Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2009] NISSCSC C20_08_09(DLA)

Decision No: C20/08-09(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 13 March 2008

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by the claimant, with the leave of a Commissioner, against the unanimous decision of the tribunal, affirming the decision of the decision-maker to the effect that the claimant is not entitled to either rate of the mobility component of disability living allowance (DLA) from and including 12 October 2007 and also allowing the appeal in relation to the care component of DLA by awarding that component at the lowest rate from and including 12 October 2007.
2. Having considered the circumstances of the case I am satisfied that the appeal can properly be determined without a hearing.
3. The claimant has conducted his own appeal, while Mr J Hinton of Decision Making Services has represented the Department.
4. A renewal claim by the claimant in respect of the period from 12 October 2007 was received in the Department on 4 June 2007 indicating that the claimant had depression, alcohol dependency and asthma. On 10 September 2007 it was decided that the claim should be disallowed from and including 12 October 2007. On 24 September 2007 the decision of 10 September 2007 was reconsidered. However it was not changed. A letter of appeal was then received on 28 September 2007.
5. On appeal the tribunal dealt with the case as set out in paragraph 1 herein. Leave to appeal to a Commissioner was then sought by the claimant. However, leave was refused by the legally qualified member on 1 July 2008. An application was made then by the claimant for leave to the Social Security Commissioner. Leave was granted on 13 November 2008 on the following grounds:

"It is arguable that the decision was wrong in law, because, when dealing with the care component of disability living allowance, the tribunal failed to deal adequately with the claimant's depression and mental problems and, in particular, it is arguable that the tribunal failed in its inquisitorial role and, as a result, it is arguable that the tribunal's reasons for its decision are inadequate."

6. The claimant has contended that the tribunal erred in law on the following grounds.

(1) The tribunal should have awarded him the middle rate of the care component because of his mental illness and the problems arising from his alcoholism.

(2) The claimant disagreed with the tribunal's decision which disallowed the mobility component because, owing to his asthma, he is unable to walk very far.

7. In relation to the second ground in my view there is no substance in the point as the tribunal was clearly entitled to come to the view that the claimant did not require guidance or supervision and, therefore, it cannot be said to have erred in law.
8. However there is more substance in the claimant's first ground which, to a certain extent, is supported by the Department.
9. Mr Hinton in particular has made the following relevant submission, which is well worth setting out in full, by letter dated 13 October 2008. In that letter he stated, inter alia, as follows:

"The tribunal in the statement of reasons has observed:

"The tribunal is satisfied that due to personality/mental health problems the appellant cannot without assistance prepare a cooked main meal for himself.

He does not require frequent attention or continual supervision throughout the day or prolonged or repeated attention at night or another person to be awake for a prolonged period or at frequent intervals."

The tribunal has conceded that [the claimant's] mental condition justifies an award of low rate care. Whilst the tribunal has stated that an award of middle rate care is not justified. I would contend that the reasons given are inadequate and that the tribunal should have investigated this issue further. [The claimant] has referred in his self-assessment form and in his letter of appeal to his alcoholism and depression and the general practitioner (GP) report states alcohol dependence syndrome, substance abuse, personality disorder and anxiety/depression most days. Regarding the area of self-care the report stated:

"Requires help when severely depressed, anxious with washing, feeding."

I would contend that in light of the evidence presented in [the claimant's] self-assessment form and the GP report, it was incumbent on the tribunal to enquire further about the frequency of [the claimant's] depression and mental problems and how these impacted upon his daily living. Whilst the tribunal have referred to [the claimant] attending Alcoholics Anonymous meetings, I would contend that it should have made further investigations into how [the claimant's] alcoholism affected his day to day living. By not doing this I would contend that the tribunal failed in its inquisitorial role and as a result the reasons for its decision are inadequate. The subject of adequacy of reasons has been addressed by a Tribunal of Commissioners in reported decision R2/01(IB)(T). At paragraph 38 they stated:

"We also note that Mr Commissioner Williams quotes from the judgment of Lord Lane C.J. in R v Immigration Appeal Tribunal, ex parte Khan [1983] QB790. The passage from which this quotation is taken when read in full is as follows: -

… The important mater which must be borne in mind by tribunals in the present type of circumstances is that it must be apparent from what they state by way of reasons first of all that they have considered the point which is at issue between the parties, and they should indicate the evidence on which they have come to their conclusions.

Where one gets a decision of a tribunal which either fails to set out the issue which the tribunal is determining either directly or by inference, or fails either directly or by inference to set out the basis on which it has reached its determination on that issue, then that is a matter which will be very closely regarded by this court, and in normal circumstances will result in the decision of the tribunal being quashed. The reason is this. A party appearing before a tribunal is entitled to know, either expressly stated by it or inferentially stated, what it is to which the tribunal is addressing its mind. In some cases it may be perfectly obvious without any express reference to it by the tribunal; in other cases it may not. Secondly, the appellant is entitled to know the basis of fact on which the conclusion has been reached. Once again in many cases it may be quite obvious without the necessity of expressly stating it, in other cases it may not."

In view of the case law cited above it is my submission that the tribunal has erred in law in its failure to give adequate reasons for its decision and its failure to fulfil its inquisitorial role."

10. In my view Mr Hinton's submissions are not only elegantly expressed but are also legally accurate. The reasons for the tribunal's decision as set out by the legally qualified member in relation to the care component in this case are particularly sparse. The reasons were as follows:

"The tribunal is satisfied that due to personality/mental health problems the appellant cannot without assistance prepare a cooked main meal for himself.

He does not require frequent attention or continual supervision throughout the day or prolonged or repeated attention at night or another person to be awake for a prolonged period or at frequent intervals.

The tribunal considered whether the award should be for a fixed period and decided against fixing a period."

These reasons do not explain why the claimant's contentions have been rejected. Having regard to these reasons, the claimant is not in a position to know why the potential award of the middle rate of the care component has not been allowed. Accordingly I conclude that the tribunal has erred in law by failing to give adequate reasons for its decision and, in all the circumstances, for failing to exercise and fulfil its inquisitorial role for the reasons stated by Mr Hinton.

11. In the circumstances, for the reasons set out herein, I conclude that the tribunal's decision was erroneous in point of law. Accordingly I allow the appeal and set the tribunal's decision aside and refer the case to a differently constituted tribunal for a rehearing on the merits.

(signed)

John A H Martin QC

Chief Commissioner

19 January 2009