Northern Ireland - Social Security and Child Support Commissioners' Decisions

 


[2009] NISSCSC C2_08_09(DLA) (02 March 2009)

Decision No: C2/08-09(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 16 November 2007
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by the claimant, with the leave of the legally qualified member (LQM), from a decision of a tribunal disallowing the claimant's appeal from the decision-maker's decision to the effect that the claimant is not entitled to the care component of disability living allowance (DLA) from and including 12 June 2006 and disallowing the claimant's appeal from a decision of the decision-maker to the effect that the claimant is not entitled to the mobility component of DLA from and including 12 June 2008 [sic]. In fact the decision-maker had decided that the claimant was not entitled to the mobility component from and including 12 June 2006.
2. Having considered the circumstances of the case and the reasons put forward in the request for a hearing, I am satisfied that the appeal can properly be determined without a hearing.
3. On 12 June 2006 the claimant made a claim for DLA stating that he had ulcerative colitis and depression. The claimant's general practitioner (GP) completed a report on 3 October 2006. On 24 April 2007 the claimant was examined by an examining medical practitioner (EMP). On 22 May 2007 it was decided that the claimant's claim should be disallowed from and including 12 June 2006. After a request for reconsideration, on 23 May 2007, the decision of 2 May 2007 was reconsidered. However it was not changed. The claimant then appealed to a tribunal.
4. As stated in the first paragraph the tribunal unanimously disallowed the appeal. Moreover, in relation to the mobility component, the tribunal purported to disallow the allowance from and including 12 June 2008 rather than 12 June 2006.
5. The claimant sought leave from the LQM to appeal to a Commissioner. On 2 April 2008 leave was granted on the following point of law:

"The tribunal is alleged not to have considered all of the available medical evidence."

6. The claimant failed, as required by regulation 13(1) of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999, to send a notice of appeal to a Commissioner within one month of the date on which the claimant was sent written notice that leave had been granted (4 April 2008), as the notice of appeal was not received until 16 June 2008. However, a Commissioner on 25 September 2008 accepted the late notice of appeal for special reasons.
7. The claimant, who is unrepresented, has argued that the tribunal erred in law because (i) it failed to consider all of the medical evidence, (ii) it heard the case when there was no Departmental presenting officer in attendance, (iii) the examination by the EMP did not occur until 11 months after his application and (iv) the chairman had no interest in what the claimant had to say at the appeal hearing.
8. Mr Kirk of Decision Making Services, on behalf of the Department, has opposed the appeal and has put his submissions in writing by letter dated 13 October 2008.
9. It is notable that the claimant has not stated which specific medical evidence was not considered. Moreover, as Mr Kirk has pointed out, the first and last paragraphs of the reasons for the tribunal's decision relating to the mobility component include references to the GP factual report completed by Dr F…..and also to the claimant's medical notes and records. In addition there is specific mention in the list of documents, noted as being considered by the tribunal in the record of proceedings, to a report dated 23 October 2007 - a letter submitted by Dr F…..I conclude that there is no substance in this ground of appeal.
10. In relation to the lack of the Departmental presenting officer at the hearing, I would preface my remarks by stating that I consider it to be preferable that a presenting officer is in attendance at any hearing before a tribunal and it is good practice for the Department to provide an officer who is conversant with the issues in any such hearing. However, there is no legal requirement for the attendance of any such officer and, in my view, the tribunal was entitled to proceed with the hearing in the absence of the presenting officer and, in deciding to do so, the tribunal has not erred in law.
11. In relation to the delay of 11 months before the EMP's report, it is correct that the time gap from the date of the original claim (22 June 2006) until the examination on 24 April 2007 – in fact 10 months – is longer than normally expected. However, as Mr Kirk has pointed out, the claimant stated in his self-assessment form that his mobility problems had existed for the past five years and also that his personal care problems had started in the past seven to eight months. In addition, the claimant informed the EMP that his mobility and care needs still existed and there is no suggestion that there had been any deterioration or improvement in his condition. In the circumstances the EMP was entitled to give his professional opinion in relation to his mobility and care needs and also the tribunal was entitled to accept this report. Accordingly, I conclude that the tribunal has not erred in this respect.
12. In relation to the allegation that the chairman of the tribunal had no interest in what the claimant had to say, the record of proceedings suggests that the claimant was given an opportunity to put forward his case and it is also clear that he has in fact done so. Accordingly, I do not find that the tribunal has erred in law in this respect.
13. Another point has arisen, however, which affects the validity of the tribunal's decision. The decision notice in relation to the mobility component records that the claimant was not entitled to this component from and including 12 June 2008. This date should in fact be 12 June 2006 – the date recorded in the decision notice of the care component. This seems to be an accidental error due to a slip of the pen. (Perusal of the form filled out by the LQM demonstrates that he originally in fact put the relevant dates for each component as being 2 May 2007 but then subsequently amended the care component date to 12 June 2006 and the mobility component date to 12 June 2008). It is clear, under regulation 56(1) of the Social Security and Child Support (Decisions and Appeal) Regulations (Northern Ireland) 1999 (No. 162), that the LQM had the power to correct this accidental error in the notice of decision. However, this has not been done. While, in my view, the error amounts to an accidental error, it has the effect of being an error in law as it has not been corrected. Accordingly, I formally find that there has been an error in law in the tribunal's decision in respect of the mobility component.
14. In light of that finding I set aside the decision appealed against insofar as it relates to the mobility component. Under Article 15(8)(a)(i) of the Social Security (Northern Ireland) Order 1998 I can give the decision which I consider the tribunal should have given, which is that the claimant is not entitled to the mobility component from and including 12 June 2006. For the removal of any doubt I uphold the decision of the tribunal in relation to the care component, namely, that the claimant is not entitled to the care component of DLA from and including 12 June 2006.

(signed): J A H Martin QC

Chief Commissioner

2 March 2009