Northern Ireland - Social Security and Child Support Commissioners' Decisions

 


[2009] NISSCSC C29_08_09(DLA) (14 May 2009)

Decision No: C29/08-09(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 29 April 2008 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. Having considered the circumstances of the case, I am satisfied that the application can properly be determined without a hearing.
2. Both parties to the proceedings before the Social Security Commissioner have expressed the view that the decision of the appeal tribunal, which is the subject of this appeal, is in error of law.
3. I am in agreement with the Decision Making Services unit (DMS) of the Department that the decision of the appeal tribunal was in error of law for the reasons identified by DMS.
4. 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.
5. 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 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.
6. It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside the issue of the entitlement of her child 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 appeal has a somewhat complicated background.
8. The appellant is the appointee of her child and it would appear that a renewal claim to DLA was made on behalf of the child by the appellant. On foot of that renewal claim, a decision-maker, on 18 May 2006, decided that the child should be entitled to the lower rate of the mobility component and the highest rate of the care component of DLA from 8 August 2006 to 7 August 2010.
9. An appeal against the decision dated 18 May 2006 was heard by an appeal tribunal on 1 February 2007. It disallowed the appeal but maintained the decision dated 18 May 2006.
10. On 9 January 2008 a Deputy Social Security Commissioner set aside the decision of the appeal tribunal, dated 1 February 2007, and referred the appeal to a differently constituted appeal tribunal for determination.
11. The basis for the setting aside was the failure on the part of the appeal tribunal to consider whether the child might have an entitlement to the higher rate of the mobility component through satisfaction of the test set out in section 73(3) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992.
12. A further appeal tribunal hearing took place on 29 April 2008. This appeal tribunal also disallowed the appeal, and substituted its own decision which was to make the awards of the lower rate of the mobility component and the highest rate of the care component of DLA indefinite.
13. On 10 August 2008 an application for leave to appeal to the Social Security Commissioner was received in The Appeals Service.
14. On 26 September 2008, the application for leave to appeal was refused by the legally qualified panel member (LQPM).

Proceedings before the Social Security Commissioner

15. On 24 October 2008, a further application for leave to appeal to the Social Security Commissioner was received in the Office of the Social Security Commissioners.
16. On 21 November 2008 observations were sought from DMS and these were received on 15 December 2008. DMS supported the application.
17. Observations were shared with the appellant on 8 January 2009.
18. On 9 March 2009, leave to appeal was granted by the Chief Social Security Commissioner. The Chief Commissioner stated the following reason for granting leave to appeal:

'It is arguable that the decision was wrong in law, because the tribunal did not deal with the issue whether the applicant's reluctance to walk stems from a decision not to walk or whether it is attributed to a physical disablement.'

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. In the written observations on the application for leave to appeal, DMS submitted that:

'The tribunal agreed at the start of the hearing that based on the evidence before them the only issue to decide was whether or not [child J] was entitled to the higher rate of the mobility component.

In unreported decision CSDLA 202/2007 Commissioner Parker held that in a case where a disabled child suffers from behavioural problems there are two possible routes to entitlement to the higher rate mobility component both of which required the tribunal's consideration. The first route in which a claimant may qualify is by satisfying Section 73(1)(a) of the Social Security and [sic] Contributions and Benefits (Northern Ireland) Act 1992 ("the Act") and regulation 12(1)(a) of the Social Security (Disability Living Allowance) Regulations 1992 (the "Regs"). In order to qualify under this route a claimant must show that they are virtually unable to walk. In R(M) 3/96 [sic] (referred to by Commissioner Parker) a Tribunal of GB Commissioners held that behavioural problems affecting a claimant's ability to walk must stem from physical ability. At paragraph 8 the Commissioners stated:

"…First, one should ask whether his ability to walk out of doors was so restricted 'as regards distance over which or speed at which or length of time for which or the manner in which he can make progress on foot without severe discomfort' that he had to be treated as virtually unable to walk. All the various elements … had to be considered separately… However if the claimant was unable to walk or virtually unable to walk in accordance with the above criteria, then the next question was whether this was attributable to some physical impairment of the brain. The criterion was whether the claimant could not walk, as distinct from would not walk. We agree with the importance of that distinction. Manifestly if a child who has been walking perfectly satisfactorily decides to stop, but his refusal to continue further can be overcome by the promise of an [sic] a reward or the threat of punishment there can be no question of him stopping having arisen out of a physical condition over which he has no control. ….It is, of course, for the tribunal as a medical matter to determine whether a child's propensity to cease walking is to be attributed to a deliberate element on his part or to a physical disablement."

As can be seen from the above extract where a child shows a reluctance to walk the tribunal has to decide whether the reluctance stems from a deliberate element or whether it is attributed to a physical disablement. At the appeal hearing (the claimant) raised the issue of (child J) being reluctant to walk. There were also issues raised in a letter at tab 11 of the submission to the tribunal which states that after walking 10-20 yards [child J) would sit down and it can be difficult to get her up and mobile again. On perusing the statement of reasons for its decision it is clear that the tribunal has not dealt with this issue. It is my submission that the tribunal should have investigated this issue further and made findings as to the cause of (child J's) reluctance to walk and its failure to do so has rendered the decision erroneous in law.'

22. In the record of proceedings for the appeal tribunal's decision, it was noted that the appellant had indicated that her child 'can be reluctant to walk.' Additionally, in other correspondence which was before the appeal tribunal, and which was attached to the original appeal submission at Tab No 9, it was noted that the child would 'just sit down and it can be difficult to get her up and mobile again.' It is clear, therefore, that the child's reluctance to walk was an issue which was before the appeal tribunal and one which the appeal tribunal was required to address. Looking at the statement of reasons for the appeal tribunal's decision I cannot find any indication that the appeal tribunal has addressed the issue, and made relevant findings of fact in connection with it. I am in agreement, therefore, with DMS that the appeal tribunal's failure in this regard renders its decision erroneous in law.

Disposal

23. The decision of the appeal tribunal dated 29 April 2008 is in error of law.
24. 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.
25. 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, and as was noted above, there may be further findings of fact which require to be made. Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.
26. 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.
27. 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.
28. The appeal tribunal is reminded that it is under a duty, as determined on 9 January 2008 by a Deputy Social Security Commissioner, that it must consider, amongst the other issues which will arise in the appeal, whether the child might have an entitlement to the higher rate of the mobility component through satisfaction of the test set out in section 73(3) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992.

(signed): Kenneth Mullan

Commissioner

14 May 2009