Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2009] NISSCSC C16_09_10(DLA) (6 October 2009)

Decision No: C16/09-10(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 13 October 2008
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal, leave having been granted by a Commissioner, against the decision of the tribunal affirming the decision of the decision-maker on a renewal claim to the effect that the claimant is not entitled to either component of disability living allowance (DLA) from and including 18 May 2008.
2. A renewal claim, in respect of the period from 18 May 2008, was received in the Department on 15 January 2008, indicating that the claimant had severe upper back pain and neck pain, nerve damage, degenerative disc disease, severe depression and anxiety as well and numbness in fingers and legs. On 2 February 2008 it was decided that the claimant's claim should be disallowed from and including 18 May 2008. A late appeal was received but a decision-maker decided on 23 June 2008 to admit the appeal for hearing. On 13 October 2008 the tribunal unanimously affirmed the decision to deny the allowance.
3. Leave to appeal to a Commissioner was refused by the legally qualified member on 3 January 2009. However, a Commissioner granted leave to appeal for the following reasons:

"It is arguable that the decision was wrong in law, because –

(i) it failed to deal with the issue of alleged missing medical evidence;

(ii) it failed to consider whether an adjournment of the proceedings was appropriate to enable the claimant to obtain the alleged missing evidence."

4. The claimant is represented by Mr Larry McLarnon while Mr Michael Collins, of Decision Making Services, has represented the Department.
5. 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.
6. Mr McLarnon has submitted that the tribunal erred in law as it did not consider fully all of the medical evidence available to it. Mr McLarnon, who represented the claimant at the original hearing before the tribunal, did not develop this point in correspondence.
7. However, Mr Collins supports Mr McLarnon's basic submission and, in particular, has referred me to correspondence from the claimant's wife which was available to the tribunal and which complements her husband's grounds of appeal to a Commissioner. In this correspondence she has referred to reports from Dr McCullough of Tyrone Hospital not being included in the medical records provided by the claimant's previous general practitioner (GP). Mr Collins has also pointed out that the record of proceedings before the tribunal demonstrates that the tribunal considered the tribunal papers and the GP's notes. In addition the record of proceedings specifically records under the heading "Mobility" that as part of the claimant's oral evidence before the tribunal, the following is noted:

"Dr Niall McCullough - saw him for over 1 year (2006). Referred by Dr Chada. His notes not in the notes and records."

Mr Collins accepts that the claimant raised concerns about medical evidence not being available to the tribunal and also that he was placing weight on this 'missing' evidence. He also submits that the tribunal ought to have dealt with the claimant's concerns in all the circumstances.

8. Mr Collins points out that the tribunal might well have been content to proceed with the appeal on the basis of the evidence before it but, if it decided so to do, it ought to have stated that it was so doing. Accordingly, Mr Collins has submitted to me that the failure to deal with this issue and failure to consider an adjournment of the proceedings to enable the claimant to obtain the 'missing' evidence renders the decision erroneous in law.
9. In my view Mr Collins is correct in his submissions. While I have sympathy for the tribunal in all the circumstances, I conclude that the claimant has been unduly prejudiced by the tribunal's failure to investigate the assertion that the claimant saw a psychiatrist for a year in 2006 but that the notes confirming this fact were missing. The failure is all the more relevant in all the circumstances as the tribunal in its reasoning specifically relied on the lack of medical attention to the claimant when coming to its conclusion. The one matter that has concerned me is that the medical evidence has related to a period a considerable time prior to the date of the decision but it seems to me that the existence of the alleged relevant notes in relation to attending a psychiatrist is very likely to have ongoing relevance to the issues in the case, including the issue of credibility.
10. Accordingly I allow the appeal, set aside the decision of the tribunal and refer the matter back to a differently constituted tribunal for a rehearing. This fresh tribunal will have available to it the medical records that were available to the previous tribunal. In the circumstances it is important, however, that the claimant takes steps to ensure that any records of the claimant's contact with Dr Niall McCullough of the South Tyrone Hospital, are made available to the tribunal via the claimant's new GP who is, apparently, Dr O'Donnell from Coalisland.

(signed): J A H Martin QC

Chief Commissioner

6 October 2009