Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2009] NISSCSC C2_09_10(DLA) (5 May 2009)

Decision No: C2/09-10(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
DISABILITY LIVING ALLOWANCE
Application by the claimant for leave to appeal and appeal to a Social Security Commissioner on a question of law from a Tribunal's decision dated 30 May 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 application can properly be determined without a hearing.
2. I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.
3. The decision of the appeal tribunal dated 30 May 2008 is in error of law. The error of law identified will be explained in more detail below.
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, as there are 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. 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.
7. It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of his 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

8. The decision under appeal to the appeal tribunal was a decision of the Department, dated 16 January 2008 which, in turn, revised a decision dated 18 October 2007 and which had awarded an entitlement to the lowest rate of the care component of DLA from and including 6 December 2007.
9. The appeal against the decision was received in the Department on 11 February 2008.
10. An oral hearing took place on 8 May 2008, when the appeal was adjourned.
11. The substantive appeal tribunal hearing took place on 30 May 2008. The appellant attended and gave oral evidence to the appeal tribunal. The appellant was represented as was the Department by a presenting officer (PO).
12. The appeal tribunal disallowed the appeal, and substituted its own decision, to the following effect. The appeal tribunal determined that the appellant did not satisfy the conditions of entitlement to the mobility component of DLA from and including 6 December 2007. Further, the appeal tribunal determined that the appellant was entitled to the lowest rate of the care component of DLA. The decision notice for the appeal tribunal's decision in connection with the care component states that the appellant:

'… continues to satisfy the criteria for an award of DLA under the Care Component – low rate – from and including 6.12.07 to 5.12.09.'

13. On 18 June 2008 a request for a statement of reasons (SORs) for the appeal tribunal's decision was received in The Appeals Service (TAS).
14. On 4 August 2008, the SORs were issued to the appellant.
15. On 19 August 2008 an application for leave to appeal to the Social Security Commissioner was received in TAS. The grounds cited in the application were that:

(i) the appeal tribunal did not explain why it had rejected her evidence as not being credible;

(ii) the evidence from her general practitioner should not have been preferred;

(iii) the preparation of potatoes and porridge does not constitute a main meal.

16. On 12 September 2008, the application for leave to appeal was refused by the legally qualified panel member.

The proceedings before the Social Security Commissioner

17. On 14 October 2008, a further application for leave to appeal to the Social Security Commissioner was received in the Office of the Social Security Commissioners.
18. On 3 December 2008 observations were sought from Decision Making Services (DMS) and these were received on 2 January 2009. DMS opposed the application on all of the grounds cited.
19. Observations were shared with the appellant on 13 January 2009.
20. On 26 February 2009 I directed that DMS provide further observations on the following issues:

'The decision notice for the care component of disability living allowance indicates that '(the claimant) continues to satisfy the criteria for an award of DLA under the Care Component – low rate – from and including [sic] 6.12.07 to 5.12.09.'

The decision under appeal was a decision which had made an award of entitlement to the lowest rate of the care component from and including 6 December 2007.

In the statement of reasons for the appeal tribunal's decision, there is no reference to the duration of the award.

Further, in the statement of reasons, it is indicated that '… the Tribunal were not satisfied that (the claimant) would have reasonably required attention for a significant proportion of a day …' and that she '… was able to satisfy the main meal test …'

To what extent does the statement of reasons explain why the appeal tribunal made an award of an entitlement to the lowest rate of the care component and outline the period for which it considered the award should be made?'

21. DMS replied to this direction with further observations in correspondence dated 13 March 2009. In the reply DMS submitted that:

'The decision appealed against was made on 16 January 2008 and this awarded (the claimant] low rate care from and including 6 December 2007 for an indefinite period. Therefore it is obvious that the tribunal's decision differs from that given by the Department. Nowhere in the statement of reasons is there evidence that the tribunal addressed the issue of the duration of this award and why it restricted it to 2 years. I would submit that failure to do so renders its decision erroneous in law.

I now turn to the question of whether the tribunal adequately explained in the statement of reasons its decision to award the low rate care component. Entitlement to low rate care is satisfied if a person requires attention from another person for a significant portion of the day in connection with his bodily functions or he cannot prepare a cooked main meal for himself. In (the claimant's) case the decision maker awarded low rate care on the basis that she required help with planning and preparing a main meal.

Regarding (the claimant) requiring attention for a significant portion of the day, I would contend that the tribunal addressed this aspect of the care component in that it felt she overstated her needs, preferring the evidence presented in the GP notes.

However I would submit that it is not clear from the statement of reasons that the tribunal adequately explained how (the claimant) satisfied the award of the low rate care component in respect of the main meal test. In its reasoning regarding this aspect of (the claimant's) claim the tribunal has stated:

"(The claimant) claimed that she required attention and encouragement in some respects of her personal care. This included the preparation of the cooked meal. However (the claimant) confirmed in her own evidence that she could boil potatoes and could make porridge and therefore was able to satisfy the main meal test.

"…(The claimant) said that she could use her hands to peel vegetables although claims to suffer cramps. She can, of course, also crochet and write. She can toilet herself and drive a motor vehicle. We were also satisfied that (the claimant) was not making any complaints that she claimed to have made to her GP that her mobility and care needs were profound."

In light of the above information it would appear the tribunal concluded that (the claimant's) medical condition was not so severe to justify an award of the low rate care component in respect of the main meal test. Therefore, I would submit the tribunal has not made it clear on what basis entitlement to the low rate care component was made. I would submit that the tribunal has erred in law by failing to adequately explain its decision.'

22. On the basis of the further observations, DMS resiled from its earlier submission that the decision of the appeal tribunal was not in error of law, and supported the application for leave to appeal to the Social Security Commissioner. For the reasons which are set out below, the concession made by DMS is correct.

Errors of law

23. 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.
24. 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 errors of law in the present case

(i) What did the Department decide?

25. As was noted above, the decision under appeal to the appeal tribunal was a decision of the Department, dated 16 January 2008, which in turn, revised a decision dated 18 October 2007 and which had awarded an entitlement to the lowest rate of the care component of DLA from and including 6 December 2007.
26. The basis upon which the Department's decision-maker decided that the appellant should have an entitlement to the lowest rate of the care component of DLA is unclear. Attached to the original appeal submission, at Tab No 9, is a copy of the decision dated 16 January 2008. On the second page of that decision the following is noted:

'Care Entitlement

From:	To:	Rate:	Reason:
06/12/2007	Indefinite	Low	CO3: Limited care to plan or prepare a main meal'

That would suggest that the decision-maker had decided that the appellant should have an entitlement to the lowest rate of the care component of DLA, on the basis that she satisfied the condition of entitlement to be found in section 72(1)(a)(ii) of the Social Security Contributions and Benefits (Northern Ireland) Act, as amended. That condition of entitlement is that the claimant 'is so severely disabled physically or mentally that he cannot prepare a cooked main meal for himself if he has the ingredients'. Further it would also suggest that the entitlement to the lowest rate of the care component should commence on 6 December 2007 and should continue for an indefinite period.

27. The confusion concerning the basis of the award lies in a further tabbed document attached to the original appeal submission at Tab No. 10. This document is described as 'Reason for Decision'. In relation to the care component of DLA it is stated that:

'On the balance of probabilities from the available evidence I am satisfied that this customer's level of physical/mental disability is not so severe as to require frequent day attention, repeated/prolonged night attention or attention for a significant portion of the day in connection with bodily functions. I am also satisfied that this customer does not require continual supervision throughout the day or watching over at night for prolonged periods as there is no risk of substantial danger. I am also satisfied that this customer does not require help to plan and prepare a cooked main meal for one person.'

28. That statement would suggest that the writer has determined that the person subject to the decision does not satisfy any of the conditions of entitlement to the care component of DLA.
29. Incidentally, this is not the only perplexity in the tabbed documents 9 and 10. In document 9, at two different places, it is indicated, alternatively, that the conditions of entitlement to the mobility component are and are not satisfied.
30. Nonetheless, the remainder of the appeal submission is predicated on the Department accepting that the appellant satisfied the conditions of entitlement to the lowest rate of the care component, from and including 6 December 2007.

(ii) What did the appeal tribunal decide?

31. As was noted above, the appeal tribunal disallowed the appeal and substituted its own decision. The appeal tribunal determined that the appellant did not satisfy the conditions of entitlement to the mobility component of DLA from and including 6 December 2007. Further, the appeal tribunal determined that the appellant was entitled to the lowest rate of the care component of DLA.
32. The decision notice for the appeal tribunal's decision in connection with the care component states that the appellant:

'… continues to satisfy the criteria for an award of DLA under the Care Component – low rate – from and including 6.12.07 to 5.12.09.'

33. Once again there is confusion but the inclusion of a fixed end-date suggests that the appeal tribunal intended to limit the duration of the award to a two-year period. To that extent the indefinite sounding phrase 'from and including' is qualified.
34. In the statement of reasons for the appeal tribunal's decision it is noted that:

'On the evidence before us today the Tribunal was not satisfied that (the claimant) would have reasonably required attention for significant proportion of a day nor frequently throughout the day in connection with her bodily functions.'

Further, it is noted that:

'(The claimant) claimed that she required attention and encouragement in some aspects of her personal care. This included the preparation of the cooked meal. However (the claimant) confirmed in her own evidence that she could boil potatoes and could make porridge and therefore was able to satisfy the main meal test.'

35. Nowhere in the statement of reasons is there any indication as to why the appeal tribunal decided that a limited award of the lowest rate of the care component was appropriate.

(iii) What was wrong with the appeal tribunal's decision?

36. The formal decision notice records that the decision of the appeal tribunal was that the appellant should have an entitlement to the lowest rate of the care component of DLA, for a fixed period of two years.
37. The conditions of entitlement to the lowest rate of the care component of DLA are to be found in section 72(1)(a) and (4) of the Social Security Contributions and Benefits (Northern Ireland) Act, as amended. Section 72(1)(a) provides that:

'… a person shall be entitled to the care component of a disability living allowance for any period throughout which –

(a) he is so severely disabled physically or mentally that –

(i) he requires in connection with his bodily functions attention from another person for a significant portion of the day (whether during a single period or a number of periods); or

(III) he cannot prepare a cooked main meal for himself if he has the ingredients;'

38. Looking at the statement of reasons for the appeal tribunal's decision, it reads as if it is rejecting the appellant's entitlement to the lowest rate of the care component of DLA. In this regard, I respectfully disagree with the further observations from DMS that the statement of reasons is adequate to explain why the appeal tribunal concluded that the claimant did not satisfy the requirement in section 72(1)(a)(i) that is a requirement for attention in connection with bodily functions for a significant portion of the day. As was noted above, there is a clear assertion in the statement of reasons that 'on the evidence before us today the Tribunal was not satisfied that (the claimant) would have reasonably required attention for significant proportion of a day.'
39. Although not as unequivocal as the statement in respect of the 'significant proportion of a day' condition of entitlement, there is a similar oddity with how the appeal tribunal has approached the 'cooked main meal' condition. The appeal tribunal in its statement of reasons has indicated that the appellant 'was able to satisfy the main meal test'.
40. Read overall the decision notice and the statement of reasons are at odds and do not make sense. More significantly, the failure of the appeal tribunal to explain the basis upon which the appellant should have an entitlement to the lowest rate of the care component means that it has not provided an adequate explanation of its decision. The decision is, therefore, in error of law and is set aside.
41. As was noted above, the decision notice for the appeal tribunal's decision in connection with the care component states that the appellant:

'… continues to satisfy the criteria for an award of DLA under the Care Component – low rate – from and including 6.12.07 to 5.12.09.'

42. There is confusion, but the inclusion of a fixed end-date, suggests that the appeal tribunal intended to limit the duration of the award to a two-year period. To that extent the indefinite sounding phrase 'from and including' is qualified. Nowhere in the statement of reasons is there any indication as to why the appeal tribunal decided that a limited award of the lowest rate of the care component was appropriate.
43. Of course the appeal tribunal is entitled to make an award of DLA for a fixed period.
44. Section 71(3) of the Social Security Contributions and Benefits (Northern Ireland) Act, as amended, provides that a 'person may be awarded either component for a fixed period or for an indefinite period.'
45. In making an award for a fixed period the appeal tribunal is also entitled to disagree with the Department's alternative view that the award should be for an indefinite period.
46. The duties of an appeal tribunal, in determining an appeal against a decision of the Department, were comprehensively analysed and reviewed by a Tribunal of Commissioners in Great Britain in R(IB)2/04. At paragraph 55(2) of their decision, and in referring to parallel decision-making legislative provisions in Great Britain, the Commissioners state:

'Taking first the position of an appeal against the initial decision on a claim, the section 8 outcome decision under appeal will have been either to award or not to award benefit. As described above (paragraphs 24-26), unless there is some express provision to the contrary, the appeal tribunal's jurisdiction on the appeal is to make any decision which the Secretary of State could have made on the claim (although in doing so it need not consider any issues not raised by the appeal). That seems to us to follow simply from (a) the decision under appeal being generally an outcome decision deciding entitlement to benefit on the claim and (b) the appeal being a full appeal by way of rehearing on fact and law. In short, the appeal tribunal either upholds the Secretary of State's decision or holds it to have been wrong: but, if the latter, it goes on to make the decision on the claim which it considers the Secretary of State ought to have made. This may involve the appeal tribunal considering issues which have not been considered by the Secretary of State.'

It is clear, however, that where an appeal tribunal makes a decision that an award of entitlement to DLA should be for a fixed period then the appeal tribunal, in its statement of reasons, should provide an explanation as to why the award is for such a fixed period. Support for that conclusion is to be found in the decision of the Chief Social Security Commissioner in C6/94(DLA). In that decision, the Chief Social Security Commissioner was discussing the making of awards of DLA in the context of a general provision relating to the duration of awards. Nonetheless, his remarks concerning the requirement for a clarification of the reasons for the limitation of an award remain applicable.

47. The Chief Social Security Commissioner made it clear that the requirement to explain a limitation in award is not onerous. He described it, in paragraph 7, as the appeal tribunal making it:

'… clear that they have considered the point and explain in brief terms why they have decided that the award should be for the fixed period which they have selected, …'

48. In the present case, nowhere in the statement of reasons is there any indication as to why the appeal tribunal decided that a limited award of the lowest rate of the care component was appropriate. Accordingly, the minimal requirements set out in C6/94 (DLA) are not met and the decision of the appeal tribunal is in error of law for failing to meet those minimal requirements.

The other grounds cited by the applicant

49. As was noted above, the grounds cited in the application for leave to appeal to the Social Security Commissioner were that:

(i) the appeal tribunal did not explain why it had rejected her evidence as not being credible;

(ii) the evidence from her general practitioner should not have been preferred;

(iii) the preparation of potatoes and porridge does not constitute a main meal.

50. Having set aside the decision of the appeal tribunal on the bases set out above, there is no requirement to deal with the further grounds in considerable detail.
51. In relation to grounds (i) and (ii), however, it is important to note that the assessment of evidence is a matter for the appeal tribunal and a Social Security Commissioner must be wary of interfering with the conclusions of an appeal tribunal based on its evidential assessment.
52. More particularly, in relation to ground (i), in C14/02-03(DLA), Commissioner Brown, at paragraph 11, stated:

' … there is no universal rule that a Tribunal must always explain its assessment of credibility. It will usually be enough for a Tribunal to say that it does not believe a witness.'

53. Additionally, in R3/01(IB)(T), a Tribunal of Commissioners, at paragraph 22 repeated what the duty is:

'We do not consider that there is any universal obligation on a Tribunal to explain its assessment of credibility. We disagree with CSIB/459/97 in that respect. There may of course be occasions when this is necessary but it is not an absolute rule that this must always be done. If a Tribunal makes clear that it does not believe a claimant's evidence or that it considers him to be exaggerating this will usually be sufficient. The Tribunal is not required to give reasons for its reasons. There may be situations when a further explanation will be required but the only standard is that the reasons should explain the decision. It will, however, normally be a sufficient explanation for rejecting an item of evidence, including evidence of a party to an appeal, to say that the witness is not believed or is exaggerating.'

54. This reasoning was confirmed in CIS/4022/2007. After analysing a series of authorities on the issue of the assessment of credibility, including R3/01(IB)(T), the Deputy Commissioner (as he then was) summarised, at paragraph 52, as follows:

'In my assessment the fundamental principles to be derived from these cases and to be applied by tribunals where credibility is in issue may be summarised as follows: (1) there is no formal requirement that a claimant's evidence be corroborated – but, although it is not a prerequisite, corroborative evidence may well reinforce the claimant's evidence; (2) equally, there is no obligation on a tribunal simply to accept a claimant's evidence as credible; (3) the decision on credibility is a decision for the tribunal in the exercise of its judgment, weighing and taking into account all relevant considerations (e.g. the person's reliability, the internal consistency of their account, its consistency with other evidence, its inherent plausibility, etc, whilst bearing in mind that the bare-faced liar may appear wholly consistent and the truthful witness's account may have gaps and discrepancies, not least due to forgetfulness or mental health problems); (4) subject to the requirements of natural justice, there is no obligation on a tribunal to put a finding as to credibility to a party for comment before reaching a decision; (5) having arrived at its decision, there is no universal obligation on tribunals to explain assessments of credibility in every instance; (6) there is, however, an obligation on a tribunal to give adequate reasons for its decision, which may, depending on the circumstances, include a brief explanation as to why a particular piece of evidence has not been accepted. As the Northern Ireland Tribunal of Commissioners explained in R 3/01(IB)(T), ultimately "the only rule is that the reasons for the decision must make the decision comprehensible to a reasonable person reading it".'

55. In relation to ground (ii), in Quinn v Department for Social Development ([2004] NICA 22), the Court of Appeal emphasised that assessment of evidence and fact-finding role is one for the appeal tribunal. At paragraph 29, the Court stated:

'It is clear that the Tribunal considered Dr Manley's report since they refer to it in their findings and describe it as being less than helpful. The challenge to the Tribunal's attitude to the report cannot proceed on the basis that they ignored it; rather it must be either that they misconstrued it or they failed to give it sufficient weight. As to the latter of these two possibilities it is of course to be remembered that a view of the facts reached by a tribunal can only be interfered with by the Court of Appeal in limited and well-defined circumstances. Carswell LCJ described those circumstances in Chief Constable of the RUC v Sergeant A [2000] NI 261 at 273f as follows: -

"A tribunal is entitled to draw its own inferences and reach its own conclusions, and however profoundly the appellate court may disagree with its view of the facts it will not upset its conclusions unless—


(a) there is no or no sufficient evidence to found them, which may occur when the inference or conclusion is based not on any facts but on speculation by the tribunal (Fire Brigades Union v Fraser [1998] IRLR 697 at 699, per Lord Sutherland); or


(b) the primary facts do not justify the inference or conclusion drawn but lead irresistibly to the opposite conclusion, so that the conclusion reached may be regarded as perverse: Edwards (Inspector of Taxes) v Bairstow [1956] AC 14, per Viscount Simonds at 29 and Lord Radcliffe at 36."

56. At paragraph 4 of R(DLA) 3/04, Mrs Commissioner Brown had made similar remarks:

'I should state at the outset that the weight to be given to any evidence is completely a matter for the Tribunal. The weight to be given to an item of evidence is a matter of fact. That means that I can disturb it only if that conclusion as to weight is one which no reasonable Tribunal could have reached. Having examined Dr M...'s report I do not consider that the Tribunal's conclusions as to the weight to be given to it are such as no reasonable Tribunal could have reached.'

57. Accordingly, I would not necessarily have set aside the decision of the appeal tribunal on the basis of the first two grounds cited by the applicant.
58. In relation to ground (iii) I do not agree that the appeal tribunal had concluded that the preparation of potatoes and porridge constituted a main meal. Nonetheless, there is now detailed guidance available to all adjudicating authorities, decision-makers and appeal tribunals on the scope and nature of the test set out in section 72(1)(a)(ii) of the Social Security Contributions and Benefits (Northern Ireland) Act, as amended. A summary of that guidance is currently to be found at pages 146-150 of Volume 1 of Social Security Legislation 2008/2009.

Another aspect of the statement of reasons

59. On one page of the Statement of Reasons two significant paragraphs are repeated. This may have been due to the relevant text having been the subject of a 'cut and paste' word-processing software command, or other keyboard or computer error. There are mechanisms in place to permit drafts of statement of reasons to be proof-read and sufficient attention to detail should prevent untidy mistakes such as this from arising again.

Disposal

60. The decision of the appeal tribunal dated 30 May 2008 is in error of law.
61. 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.
62. 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. Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.

(Signed): K Mullan

COMMISSIONER

5 May 2009