Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2009] NISSCSC C15_08_09(DLA) (17 June 2009)

Decision No: C15/08-09(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 7 November 2007
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. The decision of the appeal tribunal dated 7 November 2007 is in error of law. The error of law identified will be explained in more detail below.
2. 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.
3. 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.
4. In referring the case to a differently constituted appeal tribunal for re-determination, I direct that the appeal tribunal takes into account the guidance set out below.
5. 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

6. On 12 October 2006, a decision-maker of the Department superseded an earlier decision 6 December 1995. The decision dated 6 December 1995 had resulted in the appellant having an entitlement to the highest rate of the care component and the higher rate of the mobility component of DLA.
7. The decision of 12 October 2006 reduced that entitlement to the higher rate of the mobility component and the lowest rate of the care component of DLA from and including 12 October 2006.
8. An appeal against the decision dated 12 October 2006 was received in the Department on 7 November 2006.
9. The substantive appeal tribunal hearing took place on 7 November 2007 following three earlier adjournments of the appeal. The hearing immediately prior to the substantive hearing, which took place on 29 August 2007, had been adjourned to enable the appellant, and her husband, to take independent legal advice. The record of proceedings for the hearing dated 29 August 2007 record that the chairman had advised the appellant, and her husband, that 'the current award could be varied'.
10. The appellant attended the appeal tribunal hearing on 7 November 2007, and was represented by her husband.
11. The appeal tribunal disallowed the appeal, did not confirm the decision dated 12 October 2006 but substituted its own decision. This was to the effect that the appellant was not entitled to the mobility component of DLA from and including 12 October 2006, but was entitled to the lowest rate of the care component for a fixed period of three years, from 12 October 2006 to 11 October 2009.
12. On 24 January 2008 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.
13. On 28 January 2008, the application for leave to appeal was refused by the legally qualified panel member (LQPM).

Proceedings before the Social Security Commissioner

14. On 13 February 2008, a further application for leave to appeal to the Social Security Commissioner was received in the Office of the Social Security Commissioners and Child Support Commissioners. The principal ground for seeking leave to appeal was that the statement of reasons had failed to address the issue of supersession.
15. On 15 April 2008 observations were sought from Decision Making Services (DMS) and these were received on 19 April 2008. DMS opposed the application.
16. Observations were shared with the appellant on 12 May 2008.
17. A further submission was received from the appellant's representative on 10 June 2008. In this submission, the representative referred to C24/07-08(DLA) and R(IB)2/04 on the issue of removal of an existing award.
18. The further submission was shared with DMS, and on 5 July 2008 a further submission was received from them.
19. On 9 October 2008, I granted leave to appeal. The reasons which I gave for granting leave to appeal were that arguable issues arose to:

(i) the extent to which the appeal tribunal considered whether the decision-maker had grounds to supersede an earlier decision of the Department; and

(ii) the manner in which the appeal tribunal considered the issue of the appellant's existing entitlement to DLA.

20. I directed an oral hearing of the appeal which took place on 17 December 2008. At the oral hearing the appellant was represented by Mrs Carty from the Law Centre (Northern Ireland) and the Department was represented by Mr Hinton of the DMS section, accompanied by Mrs Stewart. Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions.
21. At the oral hearing of the appeal, Mrs Carty confirmed that the Department had made another decision in connection with the appellant's entitlement to DLA, making an award of the lowest rate of the care component and the higher rate of the mobility component of DLA from 1 February 2008 to 31 January 2010.

The arguments before the Social Security Commissioner

22. In her written and oral submissions, Mrs Carty submitted that there were three issues for consideration in the appeal:

(i) the powers available to an appeal tribunal to make a decision less favourable to an appellant;

(ii) the extent to which the appeal tribunal considered whether the decision-maker had grounds to supersede an earlier decision of the Department; and

(iii) the adequacy of the reasoning of the appeal tribunal.

23. In his written and oral submissions, Mr Hinton opposed the appeal on all three grounds cited by Mrs Carty.

Errors of law

24. 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.
25. 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 primary error of law in the present case

26. A Tribunal of Commissioners in Great Britain, in R(IB) 2/04, undertook an extensive analysis of the legislative provisions relating to decision-making and appeals. In Great Britain these provisions are the Social Security Act 1998 and the Social Security and Child Support (Decisions and Appeals) Regulations 1999, both as amended. In Northern Ireland these provisions are the Social Security (Northern Ireland) Order 1998 and the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, both as amended. To all intents and purposes the legislative provisions with respect to decision-making and appeals in Great Britain and Northern Ireland are identical.
27. At paragraph 73, of R(IB) 2/04, in discussing the appeal tribunal's powers with respect to supersession decisions:

'… it follows from our reasoning … that the appeal tribunal has jurisdiction, on appeal, to decide whether the outcome arrived at by that decision (i.e. either to change or not to change the original decision) was correct. This will or may involve deciding (a) whether one of the statutory supersession grounds (whether the one relied upon by the decision-maker or not) applied and (b) if so whether the original decision ought to be changed.'

28. The grounds upon which a decision can be superseded are to be found in regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.
29. The decision under appeal to the appeal tribunal, in the present case, was a decision dated 12 October 2006, in which a decision-maker decided that there were grounds to supersede a decision of an appeal tribunal, dated 6 December 2005.
30. Accordingly, the first task of the appeal tribunal was to determine whether the decision-maker, on 12 October 2006, had grounds to supersede the earlier decision of the appeal tribunal, dated 6 December 2005.
31. If the appeal tribunal determined that the decision-maker, on 12 October 2006, did not have grounds to supersede the decision of the appeal tribunal dated 6 December 2005, then that latter decision would continue to have effect.
32. If the appeal tribunal determined that the decision-maker, on 12 October 2006, did have grounds to supersede the decision of the appeal tribunal dated 6 December 2005, then the appeal tribunal could have gone on to consider entitlement to benefit, in light of the substantive rules for entitlement to DLA.
33. Finally, the appeal tribunal was under a duty to determine the effective date from which any supersession decision should take effect.
34. In the instant case, the appeal tribunal issued two separate decision notices to the following effect:

'The appellant is not entitled to the Mobility Component of DLA from and including 12 Oct 2006'

'The appellant is entitled to the Low Rate Care element of DLA (for the main meal test) from and including the [sic] 12 Oct 2006 for a 3 year period until 11 Oct 2009.'

35. The statement of reasons for the appeal tribunal's decision is detailed and a great deal of care has clearly been put into its production and drafting. The problem is that the statement of reasons for the appeal tribunal's decision does not deal with the issue of supersession. Indeed, in the statement of reasons there is no mention of the issue of supersession at all. The greater part of the statement of reasons is taken up with an assessment, albeit a careful and considered assessment, of the evidence available to the appeal tribunal, particularly in relation to a report of an examining medical practitioner and the appellant's general practitioner (GP) records.
36. In C12/08-09(DLA), I indicated, at paragraphs 48-58:

'48. The appeal tribunal was under a specific duty to determine whether the decision under appeal was correct. As that decision was a supersession decision the duty was to determine whether there were grounds to supersede under regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.

49. If the appeal tribunal determined that the decision-maker did not have grounds to supersede the earlier decision then that decision would continue to have effect.

50. If the appeal tribunal determined that the decision-maker did have grounds to supersede the earlier decision then the appeal tribunal could have gone on to consider entitlement to benefit, in light of the substantive rules for entitlement to DLA.

51. Finally, the appeal tribunal was under a duty to determine the effective date from which any supersession decision should take effect.

52. The appeal tribunal's duty is not only to consider the supersession issue, including grounds, entitlement and effective date, but to make clear that it has done so. It is not sufficient for it to be, as DMS suggests, implicit from the appeal tribunal's documentation that the supersession issue was addressed. That consideration must be explicit from the decision notice, the statement of reasons or a combination of both. In the present case, I am of the view that it is not even implicit that consideration was given to the supersession issue.

53. The consideration of the issues raised by the appeal is expressly a part of the appeal tribunal's inquisitorial role (on which issue see the further comments of the Tribunal of Commissioners in Great Britain in R(IB) 2/04 at paragraph 32). That would mean that the supersession issue ought to have been addressed, in any event.

54. In the present case, however, the appellant's representative, as is made clear in the record of proceedings, made a specific submission that 'nothing [sic] changed since initial award'. That representative, and, more importantly, his client were entitled to know the basis upon which the appeal tribunal had concluded that something had changed, justifying the Departmental supersession decision.

55. What the appellant, and her representative were informed, through the decision notice, and the statement of reasons, was the basis on which the appeal tribunal determined that she was not entitled to DLA. What they were not informed was the basis on which the appeal tribunal determined that there had been a relevant change, justifying the supersession, and from which effective date. The decision notice and statement of reasons collectively read as if they had been prepared in connection with a decision of a new or renewal claim.

56. It could well be the case that the appeal tribunal agreed with the detailed submissions, set out in the appeal submission, on all of the supersession issues – grounds, entitlement and effective date. If that is the case it would have been easy to make reference to those submissions and add further reasons as to the basis on which it so agreed.

57. DMS submits that it may have been preferable for the appeal tribunal to refer specifically to the grounds for supersession in the conclusion to its statement of reasons. It is not preferable but essential that it should do.

58. The failure of the appeal tribunal to make explicit its determination, findings and conclusions on the supersession issue means that it is in error of law, and it is for that reason that it is set aside.'

37. The application of the principles cited above to the present appeal must lead to a conclusion that there has been an error of law. The error is that the appeal tribunal has clearly failed to make explicit its determination, findings and conclusions on the supersession issue. In his written and oral submissions Mr Hinton on behalf of DMS has submitted that while the appeal tribunal does not specifically address the issue as to whether the decision-maker did have grounds to supersede, it is implicit from the reasons for the appeal tribunal's decision that it did so find. With respect to Mr Hinton, I cannot accept such a submission.
38. In my view, that appellant was entitled to know the basis upon which the appeal tribunal had concluded that something had changed, justifying a conclusion that there were grounds to supersede the earlier decision of the appeal tribunal. As I observed in C12/08-09(DLA), it may be the case the appeal tribunal agreed with the detailed arguments, set out in the appeal submission, on all of the supersession issues – grounds, entitlement and effective date. If that is the case it would have been easy to make reference to those submissions and add further reasons as to the basis on which it so agreed.
39. Additionally the appeal tribunal, having found that there had been a relevant change of circumstances, was under a duty to determine the effective date from which any supersession decision should take effect. Accordingly, the appeal tribunal was required to explain why the identified change and, by implication, the supersession took effect from an identified date. In the present case, the appeal tribunal failed to explain why it had adopted the dates relevant to its decision. Accordingly, even if the appeal tribunal was not in error by failing to address the issue of whether the decision-maker had grounds to supersede, it was also in error in failing to identify the effective date from which any supersession should take effect.

A further error of law

40. As was noted above the appeal tribunal, in disallowing the appeal, did not confirm the decision dated 12 October 2006 but substituted its own decision. This was to the effect that the appellant was not entitled to the mobility component of DLA from and including 12 October 2006, but was entitled to the lowest rate of the care component for a fixed period of three years, from 12 October 2006 to 11 October 2009.
41. Of course, the appeal tribunal is entitled to make an award of DLA for a fixed period. section 71(3) of the Social Security Contributions and Benefits (Northern Ireland) Act, as amended, provides that a 'person may be awarded either component for a fixed period or for an indefinite period'. An award may be fixed by an appeal tribunal:

(i) in the context of the exercise of its judicial discretion to make a decision less favourable to the appellant than the decision under appeal; or

(ii) in the context of an appeal against a decision not to award any entitlement to the benefit at all.

42. In making an award for a fixed period, the appeal tribunal is also entitled to disagree with the Department's alternative view that the award should be for an indefinite period. In the present case, in the decision under appeal, the Department had made an award for an indefinite period.
43. Where an adjudicating authority, including an appeal tribunal, is deciding to make an award of an entitlement to DLA (whichever component at whatever rate) is that authority obliged to give reasons for the restriction of the period of the award? The answer to that question has to be 'yes'.
44. There may be many good reasons for restricting entitlement to DLA for a fixed period. An appeal tribunal may have evidence that the basis upon which the appellant satisfies the conditions of entitlement to the benefit may change in the future. For example, there may be evidence that the appellant is likely to undergo a medical procedure or intervention which could well lead to an improvement in their medical condition. Additionally, the medically qualified panel member of the appeal tribunal's experience and knowledge of the particular disability giving rise to entitlement to the benefit may include a prognosis that the symptoms and effects of the disability are likely to improve in the future. As was observed by the then Chief Commissioner in R1/95(DLA), awards in respect of children are more likely to be for a fixed rather than an indefinite period, reflecting the fact that changes can and do occur in the lives of children as they reach significant milestones.
45. Equally there may be very good reasons for an appeal tribunal making an indefinite award of entitlement to DLA. All of the evidence before the appeal tribunal could lead to a conclusion that it is unlikely that basis upon which the appellant satisfies the conditions of entitlement to the benefit will change in the foreseeable future. The nature of certain disabling conditions is such that further improvement is unlikely.
46. The assessment on the length of an award of entitlement to DLA is an integral part of the decision-making process undertaken by the appeal tribunal. As it is part of the decision-making process, it should also be part of the reasoning process. That means that an appeal tribunal is under an obligation to give reasons for its conclusions on the length of an award, whether that is for a fixed or an indefinite period.
47. Support for that conclusion is to be found in the decisions of the Social Security Commissioners in C2/93(DLA) at paragraph 6, and C2/95(DLA) at paragraph 9, and C7/95(DLA) at paragraph 9. Despite certain reservations of the reasoning employed in R1/95(DLA), I agree with the overall conclusion of the then Chief Social Security Commissioner that some explanation, albeit in brief terms, should be given as to why an appeal tribunal has decided that an award should be for a fixed period which it has selected. Finally, Commissioner Williams, in the Great Britain case CDLA/2349/2008, found that an appeal tribunal was in error of law in failing to explain why it had made an award for the fixed period which it had chosen. At paragraph 5 of the decision, the Commissioner stated that:

'The choice of an award period … has to be a positive decision needing clear justification.'

48. In the present case, while the statement of reasons for the appeal tribunal's decision refers to the reasons why the appeal tribunal determined that an award of an entitlement to the lowest rate of the care component was appropriate, no reason was advanced as to why the appeal tribunal was of the view that the period of that award should be fixed.
49. Having found that the appeal tribunal was under a duty to provide reasons for limiting the award and having failed to address that issue, and explain, in its statement of reasons that it has so addressed it I find that the decision of the appeal tribunal is in error of law.

The applicant's other grounds for appealing

50. Having found that the appeal tribunal was in error of law in failing to address the issue of supersession and failing to provide reasons for its decision to make a fixed-period award of entitlement to DLA, I do not require to address the applicant's other grounds for making an application for leave to appeal to the Social Security Commissioner.
51. Nonetheless, Mrs Carty has raised two issues which have the potential to be of relevance to decision-making at appeal tribunal level in cases involving DLA and, for that reason, it is important that they are addressed in this decision.

The power to make a decision less favourable to the appellant

52. At the date of the appeal tribunal hearing, the appellant had an entitlement to an indefinite award of the higher rate of the mobility component and the lowest rate of the care component of DLA from and including 12 October 2006. As the appeal tribunal noted, in its statement of reasons, the appellant appealed because she 'obviously felt that she was entitled to a higher rate of care component …'
53. The effect of the appeal tribunal's decision, in terms of benefit entitlement was to remove entitlement to the mobility component of DLA and to reduce the period of award of entitlement to the lowest rate of the care component from an indefinite period to a fixed period of three years. Accordingly, the appeal tribunal made a decision which was less favourable to the appellant.
54. Article 13(8)(a) of the Social Security (Northern Ireland) Order 1998 provides that in deciding an appeal, an appeal tribunal need not consider any issue not raised by the appeal. That provision has been the subject of close scrutiny since its enactment and a number of principles have emerged. 'Need not' does not mean 'must not' and an appeal against a decision enables the whole of the decision to be reconsidered, even parts of it with which the appellant is not specifically concerned.
55. In R(IB)2/04, a Tribunal of Commissioners in Great Britain confirmed that an appeal tribunal is entitled to make a decision less favourable to the claimant than the decision under appeal. At paragraph 194 the Commissioners state:

'In particular, on an appeal against a refusal of a claimant's application for supersession of an award of disability living allowance (or against a supersession which was not as favourable as the claimant wished), an appeal tribunal is entitled to supersede (or revise) the original decision on a ground which leads to a decision less favourable to the claimant than the decision under appeal. However, unless the Secretary of State has in his submissions to the appeal tribunal raised the issue as to whether a less favourable decision should be made, the tribunal must consciously consider whether to exercise its discretion under section 12(8)(a) of the 1998 Act to take into account issues not raised by the appeal. This is a discretion to be exercised judicially, taking into account all relevant circumstances. If a statement of reasons is given, then reasons for the exercise of the discretion should be set out. In addition, the appeal tribunal must be satisfied that there has been compliance with the requirements of Article 6 of the European Convention on Human Rights and of natural justice.'

Earlier, at paragraph 94, they had stated:

'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.'

56. There has been further discussion as to how the discretion should be exercised and the extent to which an appellant should be 'warned' about the possibility of removal or lessening of an existing award.
57. In C48/03-04(DLA), the principles in R(IB)2/04 were considered by Commissioner Brown. At paragraph 22, she stated:

22. ... The decision in CIB/4751/2002 [R(IB)2/04] and others is authority for the proposition that a Tribunal is entitled to supersede the original decision on a ground which leads to a decision less favourable to the claimant than that original decision.

58. The Commissioner went on to cite the relevant paragraphs from the decision of the Tribunal of Commissioners, including paragraph 194, relating to the exercise of the discretion to make a decision less favourable.
59. In C24/07-08(DLA), Deputy Commissioner Parker stated, at paragraphs 19 to 22:

'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 (Decision Maker) 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.'

60. The most recent decision in respect of the power to make an award which is less favourable is the decision of a Commissioner in Great Britain in CDLA/884/2008. There, Commissioner Rowland stated, at paragraphs 8 to 11:

'8. An increasing number of appeals before Commissioners seem to be cases where a tribunal has made a decision less favourable to the claimant than the one the claimant was challenging before the tribunal. It is not surprising that appeals should be brought before Commissioners in such cases, particularly as the consequence of any such decision is that there will have been an overpayment, the recoverability of which will have been left undetermined by the tribunal. Tribunals need to be aware of the dangers of being both prosecutor and judge, one of which is the risk of making errors unprompted by the parties. Such errors are too common and are contributing significantly to the caseload of Commissioners. It is particularly unfortunate that two of the several errors made by the tribunal in the present case were on points in respect of which a Tribunal of Commissioners had relatively recently given clear guidance.

9. There are other risks in being both prosecutor and judge. The most obvious is that there can be a perception that the tribunal has prejudged the case. Of course a tribunal has an inquisitorial or investigative role but here it is noteworthy that the tribunal, having apparently formed the (not unreasonable) view on the papers that the claimant's entitlement to any disability living allowance was doubtful, started the proceedings by warning the claimant that his existing award was at risk and advising him that he could withdraw his appeal. The claimant having declined to withdraw his appeal, the tribunal then launched straight into the question of the claimant's entitlement to the mobility component, by questioning him about how he had got to the hearing, without first listening to what the claimant had to say about his needs for care which was the issue upon which he had brought his appeal. It is little wonder that the claimant says, in effect, that he formed an early view that the tribunal was more interested in its own agenda than in what he had to say.

10. Mr Spencer also points out that it is not necessarily enough for a tribunal to warn a claimant that his existing award is at risk and give him the opportunity to withdraw his appeal. He refers me to paragraph 94 of the Tribunal of Commissioners' decision, in which they said that it was necessary that "the claimant has sufficient notice of the tribunal's intention to consider superseding adversely to him to enable him properly to prepare his case." Here, the claimant had no advance notice of the possible case against him in respect of either the mobility component or the lowest rate of the care component and there is no indication that it was explained to him that the risk to his existing award was not merely theoretical. As the mobility component and the lowest rate of the care component had not been in issue, the grounds upon which they might be awarded were not mentioned in the Secretary of State's submission to the tribunal. Nor was there any reason of which I am aware as to why the claimant should have thought that any ability to walk further than 50 to 100 yards might be regarded as fatal to his entitlement to the mobility component. Even if, as the tribunal found, he had exaggerated his disability in his claim form, it does not necessarily follow that he should have realised that he was not fully entitled to disability living allowance at the rate awarded. A tribunal is in a difficult position. If it gives the claimant too robust a warning at the beginning of a hearing, it runs the risk of giving the impression of having prejudged the case. If it does not give such a robust warning, the warning may not adequately convey to the claimant the case he or she needs to consider resisting with the consequence that a decision not to withdraw the appeal, or not to ask for an adjournment, is not fully informed. This is a powerful reason for tribunals refraining from making decisions less favourable to claimants than the decisions being challenged, except in the most obvious cases (e.g., where the evidence is overwhelming or the facts are not in dispute and no element of judgment is involved or where the law has been misapplied by the Secretary of State) or after an appropriate adjournment. In such obvious cases, a failure expressly to state why a tribunal has considered a point not in issue between the parties will not necessarily render the tribunal's decision erroneous in point of law; in less obvious cases, the absence of a reason for considering the point may suggest that the discretion to do so has not been exercised properly.

11. If a tribunal does not consider the correctness of an award that is not directly in issue before it, it does not follow that it should do nothing if it has doubts about the award. The chairman is at liberty to draw the doubts to the Secretary of State's attention in the decision notice and can arrange for the parties to be sent a copy of the record of proceedings (including his or her note of evidence) without them having to request it. That would enable the Secretary of State to consider a supersession or revision and, in disability living allowance cases, would often avoid the possibility of there having been an overpayment, which is often a consequence of a tribunal considering the issue and which often worries claimants more than the mere cessation of entitlement.'

61. The principles which emerge from these cases can be summarised as follows:

(i) an appeal tribunal is entitled to make a decision less favourable to the claimant than the decision under appeal;

(ii) an appeal tribunal is entitled to supersede (or revise) the original decision on a ground which leads to a decision less favourable to the claimant than the decision under appeal;

(iii) a less favourable award may also be made by an appeal tribunal which is considering an appeal against a decision of the Department on a renewal claim;

(iv) the discretion of the appeal tribunal to make a less favourable decision is one to be exercised judicially, taking into account all relevant circumstances;

(v) if a statement of reasons for the appeal tribunal's decision is given, then the reasons for the exercise of the discretion should be set out;

(vi) the appeal tribunal must be satisfied that there has been compliance with the requirements of Article 6 of the European Convention on Human Rights and of natural justice;

(vii) compliance with the requirements of Article 6 includes the requirement that the appellant has had sufficient notice of the appeal tribunal's intention to consider making a decision which is less favourable, in order to enable the appellant properly to prepare his case;

(viii) the appellant is entitled to withdraw his appeal any time before the appeal tribunal's decision and this power may also be material to what Article 6 and the rules of natural justice demand;

(ix) appeal tribunals should refrain from making decisions less favourable to appellants than the decisions being challenged, except in the most obvious cases, or after an appropriate adjournment;

(x) the LQPM of the appeal tribunal is at liberty to draw any doubts about the validity of the decision to the Department's attention in the decision notice and can arrange for the parties to be sent a copy of the record of proceedings without them having to request it. That action would enable the Department to consider a supersession or revision (but see below).

62. The last principle was derived from the decision of Commissioner Rowland in CDLA/884/2008. With respect to the Commissioner, I do not agree with his conclusion. I would state the relevant principle to be:

(x) Where the appeal tribunal has any doubt concerning the validity of the decision under appeal, where that decision incorporates an existing award, it is under a duty to undertake a full investigation of the legitimacy of the existing award and determine whether that award is correct.

63. Why would I reformulate this principle? Elsewhere in R(IB)2/04, the Tribunal of Commissioners in Great Britain had noted that

'32. Appeal tribunals are part of the adjudication system which is designed to ensure that claimants receive neither more nor less than the amount of social security benefit to which they are properly entitled (as opposed to the benefits to which the parties may be contending that they are entitled). There is a legitimate public interest in ensuring such a result. The jurisdiction has thus been described as inquisitorial or investigatory (see, in particular, R(IS) 5/93 and the authorities cited in paragraph 14 of that Commissioner's decision). Such a jurisdiction generally extended to include a duty on the tribunal to consider and determine questions which are necessary to ascertain the claimant's proper entitlement, whether or not they have been raised by the parties to an appeal (R(SB) 2/83). In our judgment, in the light of the above and the reasons given by Mr Commissioner Jacobs in paragraphs 17 and 18 of decision CH/1229/2002, "raised by the appeal" in section 12(8)(a) is to be interpreted as meaning actually raised at or before the hearing by at least one of the parties to the proceedings. Section 12(8)(a) therefore does not limit the overall jurisdiction of an appeal tribunal, but grants it a discretion as to the extent to which it exercises this inquisitorial role. That discretion must be exercised judicially. An appeal tribunal is under a duty to consider whether or not to exercise the discretion where the circumstances could warrant it and would err in law by failing to do so or by failing to give adequate reasons for its conclusion. However, it will not err in law if, following a proper judicial exercise of its discretion, it decides not to consider issues not raised by the parties to the appeal.'

64. In my view, the duty on an appeal tribunal to ensure that a claimant 'receives neither more nor less than the amount of social security benefit to which they are properly entitled' includes a requirement to undertake a full investigation of the validity of an existing award and determine whether that award is correct. It is not sufficient, in my view, to leave the issue in abeyance, and undertake an artificial remission to the Department.
65. Where I do agree unequivocally with Commissioner Rowland is that the exercise of the judicial discretion to make a decision less favourable to the appellant and, with that discretion, the requirement to ensure that the appellant has had sufficient notice of the appeal tribunal's intention to consider making a decision which is less favourable, in order to enable the appellant properly to prepare his case, leaves the appeal tribunal in a difficult position. In this regard, I am of the view that it is regrettable that the requirement to ensure that the appellant has sufficient notice of the potential for the making of a less favourable award has been portrayed as the issue of a 'warning'. Warning is a negative noun. It suggests risk and invokes a defensive response.
66. Further, the practice appears to have emerged of the giving of a warning at the outset of an appeal tribunal hearing, when the appeal tribunal has formed the view that it may exercise its discretion to make an award which is less favourable to the appellant. Where the appellant is unrepresented the information that an existing award, which he or she may have thought could not be challenged, may be diminished or removed by the appeal tribunal may come as a considerable surprise. This is despite the fact that the appeal submissions prepared by the Department, and to which the appellant has had access in advance, as in the instant case, makes reference to that possibility. As Commissioner Rowland has observed, there is a considerable danger, when using the language of warning, at the outset of an appeal tribunal hearing, of giving the impression of having prejudged the case.
67. To my mind, it is much more satisfactory for an appeal tribunal, when it has formed the view that it may exercise its discretion to make an award which is less favourable to the appellant, to begin by explaining to the appellant that the appeal tribunal is under a duty to consider all of the evidence which is before it and to ensure that the decision under appeal to it is correct. Thereafter, the appeal tribunal should inform the appellant of the appeal tribunal's powers and the appellant's options, in light of those powers.
68. What are the appeal tribunal's powers? They are:

(i) to make a decision which is more favourable to the appellant (which in the vast majority of cases is what the appellant wants);

(ii) to confirm the decision of the Department with respect to the existing award; and

(iii) to make a decision which is less favourable to the appellant.

69. The circumstances in which the appeal tribunal explains its powers will be different in each case. Where the appellant is represented by an experienced representative, with existing knowledge of the appeal tribunal's powers, the explanation may not require more than a simple description. Where the appellant is unrepresented the explanation may need to be more complete, may require confirmation that the appellant understands what those powers are and, where necessary, may also require an additional explanation of the appellant's right to seek a brief adjournment to consider the implications of what has been described, or a longer adjournment to seek further legal advice in light of that description.
70. The judicial discretion to make a decision which is less favourable to the appellant takes on a greater significance when the appeal is being determined on the papers alone. As was observed by the Deputy Commissioner in C24/07-08(DLA), the description of the appeal tribunal's powers will have to be accurate and detailed. In a case determined on the papers alone, where the appeal tribunal is considering exercising its judicial discretion to make a decision which is less favourable to the appellant, it is difficult to see how an appeal tribunal could be satisfied that an appellant has had sufficient notice of the appeal tribunal's intention to consider making a decision which is less favourable, without adjourning the appeal, and providing an appropriate description of the appeal tribunal's powers and the appellant's options in light of those powers.
71. What are the appellant's options, in light of the appeal tribunal's powers? They are:

(i) to continue with the appeal tribunal hearing;

(ii) to withdraw the appeal;

(iii) as noted above and, as appropriate, to seek a brief adjournment to consider the implications of what has been described, or a longer adjournment to seek further legal advice in light of that description.

72. The option to withdraw derives from regulation 40 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended. It is important to note that the right to withdraw includes the right to withdraw at an oral hearing, and before the appeal is determined. In essence that means that the appellant could choose to continue with the appeal tribunal hearing, thereby exercising option (i) above and then during the course of that hearing revert to option (ii). Any explanation of the appellant's options should include an explanation that there is the possibility of the withdrawal of an appeal at any time during the course of the appeal tribunal hearing. As with the explanation of the appeal tribunal's powers, the explanation should be in appropriate terms and language, and the appeal tribunal should be satisfied that the appellant understands the relevance and context of the options available to him. There should not be any hint of pressure on the appellant to choose option (ii). The appeal tribunal would be justified, however, in drawing the appellant's attention to the fact that a comprehensive explanation of the powers and options has been given, and that a failure to exercise the most appropriate option would not form the basis for a set aside of the decision nor, probably, for an appeal to a Social Security Commissioner.
73. It is important that a record of the explanations given by the appeal tribunal, in respect of its powers and the appellant's options is entered into the record of proceedings for the appeal tribunal's hearing. As the appellate authorities on the issue have confirmed, where a statement of reasons for the appeal tribunal's decision is requested and given, then the reasons for the exercise of the discretion to make a decision which is less favourable should be set out.
74. While the procedure which is being recommended may seem detailed and cumbersome, it is submitted that it should not take an appeal tribunal long to set out its powers and options, nor to record the operation of the procedure in the relevant appeal tribunal documentation.
75. Should there be an explanation of the appeal tribunal's powers, and the appellant's options, in every appeal where the decision is one which includes an award? The reasoning of the Tribunal of Commissioners in Great Britain in R(IB)2/04 would suggest that there is no such requirement in every case, but that it should be limited to those cases where there is sufficient in the evidence for the appeal tribunal to consider exercising its judicial discretion. To my mind, however, there are compelling reasons for recommending as safest and best practice, the giving of an explanation in each case where there is an existing award.
76. Firstly, the description of the appeal tribunal's general powers and an appellant's options in all such cases is less likely to lead an appellant to think that his own case has been pre-judged, avoiding the danger posed by Commissioner Rowland. Secondly, even in a case where the appeal tribunal has, at the outset, determined that there is no evidential basis for it to consider exercising its discretion to make a decision which is less favourable, and therefore has not provided any explanation of its powers, that position might change during the course of the appeal tribunal hearing, as evidence emerges. In such a case, the sudden alert to the powers of the appeal tribunal might have the same effect as the current, unsatisfactory issue of a warning. It is better, in my view, to have the issue dealt with at the start, for the avoidance of all doubt.
77. Accordingly, in my view, it is safest and best practice for an appeal tribunal in each case where the decision under appeal incorporates an existing award:

(i) to explain to the appellant that the appeal tribunal is under a duty to consider all of the evidence which is before it, and to ensure that the decision under appeal to it is correct;

(ii) to outline to the appellant the powers available to the appeal tribunal which are:

to make a decision which is more favourable to the appellant;

to confirm the decision of the Department with respect to the existing award; and

to make a decision which is less favourable to the appellant.

(iii) to outline to the appellant, the options available to him, which are:

to continue with the appeal tribunal hearing;

to withdraw the appeal at any stage prior to its determination;

to seek a brief adjournment to consider the implications of what has been described, or a longer adjournment to seek further legal advice in light of that description.

(iv) to ensure that all explanations are provided in appropriate terms and language, and to be satisfied that the appellant understands the relevance and context of the powers of the appeal tribunal and the options available to him;

(v) to ensure that a record of the explanations given by the appeal tribunal, in respect of its powers and the appellant's options is entered into the record of proceedings for the appeal tribunal's hearing;

(vi) to ensure that where a statement of reasons for the appeal tribunal's decision is requested and given that the reasons for the exercise of the discretion to make a decision which is less favourable are set out;

(vii) to ensure that in a case determined on the papers alone and, where the appeal tribunal is considering exercising its judicial discretion to make a decision which is less favourable to the appellant, that it is satisfied that an appellant has had sufficient notice of the appeal tribunal's intention to consider making a decision which is less favourable, which will be likely to involve adjourning the appeal, and providing an appropriate description of the appeal tribunal's powers and the appellant's options in light of those powers.

78. I am of the view, incidentally, that the explanation given by the LQPM in the present case, as recorded in the record of proceedings and in the statement of reasons for the appeal tribunal's decision more than meets the standards which I have set out above. While there is no formal indication, as submitted by Mrs Carty, that the appellant had the option to withdraw her appeal at any time up until it was determined, I am wholly satisfied that there was an adequate explanation of the appeal tribunal's powers, and the appellant's options, for the appellant to make a decision on proceeding with the appeal.

The availability of GP records in appeal tribunal hearings

79. In the third ground for applying for leave to appeal to the Social Security Commissioner Mrs Carty challenged the adequacy of the reasons for the appeal tribunal's decision and, as part of that challenge, questioned the assessment of the evidence contained within GP records which were before the appeal tribunal. The record of proceedings for the appeal tribunal hearing records that the appeal tribunal had before it 'General Practitioner notes and records'. As part of the documentation prepared for the oral hearing before me, Mrs Carty has supplied a large bundle of medical records, which, she submits, were the GP records which were before the appeal tribunal.
80. My understanding is that in appeals involving DLA in Northern Ireland, there is a procedure which results in the GP records relating to the appellant being made available to the appeal tribunal in the majority of cases. The procedure is consent based and relies on the agreement of both the appellant and the GP to the release of the records for consideration by the parties to the proceedings and the appeal tribunal. The withholding of consent by either the appellant or the GP will mean that the records will not be released. Of course, GP records may be made available in appeals relating to other social security benefits, although such availability is not routine.
81. My understanding is also that the 'records' which are made available to the appeal tribunal may be in a variety of formats. What the appeal tribunal might see is the complete 'paper' file relating to the appellant. Alternatively, the GP surgery may make available screen print copies of specific extracts from the records, for a particular period in time.
82. Once before the appeal tribunal, the content of the GP records form part of the evidence which is before the appeal tribunal. Once before the appeal tribunal, the evidence contained within the GP records must be weighed and assessed. Further, the appeal tribunal is under a duty to give a sufficient explanation of its assessment of the evidence, explaining why it took the particular view of the evidence which it did. Any conflict in the evidence before the appeal tribunal should be clearly resolved and explained.
83. At the oral hearing of the appeal before me, in relation to this issue, I began by indicating that I could not be sure that the copies of the GP records which were submitted by Mrs Carty were the same as those which were before the appeal tribunal.
84. I also reminded Mrs Carty that it is important to note that the assessment of evidence is a matter for the appeal tribunal, and a Social Security Commissioner must be wary of interfering with the conclusions of an appeal tribunal based on its evidential assessment, a point which she readily accepted. Further, I indicated that an appeal to the Social Security Commissioner should not amount to a further submission on factual issues rather than questions of law. It is clear that an appeal on a question of law should not be permitted to become a re-hearing or further assessment of the evidence, when that assessment has already been fully and thoroughly undertaken. Once again, Mrs Carty accepted that point.
85. Nonetheless, I also explained that in an appeal to the Social Security Commissioner it is permissible for an applicant or appellant to argue that there has been a failure by the appeal tribunal to give a sufficient explanation of its assessment of the evidence, explaining why it took the particular view of the evidence which it did. Further, it can be argued that there has been a failure to identify, resolve and explain any conflict in the evidence before the appeal tribunal.
86. Where submissions are made in relation to the assessment of evidence before the appeal tribunal it is essential that the Social Security Commissioner has access to the evidence in contention. The difficulty is that in applications or appeals involving DLA, the Social Security Commissioners do not have the same routine access to GP records as do appeal tribunals.
87. For the most part, this does not cause problems for the Social Security Commissioners. Not every application or appeal involves a challenge to the appeal tribunal's assessment of the medical evidence, including the GP records. Further, even where there is such a challenge, it is rarely to the generality of the content of the records but is usually more focused on a specific report or examination.
88. Nonetheless, I am of the view that there are important considerations for the parties to the proceedings, and the appeal tribunal, in relation to the use of GP records in DLA cases. It will be safest and best practice for the parties to the proceedings to make reference to specific aspects of the GP records in submissions to the appeal tribunal. For example, a representative might indicate that reliance is placed on a report dated [], from Mr [], consultant psychiatrist at [] hospital. In turn, the appeal tribunal should note the specificity of the medical evidence to which reference is being made, in the record of proceedings for the appeal tribunal hearing. In the statement of reasons for the appeal tribunal's decision, reference should be made to specific medical reports, or other entries on which the appeal tribunal has relied or which it has rejected. For example, the reasons might refer to an attendance at the Accident and Emergency Unit of [] hospital on [] date, during which [] was noted.
89. Detailed recordings of submissions in respect of the evidence contained in the GP records, and precise references in statements of reasons will ensure that the Social Security Commissioner to whom any subsequent application or appeal is made can be certain as to the specificity of the evidence which was in contention before the appeal tribunal.

Disposal

90. The decision of the appeal tribunal dated 7 November 2007 is in error of law. The error of law identified will be explained in more detail below.
91. 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.
92. 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.
93. As was noted above, the Department has made another decision in connection with the appellant's entitlement to DLA, making an award of the lowest rate of the care component and the higher rate of the mobility component of DLA from 1 February 2008 to 31 January 2010. At the oral hearing of the appeal, Mrs Carty, for the appellant, submitted that if her appeal to the Social Security Commissioner was successful, then it would be likely that she would withdraw any appeal remitted to a differently constituted appeal tribunal. That is, of course, a matter which is entirely for the appellant, in line with any advice offered by her representative.

(signed) K Mullan

Commissioner

17 June 2009