Northern Ireland - Social Security and Child Support Commissioners' Decisions

 


[2009] NISSCSC C32_08_09(DLA) (28 July 2009)

Decision No: C32/08-09(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 18 June 2008
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. The decision of the appeal tribunal dated 18 June 2008 is not in error of law. Accordingly, the appeal to the Social Security Commissioner does not succeed.
2. The decision of the appeal tribunal was to the effect that the decision of the Department dated 5 November 2007, as reconsidered but not changed on 7 January 2008, was correct and should be upheld. The decision of the Department dated 5 November 2007 was not to supersede an earlier decision of the Department dated 18 December 2006 as the decision-maker was not satisfied, on the evidence, that that there were grounds to do so. In turn, the decision of the Department, dated 18 December 2006, was to the effect that there were no grounds to supersede yet an earlier decision of the Department dated 24 February 2003. The decision of the Department dated 24 February 2003, was that the appellant satisfied the conditions of entitlement to the middle rate of the care component of disability living allowance (DLA) from and including 3 March 2003.
3. Accordingly, the net effect of the disallowance of the appeal to the Social Security Commissioner is that the appellant continues to be entitled to the middle rate of the care component of DLA, but has no entitlement to the mobility component of DLA.

Background

4. The decision-making process giving rise to the appeal before the appeal tribunal is as set out above.
5. The decision of the appeal tribunal dated 18 June 2008 was to the effect that the decision of the Department dated 5 November 2007, as reconsidered but not changed on 7 January 2008, was correct and should be upheld.
6. On 19 August 2008, an application for leave to appeal was received in the Appeals Service.
7. On 26 August 2008, the application for leave to appeal was refused by the legally qualified panel member (LQPM).

Proceedings before the Social Security Commissioner

8. On 16 September 2008, a further application for leave to appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners.
9. On 7 October 2008 observations were sought from Decision Making Services (DMS) and these were received on 7 November 2008. DMS opposed the application.
10. Observations were shared with the applicant and his representative on 20 November 2008.
11. On 1 April 2009 I granted leave to appeal. In granting leave to appeal I stated, as a reason, that an arguable issue had arisen as to the extent to which the appeal tribunal considered whether the decision-maker had grounds to supersede an earlier decision of the Department.
12. Also on 1 April 2009, I sought further observations from DMS on the effect of the decisions in CSDLA/251/2007 and C12/08-09(DLA) on the issues arising in the appeal.
13. On 28 April 2009, further observations were received from DMS in response to the request dated 1 April 2009.
14. No further observations were received from the applicant, or his representative, despite both having been given the opportunity to do so.

Errors of law

15. 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.
16. 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 cited errors in the present case

17. In the application for leave to appeal to the Social Security Commissioner the applicant's representative cited five grounds on which it was submitted that the decision of the appeal tribunal was in error of law. In summary, these were:

(i) the appeal tribunal had not provided adequate reasons for rejecting certain medical evidence which was before it;

(ii) the appeal tribunal did not address submissions made by the representative concerning certain conclusions in a report of an examining medical practitioner (EMP);

(iii) the appeal tribunal did not apply the correct legislative test with respect to entitlement to the higher rate of the mobility component of DLA;

(iv) the appeal tribunal misinterpreted the results of an MRI scan; and

(v) the appeal tribunal had not provided reasons for rejecting evidence relating to entitlement to the lower rate of the mobility component of DLA.

18. As was noted above DMS opposed the appeal on all grounds cited by the applicant's representative. Additionally, and in response to the further request for observations on the specific issue, DMS submitted that the appeal tribunal had addressed the supersession issue in the correct manner.

Analysis

19. The decision under appeal to the appeal tribunal was a decision of the Department dated 5 November 2007, as reconsidered but not changed on 7 January 2008. The decision of the Department, dated 5 November 2007, was not to supersede an earlier decision of the Department dated 18 December 2006, as the decision-maker was not satisfied, on the evidence, that that there were grounds to do so. In turn, the decision of the Department, dated 18 December 2006, was to the effect that there were no grounds to supersede yet an earlier decision of the Department dated 24 February 2003. The decision of the Department dated 24 February 2003 was that the appellant satisfied the conditions of entitlement to the middle rate of the care component of DLA from and including 3 March 2003.
20. The letter of appeal against the decision dated 5 November 2007 addresses problems with mobility. In the appeal submission, at Tab No. 11, is a copy of a Form 'DLA 434 SUMM(A)', which was completed either by or on behalf of the appellant. The section of this form relating to the care component of DLA is marked 'Not in Dispute'. Also in the appeal submission, at page 9, the appeals writer submits that the appellant was not disputing his entitlement to the middle rate of the care component of DLA, and makes no further reference to that entitlement.
21. It is clear that in the proceedings before the appeal tribunal the principal focus was on the mobility component of DLA. The record of proceedings for the appeal tribunal hearing records submissions and evidence with respect to the mobility component. The statement of reasons for the appeal tribunal's decision begins with the statement:

'High rate mobility component/low rate mobility component was sought.'

Accordingly, it is clear that no consideration was given to entitlement to the care component of DLA.

22. The first ground cited by the appellant's representative relates to the adequacy of the appeal tribunal's reasons for rejecting certain medical evidence which was before it. More specifically, the appellant's representative makes reference to a medical report from the appellant's general practitioner (GP), which was included within the appeal submission, as Tab No. 12, and two reports in the appellant's GP records. The appellant's representative submits that the appeal tribunal has failed to provide adequate reasons for rejecting this evidence.
23. The record of proceedings for the appeal tribunal's decision records that the appeal tribunal had before it the appellant's GP records. Thereafter, the record of proceedings records, amongst other things, the submissions made by the appellant's representative. These submissions include references to the reports now cited by the appellant's representative. More significantly, the statement of reasons for the appeal tribunal's decision includes a detailed reference to the report from the appellant's GP, referred to by the appellant's representative, and which had included findings and conclusions similar to those set out in the other reports.
24. 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. Having analysed the statement of reasons for the appeal tribunal's decision, I am wholly satisfied that the appeal tribunal undertook a rigorous and rational assessment of all of the evidence before it. The appeal tribunal gave a sufficient explanation of its assessment of the evidence, explaining why it took the particular view of the evidence which it did. Any conflict in the evidence before the appeal tribunal has been clearly resolved and explained.
25. The appeal tribunal made sufficient findings of fact, relevant to its decision, all of which are wholly sustainable on the evidence and all of which are supported by relevant evidence. None of the appeal tribunal's findings are irrational, perverse or immaterial.
26. The submission made by the appellant's representative with respect to the other medical evidence which was before the appeal tribunal concentrates on the assertion that those other reports refer to walking distances shorter than a distance which the appeal tribunal appear to have accepted. It is important to note that distance is but one factor to be taken into account in assessing whether an individual satisfies the conditions of entitlement to the higher rate of the mobility component of DLA. In this respect the comments of Commissioner Rowland in CDLA/4388/1999, a Great Britain case, at paragraph 4, are apposite:

'Too much weight tends to be put upon the distance a person can walk when that is but one of four criteria and I suspect that is because estimates of distance are considered to be precise. In reality, a precise finding as to the distance a person can walk is no more attainable than a precise finding as to the speed of walking. Estimates are usually of doubtful accuracy and walking ability may be variable.'

27. In the instant case, the appeal tribunal had stated that even based on the appellant's own evidence, it considered that the appellant was not unable or virtually unable to walk, and therefore did not satisfy the relevant test for entitlement to the higher rate of the mobility component of DLA.
28. Accordingly, I reject the first ground cited by the appellant's representative.
29. The second ground cited by the appellant's representative is that appeal tribunal did not address submissions made by the representative concerning certain conclusions in a report of an EMP. The report of the EMP is attached to the appeal submissions as Tab No. 13. The submission with respect to the EMP report is similar to that which was made in relation to the first cited ground – namely that the appeal tribunal did not explain why it accepted the conclusions and findings of the EMP with respect to mobility and, more importantly, the distance over which the appellant could walk.
30. It is clear from the record of proceedings for the appeal tribunal hearing that the submissions made by the appellant's representative with respect to the report of the EMP. For example, under the heading 'Representative', the record of proceedings notes:

'The Examining Medical Practitioner's finding of 75 metres is plucked out of air.'

31. It cannot, therefore, be argued that the submissions of the appellant's representative were not noted. More importantly, and as noted in relation to the first ground, I am again wholly satisfied that the appeal tribunal undertook a rigorous assessment of all of the evidence which was before it. It is important to re-note that the appeal tribunal had stated that even based on the appellant's own evidence, it considered that the appellant was not unable or virtually unable to walk, and therefore did not satisfy the relevant test for entitlement to the higher rate of the mobility component of DLA. That was a conclusion which the appeal tribunal was entitled to make, and it was not one which was based solely on the evidence contained within the EMP report.
32. Accordingly, I also reject the second ground cited by the appellant's representative.
33. The third ground cited by the appellant's representative is that the appeal tribunal did not apply the correct legislative test with respect to entitlement to the higher rate of the mobility component of DLA.
34. The legislative provisions for the mobility component of DLA are to be found in section 73 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 and Regulation 12 of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992, all as amended.
35. Section 73(1) of the 1992 Act provides that:

'73.—(1) Subject to the provisions of this Act, a person shall be entitled to the mobility component of a disability living allowance for any period in which he is over the relevant age and throughout which—

(a) he is suffering from physical disablement such that he is either unable to walk or virtually unable to do so;

(b) he falls within subsection (2) below;

(c) he falls within subsection (3) below; or

(d) he is able to walk but is so severely disabled physically or mentally that, disregarding any ability he may have to use routes which are familiar to him on his own, he cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time.'

36. Regulation 12 of the 1992 Regulations provides that:

'Entitlement to the mobility component

12.—(1) A person is to be taken to satisfy the conditions mentioned in section 73(1)(a) (unable or virtually unable to walk) only in the following circumstances—

(a) his physical condition as a whole is such that, without having regard to circumstances peculiar to that person as to place of residence or as to place of, or nature of, employment—

(i) he is unable to walk,

(ii) his ability to walk out of doors is so limited, as regards the distance over which or the speed at which or the length of time for which or the manner in which he can make progress on foot without severe discomfort, that he is virtually unable to walk, or

(iii) the exertion required to walk would constitute a danger to his life or would be likely to lead to a serious deterioration in his health; or

(b) he has had both legs amputated at levels which are either through or above the ankle, or he has one leg so amputated and is without the other leg, or is without both legs, to the same extent as if it, or they, had been so amputated.'

37. The submissions of the appellant's representative appear to relate to the requirements of regulation 12(i)(a)(ii).
38. In relation to that submission, I would find as follows. Firstly, in C44/97(DLA), and in relation to regulation 12(1)(a)(ii), Chief Commissioner Martin noted the following, at paragraphs 14 to 16:

'14. It seems to me that the Tribunal in the present case also appreciated the regulation 12(1)(a)(ii) test and, in the context, the finding that the claimant is able to walk a reasonable distance with a reasonable gait at a reasonable speed is a proper finding and one that it perfectly acceptable on the evidence before the Tribunal.

15. Helpful guidance is also available from Chief Commissioner Chambers in C3/87(MOB), a case concerning mobility allowance which is directly relevant to the present case. In that case at paragraph 7 Chief Commissioner Chambers stated as follows:-

"... In my view the decision of the Court of Appeal should not be interpreted as requiring the Tribunal to provide answers to the four questions raised by the Regulation in terms of a distance, a speed, a time and a description of the child's manner of walking. Undoubtedly, those questions must be specifically addressed and answers given; but to require the Tribunal to attempt to quantify distances, speeds, etc. would be to impose an impossible burden upon them. It is, moreover, difficult to see what purpose it would serve to provide such answers; as it would remain for the Tribunal to decide whether or not the child was unable or virtually unable to walk. If there are to be limits of distance, speed, etc marking the level below which claimants qualify for mobility allowance, it is for Parliament or the Rule-making authority to set them; not the Medical Appeal Tribunal. ..."

The Court of Appeal decision referred to by the Chief Commissioner is the unreported case of Raymond Murray (a minor) v DHSS (1987) in which Kelly LJ gave the judgment of the Court.

16. Applying this approach to the present case I conclude that it is not necessary for the Tribunal to attempt to quantify distances, speeds, manner of gait or level of discomfort. The Tribunal has directed its mind to the statutory test and has come to a conclusion and a decision that could not be described as perverse and in the circumstances it is not open to me to interfere with it.'

39. Secondly, and as in C44/97(DLA), I am satisfied that the appeal tribunal has directed its mind to the statutory test. Further, its conclusions and decision could not be described as perverse, and I should not interfere with them.
40. Accordingly, I also reject the third ground cited by the appellant's representative.
41. The fourth ground relied on by the appellant's representative is that the appeal tribunal misinterpreted the results of an MRI scan. In the statement of reasons for the appeal tribunal's decision it is noted that 'MRI scan of the back in April 2008 showed only minor degenerative changes.' The argument of the appellant's representative is that the changes shown up by the scan were more significant than found by the appeal tribunal.
42. An appeal tribunal hearing and determining an appeal with respect to DLA is expert. It is made up of a LQPM, a medically qualified panel member and a disability qualified panel member. The appeal tribunal's duty to assess the evidence contained in the report of the MRI scan was part of its overall duty with respect to the assessment of the evidence before it. In assessing technical medical evidence an appeal tribunal will utilise all its expertise and experience to arrive at its conclusions with respect to that evidence. In relation to its conclusions with respect to the evidence contained within the report of the MRI scan, I cannot agree that those conclusions were irrational or perverse.
43. Accordingly, I also reject this ground.
44. The final ground relied on by the appellant's representative was that the appeal tribunal had not provided reasons for rejecting evidence relating to entitlement to the lower rate of the mobility component of DLA. More particularly, the appellant's representative has submitted that there was evidence contained within the report of the appellant's GP, at Tab No.12, of the appeal submission and in the report of the EMP, at Tab No.13, which was supportive of an entitlement to the lower rate of the mobility component, and which the appeal tribunal has not given an adequate explanation for rejecting.
45. In the report of the GP at page 6, it is noted that:

'He needs constant supervision, reassurance and support to prevent alcohol misuse, self-neglect, self-harm.'

46. Further, at page 5 of the report, under question 6 which, in part, asks for details of insight and awareness of danger, the answer provided is 'Normal'.
47. At page 15 of the report of the EMP, the EMP is asked to address the issue of 'evidence to support your opinion on ability to walk'. At part 5 of page 15, which is headed 'Guidance or supervision out of doors on unfamiliar routes', under the sub-heading 'Mental health factors', the EMP has noted 'Encouragement/Reassurance'.
48. In relation to the evidence from the appellant's GP, it is important to note that the cited quotation was contained within a section relating to the long-term complications of alcohol/substance misuse, and was not specifically directed towards nor did it address the factors linked to the legislative tests for entitlement to the lower rate of the mobility component of DLA.
49. Further, and the same principles apply to the evidence contained within the EMP report, the suggestion in both pieces of evidence is that the appellant may require encouragement and reassurance. In C21/01-02(DLA), at paragraph 7, Commissioner Brown outlined the difference between a requirement to be accompanied out of doors, and the legislative test relating to the requirement for guidance or supervision:

'The standard is not whether it is reasonable or indeed prudent to be accompanied. The standard is whether it would be unreasonable to expect the claimant to walk out of doors without guidance or supervision most of the time. More than mere accompaniment is required. More than a mere reasonable requirement for guidance or supervision is required. It could be reasonable for a person to seek supervision when on unfamiliar routes but equally reasonable for that person to walk on such routes without such supervision. To satisfy the statutory conditions it must be unreasonable to expect the claimant to walk without guidance or supervision most of the time when on unfamiliar routes.'

50. Applying those principles to the instant case, the appeal tribunal determined that there was no evidence that the appellant required guidance and supervision while walking out of doors. The appeal tribunal could, in my view, have arrived at that conclusion while also accepting that the appellant had a reasonable requirement for reassurance.
51. Accordingly, I also reject this final ground cited by the appellant's representative.

The supersession issue

52. As was noted above, in granting leave to appeal I stated, as a reason, that an arguable issue had arisen as to the extent to which the appeal tribunal considered whether the decision-maker had grounds to supersede an earlier decision of the Department. In respect of this reason, I sought further observations from DMS on the effect of the decisions in CSDLA/251/2007 and C12/08-09(DLA) on the issues arising in the appeal.
53. The decision under appeal to the appeal tribunal was a decision of the Department dated 5 November 2007, as reconsidered but not changed on 7 January 2008. The decision of the Department, dated 5 November 2007, was not to supersede an earlier decision of the Department dated 18 December 2006, as the decision-maker was not satisfied, on the evidence, that that there were grounds to do so. In turn, the decision of the Department, dated 18 December 2006, was to the effect that there were no grounds to supersede yet an earlier decision of the Department dated 24 February 2003. The decision of the Department, dated 24 February 2003, was that the appellant satisfied the conditions of entitlement to the middle rate of the care component of DLA from and including 3 March 2003.
54. In its decision notice and in its statement of reasons, the appeal tribunal noted that 'There were no grounds to supersede the decision of the [sic] 18.12.2006.' The decision notice went on to record that there was no entitlement to either rate of the mobility component of DLA.
55. Strictly speaking, confirmation of the decision under appeal would lead to a conclusion that the decision of the Department dated 5 November 2007, was correct. In turn that would mean that the decision-maker was correct not to supersede, or was correct in a refusal to supersede, an earlier decision of the Department dated 18 December 2006, as the decision-maker was not satisfied, on the evidence, that that there were grounds to do so.
56. I am satisfied, however, that the appeal tribunal had the supersession issue in its mind throughout its consideration of the appeal, and was aware of the correct legal and evidential issues relating to the decision under appeal. The decision dated 5 December 2007, is attached to the appeal submission as Tab No.14. It reads, in part, as follows:

'I am giving a decision not to supersede the decision of the decision maker dated 18.12.06 as I am not satisfied by fresh evidence that there are grounds to do so.'

57. Reading the appeal tribunal's decision notice and statement of reasons as a whole I am satisfied that the appeal tribunal was also deciding that the decision dated 18 December 2006 could not be superseded as it was not satisfied that there were grounds to do so.

Disposal

58. The decision of the appeal tribunal dated 18 June 2008 is not in error of law. Accordingly, the appeal to the Social Security Commissioner does not succeed.
59. The decision of the appeal tribunal was to the effect that the decision of the Department dated 5 November 2007, as reconsidered but not changed on 7 January 2008, was correct and should be upheld. The decision of the Department dated 5 November 2007, was not to supersede an earlier decision of the Department dated 18 December 2006, as the decision-maker was not satisfied, on the evidence, that there were grounds to do so. In turn, the decision of the Department dated 18 December 2006, was to the effect that there were no grounds to supersede yet an earlier decision of the Department dated 24 February 2003. The decision of the Department dated 24 February 2003, was that the appellant satisfied the conditions of entitlement to the middle rate of the care component of DLA from and including 3 March 2003.
60. Accordingly, the net effect of the disallowance of the appeal to the Social Security Commissioner is that the appellant continues to be entitled to the middle rate of the care component of DLA, but has no entitlement to the mobility component of DLA.

(signed): K Mullan

Commissioner

28 July 2009