Northern Ireland - Social Security and Child Support Commissioners' Decisions

 


[2009] NISSCSC C17_08_09(DLA) (22 May 2009)

Decision No: C17/08-09(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 6 February 2007
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. The decision of the appeal tribunal dated 6 February 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. 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. Additionally, 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. It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of his 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

5. The original decision on appeal to the appeal tribunal was a decision that the appellant was not entitled to DLA from and including 25 October 2006. The disallowance was on a renewal claim.
6. There was an oral hearing of the appeal, on 6 February 2007, at which the appellant was present, and was not formally represented. The appellant gave oral evidence, as did his partner. The appeal tribunal disallowed the appeal, confirming the decision to disallow entitlement to any component of DLA.
7. Copies of the record of proceedings and statement of reasons for the appeal tribunal's decision were issued to the appellant on 5 April 2007.
8. On 4 May 2007, an application for leave to appeal to the Social Security Commissioner was received in the offices of The Appeals Service. The application was made on behalf of the appellant by the Law Centre (Londonderry), now his authorised representative.
9. The initial grounds on which leave to appeal was sought were that the appeal tribunal erred in law by:

(i) failing to deal with the issue that the appellant lacked motivation to prepare a cooked main meal for himself;

(ii) failing to give reasons for rejecting the appellant's evidence, both oral and written that he required attention in connection with his bodily functions such argument including a submission that the appeal tribunal misinterpreted relevant medical evidence.

10. Leave to appeal was refused by the legally qualified panel member (LQPM) on 9 May 2007. There was further confusion concerning the issue of the notice of refusal of leave to appeal.

Proceedings before the Social Security Commissioner

11. A further application for leave to appeal to the Social Security Commissioner was made to the Commissioners' Office on 30 October 2007. In that application the grounds for appealing, which had been before the LQPM in the initial application, were repeated.
12. On 21 February 2008, the application for leave to appeal was accepted for special reasons by the Chief Social Security Commissioner.
13. On 21 March 2008 additional submissions were received. In addition to the grounds submitted in the original letter of appeal, the appellant's representative had added two further grounds:

(i) the tribunal did not give adequate reasons for finding that the appellant did not require continual supervision from another person to prevent substantial danger to himself; and

(ii) the tribunal failed in its inquisitorial function.

14. The basis of ground (iv) was that the appellant had mentioned in his renewal claim form to DLA that he suffered from panic attacks when walking out of doors. The representative submitted that the issue of panic attacks was not raised with the appellant during the course of a hearing at which he was unrepresented. The appeal tribunal, in its statement of reasons, indicated that 'The Tribunal finds it significant that there was no reference to panic attacks in the Apellant's [sic] appeal document, nor in his oral evidence to the Tribunal'. The representative submitted that irrespective of whether the issue was raised in the letter of appeal, or at the appeal tribunal hearing, the appeal tribunal had an inquisitorial duty as it was mentioned in the renewal claim form and, accordingly, was part of the evidence before the appeal tribunal.
15. Decision Making Services (DMS) were asked for their observations and a lengthy document, dated 24 April 2008, was eventually received. In response, DMS:

(a) reject the submission concerning motivation and misinterpretation of the available medical evidence;

(b) reject the submission that the appeal tribunal did not adequately explain its reasons in connection with continual supervision;

(c) indicate that if the reasons as a whole are read and, in context, it is clear that the appeal tribunal had considered the issue of panic attacks.

16. The DMS observations were shared with the appellant's representative on 29 April 2009. In a reply, dated 29 May 2008, the decision of the Court of Appeal in Mongan v Department for Social Development ([2005] NICA 16 (13 April 2005)) was cited in support of the earlier submission on the inquisitorial function. The representative made a supplementary point on the misinterpretation of the medical evidence point.
17. On 10 October 2008, I granted leave to appeal on the following basis:

'Leave to appeal is granted as an arguable issue arises as to the extent to which the appeal tribunal exercised its inquisitorial function, in line with the principles in Mongan v Department for Social Development.'

18. I directed an oral hearing of the appeal which took place on 10 March 2009. At the oral hearing, the appellant was represented by Mr Breslin from the Law Centre (Northern Ireland), and the Department was represented by Mr Kirk of the DMS section. Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions.

Errors of law

19. 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.
20. 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

21. The conditions of entitlement to the care component of DLA are to be found in Section 72(1) of the Social Security Contributions and Benefits (Northern Ireland) Act, as amended. Section 72(1)(a) provides that:

'… a person shall be entitled to the care component of a disability living allowance for any period throughout which –

(a) he is so severely disabled physically or mentally that –

(i) he requires in connection with his bodily functions attention from another person for a significant portion of the day (whether during a single period or a number of periods); or

(ii) he cannot prepare a cooked main meal for himself if he has the ingredients; or

(b) he is so severely disabled physically or mentally that, by day, he requires from another person -

(i) frequent attention throughout the day in connection with his bodily functions; or

(ii) continual supervision throughout the day in order to avoid substantial danger to himself or others; or

(c) he is so severely disabled physically or mentally that, at night, -

(i) he requires from another person prolonged or repeated attention in connection with his bodily functions; or

(ii) in order to avoid substantial danger to himself or others he requires another person to be awake for a prolonged period or at frequent intervals for the purpose of watching over him.

22. It is now well established that 'attention' for the purposes of the above provisions can include encouragement, motivation and support. In R(DLA) 1/07, a Tribunal of Commissioners in Great Britain, had the following to say on the issue, at paragraphs 18-27:

'Prompting and motivation

18. Before us, the Secretary of State conceded that, as submitted on behalf of the claimant, prompting and motivating are capable of constituting attention in connection with an impaired bodily function within the meaning of section 72(a)(i) (and also section 72(c)(i), which is in substantively the same terms). We consider that concession properly made.

19. "Attention" has in this context been the subject of substantial consideration by the higher courts. In Mallinson (at page 637B), Lord Woolf approved and strongly commended the following from the judgment of Dunn LJ in Packer's Case:

"The word 'attention' itself indicates something more than personal service, something involving care, consideration and vigilance for the person being attended. The very word suggests a service of a close and intimate nature. And the phrase 'attention … in connection with … bodily functions' involves to my mind some service involving personal contact carried out in the presence of the disabled person."

Some comment on this passage might be helpful.

20. First, in addition to this passage from Dunn LJ's judgment in Packer's Case, Lord Woolf also referred to Moran v Secretary of State for Social Services (reported as an Appendix to R(A) 1/88), in which Nicholls LJ characterised "attention" as denoting "a concept of some personal service of an active nature", as opposed to supervision which is a state of passivity coupled with a readiness to intervene. This characteristic – activeness – therefore has to be added to "care, consideration and vigilance".

21. Second, Lord Woolf (at page 637B) added one important caveat to the comments of Dunn LJ, namely that the "contact" need not be physical contact; and he held, on the facts of the case before him, that contact by spoken word can amount to "attention in connection with bodily functions". However, this was no more than a marker that simply talking to someone is capable of amounting to such attention. Whether it has the requisite proximity (in terms of "care, consideration and vigilance", and activeness) will depend upon the facts of the specific case.

22. Third, in Mallinson Lord Woolf gave the majority judgment. In Cockburn, Lord Slynn approved and followed Lord Woolf's approach. In respect of both of the individual cases before him, Lord Slynn said that the relevant test was whether what was done had "the active, close, caring, personal qualities referred to by Lord Woolf" (at pages 814C–D and 818E). This test – does the service provided have sufficient active, close, caring and personal characteristics to constitute "attention" – has consequently had the further endorsement of the House of Lords.

23. Fourth, when Dunn LJ referred to attention conveying "more than personal service", he appears not to have been setting a specifically high level for the "personal" nature of the relevant service. We agree with Mr Collins, that in the context of that case he appears to have been saying simply that it means more than personal domestic service such as cooking and cleaning. It is noteworthy that, towards the end of his judgment (at page 1026H), O'Connor LJ found that "cooking is too remote from the proximity that 'attention … in connection with [a] bodily function' necessarily requires".

24. Indeed, we do not consider it helpful to describe the hurdle to be overcome by a claimant in this regard in terms of being "high" or indeed "low". Lord Bridge in Woodling (at page 352) said that "a high degree of physical intimacy between the person giving and the person receiving the attention" is required; but this has not been endorsed subsequently as setting a peculiarly high hurdle, and we do not consider it to be anymore than an indication that a real degree of proximity will be required. We do not consider that Dunn LJ in Packer's Case suggested more.

25. Where the line should be drawn is a matter of fact and degree for decision-makers and tribunals to decide, on the approach advocated by Mallinson and Cockburn. However, the cases give some guidance as to the proximity that will be sufficient. In Mallinson itself, Lord Woolf found that guiding a blind person has the requisite "active and the close, caring, personal qualities" to amount to attention for the purposes of section 72(1)(a) (at page 639C). In Cockburn (at page 814), in relation to Miss Fairey's case, Lord Slynn considered that "providing interpretation by sign language (which involves personal communication between two people even if the message is at the same time by the making of signs communicated to others) has sufficiently "the active and the close, caring, personal qualities referred to in the authorities (per Lord Woolf in the Mallinson case [at page 639]) as to constitute attention for the purposes of the Act. The provision of an 'interpreter' to use sign language is therefore capable of providing 'attention' within the meaning of the section." The same has been held to apply to the use of an interpreter for a prelingually deaf claimant in comprehending and responding to written documents (R(A) 1/03).

26. On the basis of the approach advocated in Mallinson and Cockburn (and the illustrations of application of that approach in the cases to which we have referred), and the proposition that "bodily functions" includes the functions of the brain (see paragraphs 13–17 above), as was common ground before us, we consider that prompting and motivating are capable of constituting attention in connection with an impaired bodily function.

27. Simple apathy of course will not entitle a claimant to DLA. Although we would not have phrased it in the same terms, we believe that this is what Mrs Commissioner Parker meant when she said in an earlier appeal relating to this same claimant, CSDLA/190/2004: "It must of course be the claimant's mental disablement which causes the lack of motivation and not, for example, a character defect." (...). But where a claimant suffers from a condition which has as a component a lack of motivation which exhortation from another is able to overcome, then we agree with Mrs Commissioner Parker (at paragraph 15 of that decision) that this is capable of constituting attention with bodily functions. Although any case will depend upon its own facts – and, where a child is the claimant, the provisions of section 72(6)(ii) will apply, so that only if the child's requirements are substantially in excess of the normal requirements of a child of his or her age will the conditions of section 72(1)(a)(ii) be satisfied – we are firmly of the view that such services are at least capable as a matter of law of having the requisite active, close, caring and personal characteristics to amount to attention within the meaning of section 72.'

23. The conclusions of the Tribunal of Commissioners in R(DLA) 1/07 reflects the jurisprudence of the Social Security Commissioners in this jurisdiction. In C46/96(DLA) the then Chief Commissioner for Northern Ireland stated:

'In the light of the views expressed in the decisions to which … has referred, it must be accepted that "encouragement" to perform relevant functions may constitute attention for the purposes of establishing entitlement to disability living allowance. I would point out, however, that the mere proof of the provision of such encouragement of the stipulated duration or frequency, will not, in itself, be sufficient to establish entitlement to the care component. As well as being related to physical or mental disability the attention in question must in all cases be "reasonably required"; and it seems to me that this matter is of particular importance where attention by way of "encouragement" is concerned. In my view such attention ought not to be accepted as being reasonably required unless it is established that, without it, the claimant would probably not perform the bodily function in question, and that, in consequence, his or her general health or well-being would to some significant extent be adversely affected.'

24. The decisions to which the Chief Commissioner was referred are Mallinson v Secretary of State for Social Security ([1994] 2 AER 295), C44/96(DLA), CDLA/895/94, CDLA/494/94 and CDLA/1414/95.
25. The decision in C46/96(DLA) was considered by the current Chief Commissioner for Northern Ireland in C12/99(DLA). The Chief Commissioner stated:

' … the record of the Tribunal's decision gives no indication that the Tribunal was aware that a requirement for reassurance, encouragement or motivation can be accepted as attention in connection with bodily functions … I consider that it is appropriate to quote the former Chief Commissioner in his decision C46/96(DLA) … at paragraph 5 where he emphasised that "encouragement" is only relevant if it is not only given but also "reasonably required".'

26. The decision in C46/96(DLA) was also consider by Commissioner Brown in C10/00-01(DLA). After deciding that the appeal tribunal erred in not considering the issue of encouragement, she stated:

'In this connection the Tribunal should pay particular attention to decision C46/96(DLA) … It is only attention in connection with bodily functions which can qualify. General unfocused encouragement in the form of "pep talks" etc. is unlikely to fall within this category. As the Chief Commissioner said encouragement may constitute attention of the relevant type but it does not necessarily do so. It depends on the question of whether or not the encouragement is attention in connection with bodily functions and whether it is reasonably required. What is involved in the encouragement is, therefore, likely to need detailed exploration to establish if it does constitute attention in connection with bodily functions.'

27. In the appellant's renewal claim to DLA, which was before the appeal tribunal, the appellant indicated a requirement for motivation to attend to his bodily functions and in respect of the preparation of a cooked main meal for himself. At page 9 of the form, the appellant states that he 'just can't get motivated' and that his partner tries 'to motivate me to get up and do things.' At page 15 he states that 'I just can't get motivated.'
28. The appeal tribunal also had before it a report from the appellant's general practitioner (GP), dated 29 August 2006. This report is a Departmental Factual Report, commonly sent to the GPs of those claiming DLA. It is in the form of a series of questions to which the GP may or may not give a response. Question 7 asks the GP the following:

'In your opinion, is the patient's mental state such that they require prompting, motivation or encouragement to prevent the risk of self-neglect or self-harm? If so, please give details below. (Only include those tasks, which cannot be performed without such prompting, motivation or encouragement.)'

29. Quite clearly, this question is directed at adducing evidence as to whether a claimant has a reasonable requirement for attention for the purposes of the relevant legislative provisions relating to the care component of DLA in the form of encouragement, motivation and support.
30. In the present case, the appellant's GP answered Question 7 as follows:

'Over recent years this [] been the case but therapy & family support have helped.'

31. The answers on the relevant Factual Report are in hand-writing. It is not immediately clear whether the word which should be included at [] is 'has' or 'had'.
32. Quite clearly, the Department assumed that the relevant word was 'had'. At page 5 of the original appeal submission, which was also before the appeal tribunal, the appeals writer indicates:

'In the medical report dated 29.08.06, [Dr Mc…] stated that over recent years (the claimant) would have required encouragement with self-care, however they indicated that this was no longer the case, stating that family support and therapy have helped.'

33. How did the appeal tribunal deal with the issue of encouragement or motivation to attend to bodily functions?
34. In respect of the evidence given on the day of the appeal tribunal hearing, the record of proceedings is in an unusual format in that it amounts to a narrative rather than a record of the oral evidence which was given and the questions which were asked. Nonetheless, there is no reference in the record of proceedings to any further evidence concerning encouragement or motivation.
35. In the statement of reasons for the appeal tribunal's decision in respect of the care component of DLA, it was noted that the appellant had stated in the renewal claim form that he had no motivation to prepare a cooked main meal. Additionally, the following was recorded, in respect of the medical report from the appellant's GP, dated 29 August 2006:

'For the purposes of assessing the Appellant's care capabilities, the report of [Dr Mc…], dated 29.08.2006 is very significant … Of greatest significance, however, is the clear, unambiguous statement from his General Practitioner that the Appellant does not require prompting, motivation of [sic] encouragement to prevent the risk of self-harm or self-neglect. The General Practitioner stated that such encouragement would have been required in the past but that therapy and family support had now helped.'

36. With the greatest respect to the appeal tribunal, there is no 'clear, unambiguous statement', within the relevant Factual Report, from the appellant's GP that the Appellant 'does not require prompting, motivation or encouragement to prevent the risk of self-harm or self-neglect'. It is not clear whether the GP was referring to a problem which the appellant 'had' or 'has', the relevant hand-writing being sufficiently obscure. Further, the appeal tribunal did not undertake any further exploration with the appellant, and/or his partner, through oral evidence at the appeal tribunal hearing, in order to seek clarification of what was the actual position.
37. Why did the appeal tribunal form such a definite view on the statement contained within the Factual Report? The statement of reasons for the appeal tribunal's decision in respect of the mobility component of DLA is drafted in very similar terms to that for the care component. In that statement of reasons, it is noted that:

'For the purposes of assessing the Appellant's mobility capabilities, the report of [Dr Mc…], dated 29.08.2006 is very significant … Of greatest significance, however, is the clear, unambiguous statement from his General Practitioner that he is not aware of the Appellant requiring any attention and/or supervision (which can include reassurance, encouragement or cajoling) from another person to enable the Appellant to get around in unfamiliar surroundings most of the time.'

In the Factual Report, there is an additional Question 8, which reads as follows:

'Are you aware of any attention and/or supervision (which can include reassurance, encouragement or cajoling) required from another person to enable the patient to get around in unfamiliar surroundings, most of the time?'

38. The general purpose of this question is to adduce evidence as to whether a claimant satisfies the legislative provisions relating to the lower rate of the mobility component of DLA.
39. In the present case, the appellant's GP answered Question 8 as follows:

'No'

40. I agree that the answer in respect of Question 8 is clear and unambiguous in respect to the mobility component of DLA.
41. I conclude, however, that in relation to the care component of DLA, the appellant, through his renewal claim form had raised the specific issue of a requirement for motivation, encouragement or prompting to attend to his bodily functions and/or prepare a cooked main meal for himself. The appeal tribunal was required to deal with that issue, in its determination of the appeal and in the provision of an explanation, through the statement of reasons of why it rejected the appellant's claims to have such a requirement.
42. As was noted above, there is no reference in the record of proceedings to any further evidence concerning encouragement or motivation. Further, the appeal tribunal's assessment of the evidence of the appellant's GP is unsound. It cannot be concluded that the evidence of the appellant's GP, with respect to any requirement which the appellant might have for motivation, encouragement or prompting to attend to his bodily functions and/or prepare a cooked main meal for himself is, as the appeal tribunal decided, clear and unambiguous.
43. What could the appeal tribunal have done in respect of the available evidence with respect to the issue of motivation? Firstly, it could and should have explored the issue in more detail with the appellant himself, and with the appellant's partner, at the oral hearing of the appeal.
44. The appellant was present at the oral hearing but was not formally represented. The record of proceedings notes that:

'The Appellant asked whether the Tribunal had a report from his psychiatrist. The Chairman noted that the Appellant had asked the Department, in his appeal document, to speak to his psychiatrist. He pointed out that the Tribunal was entirely independent of the Department, but it appeared that the Department had not sought a report from his psychiatrist. The Chairman asked whether the Appellant wished to adduce a report from his psychiatrist, while pointing out that the Tribunal had the entirety of his General Practitioner records before it and that the Appellant had had an opportunity to peruse those records. The Appellant stated that he wished to proceed with the hearing of his appeal. [The Tribunal presumes that the Appellant's reference to a 'psychiatrist' is, in fact, the clinical psychologist referred to by his General Practitioner in his letter dated 16.10.2006].'

45. At the oral hearing of the appeal before me, Mr Breslin submitted that the appeal tribunal should have considered, particularly in light of the ambiguity surrounding the evidence relating to motivation, to have adjourned to obtain an additional medical report. Mr Breslin referred to the fact that the appellant was without representation before the appeal tribunal and submitted that, had he been represented, an adjournment for the obtaining of a medical report would have been sought.
46. At the oral hearing of the appeal before me, Mr Kirk, for the Department, submitted that Mr Breslin's submissions were correct. In light of the relevant ambiguity, the appeal ought to have been adjourned, for the purposes of obtaining additional medical evidence, and the failure of the appeal tribunal so to do rendered its decision in error of law.
47. In C8/08/09(IB), I said the following, at paragraphs 67-71, about the powers and duties of appeal tribunal with respect to adjournments for additional medical evidence:

67. 'Regulation 51 of the Social Security (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, permits the adjournment of an appeal tribunal hearing. Requests for adjournments may be made by a party to the proceedings, or may be of the own motion of the appeal tribunal, if the appeal tribunal feels that such an adjournment is necessary. A simple reading of the regulation might imply that there is either (i) a request for an adjournment emanating from the appellant, or his representative, in order to enable the appellant to obtain additional evidence, or (ii) a decision by the appeal tribunal that it will adjourn for it to obtain additional evidence. In practice, however, a third routine procedure exists – the appellant or his representative, where relevant, makes an application and persuades the appeal tribunal to adjourn of its own motion and direct the production of additional evidence.

68. In the present case, it is clear that the appellant, or his representative, could have made an application for an adjournment, for the purposes of them obtaining additional medical evidence and, in so doing, indicated that such additional evidence was necessary. The appellant and his representative failed to make such an application.

69. Although it has the legislative power to do so there is no requirement for an appeal tribunal to adjourn a hearing, of its own motion, in order to obtain additional medical evidence, either because it has decided that such evidence is necessary or has been persuaded to that effect by the appellant. Appeal tribunals should, of course, consider critically the issue of adjournment. The appeal tribunal should first ask whether the evidence to be obtained is necessary and if so whether it is likely to assist in determining the matter when the case comes back. The precise nature and relevance of the additional evidence should be identified. Only if the evidence is material to the issues arising in the appeal, and not presently available to the appeal tribunal, should an adjournment to obtain that evidence be considered. Appeal tribunals should also take into account the opportunity which the parties have had to obtain the evidence, the need to avoid delays to others and whether there is a reasonable prospect of obtaining the evidence. A conflict of evidence between parties may not necessarily be resolved by seeking further evidence. Rigorous evaluation of the available evidence to resolve the conflict is often more appropriate.

70. Additionally, it should not be assumed that because an appeal tribunal gives a direction as to evidence it will be supplied. Some thought should also be given to how long the delay might be in obtaining evidence, especially in relation to medical reports which may not be given priority by medical practitioners. Consideration should also be given to the person who will take responsibility for (i) obtaining the evidence and (ii) preparing the evidence.

71. In summary, adjournments for further evidence require very careful consideration to determine whether they are really needed and, if so, whether they will achieve the intended outcome of providing the additional evidence needed.'

48. In the case before me, the appeal tribunal did, of course, consider the issue of an adjournment. The appellant has asked whether a medical practitioner whom he had considered to be in a position to provide relevant medical evidence, had been contacted. The LQPM had indicated that the Department had not done so; pointed out that the appeal tribunal was independent of the Department; and asked the appellant whether he wished to seek an adjournment to obtain additional medical evidence against the background that the appeal tribunal had before it the appellant's complete medical records.
49. It is arguable that the appeal tribunal could not have done much more. In light, however, of:

(i) the serious ambiguity which existed in respect to the available medical evidence relating to a live issue before the appeal tribunal, namely whether the appellant had a reasonable requirement for motivation, encouragement or prompting to attend to his bodily functions and/or prepare a cooked main meal for himself; and

(ii) the fact that the appellant was unrepresented;

the appeal tribunal should have been more proactive in its consideration of whether an adjournment was appropriate. I am in agreement with Mr Breslin when he submits that had the appellant had representation before the appeal tribunal, the application for an adjournment would have been made in a more rigorous manner, and, more than likely, would have been acceded to.

Disposal

50. On the basis of my reasoning set out above, the decision of the appeal tribunal dated 6 February 2007 is in error of law.
51. 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.
52. 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. Additionally, 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.
53. It will be for both parties to the proceedings to make submissions, and adduce evidence in support of those submissions, on all of the issues relevant to the appeal. In this respect, the appellant's representative, in light of the submissions made to me, may wish to obtain additional medical evidence in respect to the claimed requirement for attention in connection with bodily functions and/or the preparation of a cooked main meal, through motivation, prompting, encouragement or support.
54. It will be for the appeal tribunal to consider the submissions made by the parties to the proceedings on these issues, and any evidence adduced in support of them, and then to make its determination, in light of all that is before it.

(signed) K Mullan

Commissioner

22 May 2009