Northern Ireland - Social Security and Child Support Commissioners' Decisions

                        Decision No: C18/09-10(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 10 September 2008

 

 

                         DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.         This is an appeal by the claimant against the unanimous decision of the tribunal.  The decision-maker on a renewal claim decided that the claimant was not entitled to any award of disability living allowance (DLA) from and including 9 June 2008.  On appeal the tribunal unanimously decided that the claimant was not entitled to any rate of the care component of DLA from and including 9 June 2008 but awarded the lower rate of the mobility component of DLA from 9 June 2008 until 8 June 2009.  Leave to appeal to a Commissioner was sought by the claimant but on 24 November 2008 leave was refused by the legally qualified panel member.  Leave to appeal was granted by a Commissioner on 24 June 2009 for the following reasons:

 

“It is arguable that the decision was wrong in law, because, in assessing the claimant’s needs at the date of her renewal claim, the tribunal came to a clear conclusion but it failed to indicate how it reached these conclusions and also failed to make clear which evidence it preferred, accepted or rejected in reaching its conclusion.”

 

2.         Having considered the circumstances of the case I am satisfied that the appeal can properly be determined without a hearing. 

 

3.         The claimant is not represented while Mr J Kirk of Decision Making Services (DMS) represents the Department. 

 

4.         On appeal the tribunal gave the following reasons for its decision in relation to both the care and mobility components:

 

“The relevant circumstances date is 10.03.2008.  This lady is 54.  She is able to walk a reasonable distance in a reasonable manner in a reasonable speed.  She can attend to all her care needs save washing her hair and her back.  She says she can’t prepare vegetables but with appropriate aids she could.  An Occupational Therapy visit might assist her.

 

She says she does not go out – except very occasionally and not alone.

 

She is seeking help through the Social Worker.  She wants to improve her condition.  Lower mobility from 09.06.2008 for one year is on balance appropriate.”

 

5.         The only arguable point of law, in my view, is that set out in the granting of leave to appeal.  The claimant has submitted that the tribunal came to the wrong conclusion as her condition had got worse since her previous award of DLA.  The claim made by the claimant on 14 January 2008 was a renewal claim but, in the circumstances must be dealt with as if it were a new claim.  The claimant had been receiving the high rate of mobility and the middle rate of care component of DLA from 9 June 2005 to 8 June 2008.  However, as Mr Kirk has pointed out, the Court of Appeal in Quinn v Department for Social Development [2004] NICA 22 held that each application for DLA must be treated anew and the claimant must establish the level of disability at the time the application is made.  Nevertheless, as Mr Kirk also pointed out, where a tribunal is not renewing a previous award, it must explain why it is not so doing, unless it is obvious from its findings. 

 

6.         The issue for the tribunal in this case was whether the claimant’s needs at the date of her renewal claim (9 June 2008) were sufficient to satisfy the entitlement conditions for an award of DLA.  However, in the tribunal’s reasoning, (set out at paragraph 4 herein) the tribunal clearly states its conclusions but has failed to indicate how it has reached these conclusions and has also failed to come to a conclusion as to which evidence it preferred, accepted or rejected in reaching its conclusion. 

 

7.         Mr Commissioner Mullan in C8/08-09(IB) at paragraph 60 has stated as follows:

 

“… 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 preferred, accepted or rejected evidence which is before it and which is relevant to the issues arising in the appeal.”

 

8.         In its short statement of reasons the tribunal in the present case has failed to carry out these duties.   Accordingly I hold that it has erred in law in this respect.

 

9.         Mr Kirk has also mentioned that the claimant enclosed a letter from Dr D…. in her application for leave to appeal mentioning that the claimant’s condition is worsening.  This letter from Dr D…., dated 5 December 2008, refers to the claimant being made homeless in October 2008, seven months after the date of the decision of the tribunal under appeal.  However, as Mr Kirk has reminded me, the appeal tribunal would be prohibited from taking account of such changes because of the specific provisions of Article 13(8)(b) of the Social Security (Northern Ireland) Order 1998 as the letter suggests a deterioration in her condition subsequent to the decision under appeal.

 

10.       In the circumstances, for the reasons set out in paragraphs 5 to 7 herein, I conclude that the tribunal’s decision is erroneous in point of law.  Accordingly, I allow the appeal, set aside the tribunal’s decision and refer the case to a differently constituted tribunal for a rehearing on the merits.  The fact that this appeal has been successful should not be taken as an indicator that the claimant’s appeal before the fresh tribunal will be successful.

 

 

 

(signed)

John A H Martin QC

Chief Commissioner

 

15 September 2009

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

C180910DLA.JM