the claimant's) mood was reasonable/low at present, that she was a genuine case and that chronic pain makes mood worse. Clearly this evidence would lead to the conclusion that there were times when (the claimant's) mood was very low and at those times she could require help with her personal care. Before reaching any conclusion as to whether (the claimant) required any help with her personal care, the tribunal should, I submit, have investigated both the frequency and duration of those periods of low mood …

I also note that … the majority of the tribunal refer to a report from a Consultant Physician dated 9 October 2003. The decision under appeal in this case was the decision of 3 August 2007 which disallowed (the claimant's) award of personal care from 29 September 2007. Whilst the majority of the tribunal stated that the report of 9 October 2003 was inconsistent with the care needs stated it is I submit not unreasonable to assume that the personal care needs may have changed in that period. There is nothing in the reasons for its decision to explain how a report which was over 3 years old was accepted as being indicative of the current level of needs. For these reasons I submit that the tribunal has erred in law …'

31. As was noted above, I am in agreement with both parties that the decision of the appeal tribunal was in error of law for the reasons identified by the parties.
32. More particularly, I find that the SORs for the majority decision is inadequate to explain why the majority rejected the evidence of the appellant's GP as set out in the copy of the factual report dated 19 June 2007, and preferred the evidence of the consultant physician, as set out in the report of 9 October 2003.
33. There is a clear duty on appeal tribunals to undertake a rigorous assessment of all of the evidence before it and to give an explicit explanation as to why it has preferred, accepted or rejected evidence which is before it and which is relevant to the issues arising in the appeal.

In R2/04(DLA) a Tribunal of Commissioners, stated, at paragraph 22(5):

' … there will be cases where the medical evidence before a particular tribunal will be unsatisfactory or deficient in an important respect. It will often be open to the tribunal hearing such a case to reject the medical evidence for that reason. Indeed, it will sometimes be its duty to do so. However, and in either case, the tribunal cannot simply ignore medical evidence which is not obviously irrelevant. It must acknowledge its existence and explain its reasons for rejecting it, even if, as will often be appropriate, such reasons are fairly short. We repeat, the decision whether a person suffers from a particular medical condition is a matter for the tribunal. That body must have regard to the whole of the evidence, including the medical evidence. Where it rejects medical evidence it must, unless the reasons are otherwise apparent, explain why it does so. Anything less is likely to result in an appeal being brought on the grounds that the tribunal has not given adequate reasons or that its decision is against the weight of the evidence.'

34. As has already been noted, contained within the factual report of the appellant's GP, there is evidence which, arguably, is supportive of the appellant's claim to the care component of DLA, and which is more relevant to the circumstances obtaining at the date of the decision under appeal, and relevant to the appellant at that same date. In its SORs the majority of the appeal tribunal has made no reference to the report from the GP. The SORs for the majority decision gives no indication as to how that medical evidence was assessed and whether or not it was accepted or rejected.
35. The SORs for the decision of the majority of the appeal tribunal is inadequate to explain how it arrived at its decision on the appellant's entitlement to the care component of DLA. Accordingly, the decision of the majority of the appeal tribunal is set aside.
36. I am also in agreement with DMS that the majority of the appeal tribunal were under a duty to investigate and explore the frequency and duration of the low moods, described by the GP, in line with its inquisitorial role. In C1/01-02(DLA), Commissioner Brown stated, at paragraph 12:

'A Tribunal does have an inquisitorial role and as such the members of the Tribunal will usually play a more active part in the hearing than would a judge in a Court. This will often involve detailed questioning (which is often necessary to ascertain whether or not a person fulfils the very detailed conditions for Disability Living Allowance) and the raising of possible inconsistencies and other issues. So doing the Tribunal is not in breach of the rules of natural justice. I am unable to ascertain any such breach in this case though I regret that the claimant feels a sense of grievance with the manner in which the hearing was conducted. It might be helpful if claimants were more generally aware of the Tribunal's inquisitorial role. In this case it has not been alleged there was any omission from the record of proceedings and that record does indicate a full investigation as to whether or not the conditions were satisfied. It also indicates that the claimant and his representative put their case fully.'

37. The failure of the majority of the appeal tribunal to investigate and explore the frequency and duration of the low moods, described by the GP, in line with its inquisitorial role renders its decision as being in error of law. Accordingly, the decision of the majority of the appeal tribunal is set aside.

The recording of reasons in 'majority' decisions

38. Regulation 53(4) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, provides that:

'(4) Subject to paragraph (4A), a party to the proceedings may apply in writing to the clerk to the appeal tribunal for a statement of the reasons for the tribunal's decision within one month of the sending or giving of the decision notice to every party to the proceedings or within such longer period as may be allowed in accordance with regulation 54 and following that application the chairman or, in the case of a tribunal which has only one member, that member, shall record a statement of the reasons and a copy of that statement shall be sent or given to every party to the proceedings as soon as may be practicable.

39. Regulation 53(5) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, where a decision of an appeal tribunal is not unanimous, the SORs for the appeal tribunal's decision must include the reasons given by the dissenting member for dissenting.
40. As I understand it, the procedure for the recording of a SORs for an appeal tribunal's decision is as follows:

(i) The time at which a SORs for an appeal tribunal's decision is prepared varies from case to case.

(ii) In the majority of cases, following the making of the decision and preparation of the formal decision notice, the LQPM, in consultation with the other members of the appeal tribunal, in appeals where the constitution of the appeal tribunal extends beyond the LQPM, will prepare and record relevant findings of fact and draft reasons, and retain these in a judicial notebook, or other form. On receipt of an application for a SORs, under regulation 53(4), the LQPM will prepare the SORs, on the basis of the notes and drafts already available. The practice of preparation of findings of fact and draft reasons, immediately following the making of the decision has the dual advantages - the completion of that task when the issue(s) in the appeal are fresh in the minds of the members of the appeal tribunal; and the facilitation of the preparation of the 'full' SORs by the LQPM, when that is subsequently requested by a party to the proceedings.

(iii) In a minority of cases, and usually dependent on the custom of individual LQPMs, the findings of fact and 'full' SORs are both prepared and finalised on the day of the appeal tribunal hearing. These are then retained on file, ready to be issued to the party to the proceedings requesting them.

41. As was noted above, where a decision of an appeal tribunal is not unanimous, the SORs for the appeal tribunal's decision must include the reasons given by the dissenting member for dissenting. A number of aspects of that rule require further consideration.
42. Firstly, where the LQPM was part of the majority decision, the task of preparing and recording the reasons for the dissenting member's decision is not an easy one. The LQPM, as part of the deliberations leading to the appeal tribunal's decision, will have endeavoured to ensure a unanimous decision and, as part of that, will have sought to persuade the dissenting member as to the correctness of the majority view. Having failed so to do, the role of the LQPM is now to record reasoning and analysis with which he or she will not agree. There is a clear duty, in my view, on the LQPM to set aside any partiality which might be felt towards the dissenting member's view, and to place his or her self in the position of the dissenting member when it comes to the task of the recording of reasons. The LQPM must articulate the reasons of the dissenting member as if they were his or her own. A failure to fulfil this duty is a failure of the judicial role.
43. Secondly, it is clear that as the SORs will be prepared by the LQPM, the LQPM will also have the task of preparing and including the reasons of the dissenting member. It must never be the case that where the dissenting member is not the LQPM, that the dissenting member is asked to prepare the reasons for disagreement. That role is for the LQPM.
44. Thirdly, in preparing the reasons of the dissenting member, the LQPM must be diligent in ensuring that the reasons are reflective of the basis upon which the dissenting member disagreed with the majority. The reasons must

(i) be comprehensive in dealing with the issues raised by the appeal;

(ii) must include relevant findings in fact, where these differ from those of the majority,

(iii) provide an outline of the evidential assessment process which gave rise to those findings;

(iv) detail which evidence is accepted and preferred, and give reasons why;

(v) state, where necessary, why the dissenting member has adopted a particular interpretation of the law relevant to the issues in dispute; and

(vi) give reasons relevant to the dissenting member's view.

The reasons for the dissenting member's decision must never be drafted as a brief, sketchy add-on to more complete reasons for the majority.

45. Fourthly, the SORs must not identify the dissenting member by name, or by judicial category, where relevant.
46. Fifthly, it will be safest and best practice, where the eventual decision of the appeal tribunal is by a majority, for the full findings of fact and reasons for both the majority and dissenting member's decisions, to be prepared and finalised on the day of the appeal tribunal hearing. Such a practice will avoid any difficulties with recall for the LQPM and obviate the requirement for the subsequent issue of reasons to the dissenting member in draft form.

Disposal

47. The decision of the appeal tribunal dated 26 March 2008 is in error of law.
48. 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.
49. 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. Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.

(signed): K Mullan

Commissioner

7 May 2009