Northern Ireland - Social Security and Child Support Commissioners' Decisions

 


[2009] NISSCSC C18_08_09(DLA) (21 May 2009)

Decision No: C18/08-09(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 21 April 2008
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. Having considered the circumstances of the case, and any reasons put forward in the request for a hearing, I am satisfied that the appeal can properly be determined without a hearing.
2. The decision of the appeal tribunal dated 21 April 2008 is in error of law. The error of law identified will be explained in more detail below.
3. 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.
4. 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. This is because there may be further evidence relevant to the issues arising in the appeal, including medical evidence, to which I have not had access. Additionally, there may be 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.
5. 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.
6. It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of her entitlement to disability living allowance (DLA) remains to be determined by another appeal tribunal. The newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal.

Background

7. The decision under appeal is a decision of the Department, dated 9 November 2007, which decided that the appellant was not entitled to DLA, from and including 1 February 2008, on foot of a renewal claim.
8. The appeal was received in the Department on 28 December 2007.
9. The appeal tribunal hearing took place on 21 April 2008. The appellant attended the oral hearing and was represented by Mr McAlinden of the Citizens' Advice Bureau (CAB). Mr Barry McVeigh (CAB) was also in attendance. The appellant's mother also attended and there was no presenting officer from the Department in attendance.
10. The appeal tribunal disallowed the appeal, in respect of the mobility component of DLA and confirmed the decision dated 9 November 2007. The appeal tribunal did, however, make an award of an entitlement to the lowest rate of the care component from and including 1 February 2008.
11. On 1 May 2008 a request for a statement of reasons (SORs) for the appeal tribunal's decision was received in The Appeals Service (TAS).
12. On 4 August 2008, the SORs were issued to the appellant.
13. On 4 September 2008 an application for leave to appeal to the Social Security Commissioner was received in TAS.
14. On 12 September 2008, the application for leave to appeal was granted by the legally qualified panel member (LQPM). In granting leave to appeal, the LQPM identified as a point of law 'The points raised in the appellants grounds of appeal'.
15. On 16 October 2008, the appeal to the Social Security Commissioner was received in the Office of the Social Security Commissioners.
16. On 24 November 2008 observations were sought from Decision Making Services (DMS) and these were received on 8 December 2008. DMS opposed the appeal on all grounds cited.
17. Observations were shared with the appellant and representative on 2 February 2009.

Errors of law

18. 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.
19. 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

20. In the application for leave to appeal to the Social Security Commissioner, the appellant's representative has identified three grounds on which it is submitted that the decision of the appeal tribunal was in error of law:

(i) the appeal tribunal erred in not explaining why it was not renewing the appellant's previous award of DLA;

(ii) the appeal tribunal relied on an extract from the Disability Handbook referring to how the appellant's diagnosed medical condition affects the majority of those suffering from it and impacts on their ability to care for themselves. There was contrary evidence supplied by the appellant's general practitioner (GP) which submitted that the appellant's problems were not typical of the majority; and

(iii) the appeal tribunal's reasons were inadequate to explain why it was not making an award of the higher rate of the mobility component of DLA.

21. As was noted above, DMS oppose the appeal on all three grounds.
22. Oral appeal tribunal hearings in relation to entitlement to DLA may necessarily involve the members of the appeal tribunal adducing evidence, and asking questions in connection with sensitive and delicate issues, such as incontinence. Such questions have the potential to be discomforting, embarrassing and awkward for the witness concerned. The members of an appeal tribunal must be attentive to the sensitivity of the subject-matter involved in certain disabilities, and must undertake an exploration of problems associated with such disabilities in a discreet and tactful manner.
23. In my view the appeal tribunal took great care in conducting all aspects of this appeal, including the management of the questioning, and the adducing of evidence. The appeal tribunal has been equally careful in the manner in which it has set out the basis upon which it arrived at the conclusions which it did. The majority of the issues raised by the appeal, either expressly or apparent from the evidence, were fully examined by the appeal tribunal in conformity with its inquisitorial role. The appeal tribunal reminded itself of the correct legal principles to be applied to the issues arising in the appeal. Nearly all of what was undertaken and explained by the appeal tribunal cannot be faulted.
24. Where I do consider the appeal tribunal did err was in the manner in which it dealt with certain aspects of the evidence before it. As was noted by the appellant's representative the appeal tribunal referred, in the SORs for its decision, to an extract from the 'Disability Handbook'. The extract had been included in the original appeal submission by the appeals writer.
25. The relevant extract is included in the SORs for the appeal tribunal's decision in respect of the care component of DLA, as follows:

'The majority of people suffering from inflammatory bowel disease manage to cope unaided with the essential activities of daily living, even during relapses and have no significant mobility problems. As these diseases mostly affect adults, even those with persistent symptoms are usually able to care for themselves.'

26. The passage is quoted in the same format in the SORs for the appeal tribunal's decision in respect of the mobility component of DLA except that the statement 'and have no significant mobility problems' is italicised. From that, it is clear that the appeal tribunal placed great emphasis on this extract.
27. In respect of the reasons for the appeal tribunal's decision in respect of the care component, the statement goes on to say:

'The evidence we heard was largely consistent with this insight. Despite the seriousness of her condition (the claimant) was capable of attending independently to activities of daily living most of the time. She was usually alone at night and we heard no evidence to suggest that prolonged or repeated night time attention was required.'

28. In respect of the reasons for the appeal tribunal's decision in respect of the mobility component, the statement goes on to say:

'The evidence we heard was generally consistent with that assessment. We accepted that abdominal pain and the perianal abscess would sometimes significantly restrict the appellant's walking. However, we thought that for much of the time the perianal abscess meant that sitting was likely to be a more uncomfortable activity than walking. Given the nature of the condition and after hearing the evidence we were satisfied that most of the time (the claimant) is not virtually unable to walk within the meaning of the statutory test.'

29. In CIB/14332/96, it was confirmed, at paragraph 11, that while statements contained within the Disability Handbook are not law, and cannot be used to override or vary the words of the law itself, they may be used by adjudicating authorities where there are problems with interpretation.
30. I do not consider that there is any inherent difficulty with an appeal tribunal making reference to statements in the Disability Handbook, in the context in which such statements were utilised in the present case.
31. The difficulty in the present case is that the appeal tribunal had before it additional evidence concerning the effects of inflammatory bowel disease, on the appellant herself, to which the appeal tribunal has not referred, or assessed as part of the available evidence, in adequate detail. As the record of proceedings and SORs confirm, the appeal tribunal had before it a letter from the appellant's GP, dated 6 March 2008. In this letter, the GP states:

'Her disease, in my experience is more severe and unpredictable that [sic] most other patients with the same illness.'

I am certain that the reference to the word 'that' should read 'than'.

32. Accordingly, the appeal tribunal had guidance, through the extract from the Disability Handbook, not only of inflammatory bowel disease affects the majority of sufferers, but also evidence, through the letter from the GP, of how inflammatory bowel disease affects the appellant herself. How did the appeal tribunal deal with this latter evidence? There is a reference, in both the SORs for the appeal tribunal's decision in respect of the mobility and the care components of DLA to a 'supportive letter dated 6 March from [Dr H …]'. All that is thereafter recorded is what is referred to in that letter rather than an assessment of its evidential value.
33. In my view, there is a clear duty on appeal tribunals to undertake a rigorous assessment of all of the evidence before it and to give an explicit explanation as to why it has preferred, accepted or rejected evidence which is before it and which is relevant to the issues arising in the appeal.
34. In R2/04(DLA) a Tribunal of Commissioners, stated, at paragraph 22(5):

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

35. In its SORs the appeal tribunal has made a passing reference to the medical evidence provided by the appellant, in the form of the medical report from her GP, dated 6 March 2008, and in which the GP makes a relevant and significant comment on the effects of inflammatory bowel disease on the appellant. The SORs gives no indication as to how that medical evidence was assessed and whether or not it was accepted or rejected.
36. The failure of the appeal tribunal to explain, in its SOR, why it has accepted and preferred the guidance contained in the Disability Handbook to the other evidence available to it means that those reasons are inadequate. Accordingly, the decision of the appeal tribunal is in error of law.

The appellant's other grounds for appealing

37. As was noted above, in the application for leave to appeal to the Social Security Commissioner, the appellant cited two further grounds for appealing, as follows:

(i) the appeal tribunal erred in not explaining why it was not renewing the appellant's previous award of DLA; and

(ii) the appeal tribunal's reasons were inadequate to explain why it was not making an award of the higher rate of the mobility component of DLA.

38. Having found that the appeal tribunal's decision was in error of law, on the basis set out above, there is no requirement to formally evaluate the other grounds cited by the appellant. I would indicate, however, that I would not necessarily have found that the appeal tribunal's decision was in error of law on either of the two grounds cited. More particularly, in relation to the first ground, I refer to what I said in C16/07-08(DLA), at paragraphs 57-64, concerning the relevant principles in relation to the issue of how appeal tribunals should address the issue of the renewal of awards of DLA.

Disposal

39. The decision of the appeal tribunal dated 21 April 2008 is in error of law.
40. 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.
41. 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 may be further evidence relevant to the issues arising in the appeal, including medical evidence, to which I have not had access. Additionally, there may be 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.
42. 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.
43. 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

21 May 2009