Northern Ireland - Social Security and Child Support Commissioners' Decisions

 


[2009] NISSCSC C37_09_10(DLA) (4 November 2009)

Decision No: C37/09-10(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 15 September 2008
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. Having considered the circumstances of the case, I am satisfied that the appeal 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 15 September 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 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. 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 effect of the decision to set aside the decision of the appeal tribunal is that the appeal tribunal's decision to make an award of an entitlement to the lowest rate of the care component of disability living allowance (DLA) is also set aside. Accordingly, the issue of the entitlement of her child to DLA remains to be determined by another appeal tribunal. In accordance with the guidance set out below, 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 is a decision of the Department, dated 11 March 2008, which decided that the appellant's child was not entitled to DLA, from and including 13 July 2008, on a renewal claim. There had been a previous award of entitlement to the middle rate of the care component of DLA.
9. The appeal was received in the Department on 2 July 2008.
10. The appeal tribunal hearing took place on 15 September 2008. The appellant was present and was represented by her solicitor.
11. The appeal tribunal allowed the appeal in respect of the care component of DLA making an award of the lowest rate of that component for a fixed two year period.
12. On 28 November 2008 an application to set aside the decision of the appeal tribunal was received in the Appeals Service (TAS) from the appellant.
13. On 24 December 2008 the application to set aside the decision of the appeal tribunal was refused by the legally qualified panel member (LQPM).
14. On 12 January 2009 an application for leave to appeal to the Social Security Commissioner was received in TAS.
15. On 19 January 2009, the application for leave to appeal was refused by the LQPM.

Proceedings before the Social Security Commissioner

16. On 11 February 2009, a further application for leave to appeal to the Social Security Commissioner was received in the Office of the Social Security Commissioners and Child Support Commissioners (OSSC).
17. On 19 May 2009, observations on the application were sought from the Decision Making Services (DMS) unit of the Department.
18. The observations on the application were received in OSSC on 4 June 2009. DMS opposed the application on the grounds cited by appellant. It was submitted by DMS, however, that the decision of the appeal tribunal was in error of law on the basis of a further identified ground.
19. The observations from DMS were shared with the appellant and her nominated representative on 11 June 2009.
20. On 26 June 2009, further correspondence in reply to the observations from DMS was received in OSSC from the appellant.

Errors of law

21. 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.
22. 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 submissions of the parties

23. In the application for leave to appeal to the Social Security Commissioner, the applicant submitted that the decision of the appeal tribunal was in error of law on the basis that:

(i) the decision was unfair in that DLA was disallowed on the evidence from her daughter's school and that evidence had subsequently been updated; and

(ii) the tribunal did not take into account that (the claimant) cannot dress or wash herself or do what a child the same age without a disabling condition can do.

24. In their observations on the application for leave to appeal to the Social Security Commissioner, DMS opposed the application on the grounds cited by the appellant. As was noted above, however, DMS submitted that the decision of the appeal tribunal was in error of law on the basis of another identified ground. That ground was identified as follows.

'In Mongan v Department for Social Development {2005} NICA 16 (…) the Court of Appeal was dealing with a case where the appellant had made a claim for DLA claiming that she suffered from arthritis and severe asthma that caused breathlessness; that she was unable to walk very far without severe discomfort; and that she often became light-headed and needed to be accompanied when outdoors adding that on some occasions she would fall and that if she fell she required help to get up.

The claim was disallowed and the appellant sought a review of the decision stating that she felt that she should have been awarded some 'care component and mobility' and again claiming that she needed help to get around.

The application for review was refused and that decision was appealed. The appeal tribunal dismissed the appeal. In respect of the higher rate mobility component, the tribunal held that the appellant was not virtually unable to walk and also recorded that "no claim was presented in relation to the lower rate mobility component".

The appellant appealed to the Commissioner submitting that the tribunal should have considered the lower rate mobility component even if it had not been expressly raised. The Commissioner dismissed the appeal holding, among other things, that no claim for the lower rate had been raised before the tribunal.

The case stated to the Court of Appeal raised a number of questions seeking the opinion of the court as to whether the Commissioner was correct in law in making certain findings. As far as is relevant to this case, the Court of Appeal was asked whether the Commissioner was correct in law in –

"deciding that the tribunal was entitled to conclude that the entitlement to the lower rate of the mobility component of DLA was not an issue in the appeal before it."

In paragraph 25 of the judgment it was held –

"….. the question at this stage is not whether there was sufficient evidence to support a claim for the lower rate, simply whether there was enough evidence for it to be an issue. In our view the form submitted on behalf of the appellant contained a significant case for the lower rate mobility component…..

In the record of proceedings for the care component it is recorded that (the claimant's) representative asked the tribunal to consider entitlement to the middle rate care component whereas an examination of the decision in respect of the mobility component shows that it is recorded that the mobility component was not in issue with no explanation as to why that was the case.

In the claim form received on 29 January 2008, at pages 6 and 7 (the claimant's mother) indicated that (the claimant) had mobility needs. I submit, and in line with the reasoning in the Mongan case, there was enough evidence before the tribunal in the form of the claim form to have made the mobility component an issue and it was incumbent on the tribunal to consider entitlement to that component or at least give reasons why the component was not an issue. I also submit that by failing to do so the tribunal erred in law.'

The inquisitorial role of the appeal tribunal

25. The appeal tribunal's inquisitorial role has been the subject of invigorated analysis by the appellate authorities in recent years.
26. In Kerr v Department for Social Development ([2004] UKHL 23), Baroness Hale analysed the appeal tribunal's inquisitorial role, at paragraphs 61 to 62 of the decision:

'Ever since the decision of the Divisional Court in R v Medical Appeal Tribunal (North Midland Region), Ex p Hubble [1958] 2 QB 228, it has been accepted that the process of benefits adjudication is inquisitorial rather than adversarial. Diplock J as he then was said this of an industrial injury benefit claim at p 240:

"A claim by an insured person to benefit under the Act is not truly analogous to a lis inter partes. A claim to benefit is a claim to receive money out of the insurance funds . . . Any such claim requires investigation to determine whether any, and if so, what amount of benefit is payable out of the fund. In such an investigation, the minister or the insurance officer is not a party adverse to the claimant. If analogy be sought in the other branches of the law, it is to be found in an inquest rather than in an action."'

27. In Mongan v Department for Social Development ([2005] NICA 16), the Lord Chief Justice had the following to say, at paragraphs 14 to 18:

'[14] The terms of article 13(8)(a) of the 1998 Order make it clear that issues not raised by an appeal need not be considered by an appeal tribunal. The use of the phrase "raised by the appeal" should be noted. The use of these words would tend to suggest that the tribunal would not be absolved of the duty to consider relevant issues simply because they have been neglected by the appellant or her legal representatives and that it has a role to identify what issues are at stake on the appeal even if they have not been clearly or expressly articulated by the appellant. Such an approach would chime well with the inquisitorial nature of the proceedings before the tribunal.

[15] It is now well established that appeal tribunal proceedings are inquisitorial in nature – see, for example the recent Decision of a Tribunal of Social Security Commissioners CIB/4751/2002, CDLA 4753/2002, CDLA 4939/2002 and CDLA 514/2002. Mr McAlister relied on this decision, however, to support his contention that the tribunal was not required to consider matters that had not been raised by the parties to the proceedings. In that case it was held that 'raised by the appeal' should be interpreted to mean "actually raised at or before the hearing by one of the parties." In so far as the decision suggests that an appeal tribunal would not be competent to inquire into a matter that arose on an appeal simply because it was not expressly argued by one of the parties to the appeal, we could not agree with it. It appears to us that the plain meaning of the words of the statute, taken together with the inquisitorial nature of the appeal hearing, demand a more proactive approach. If, for instance, it appeared to the tribunal from the evidence presented to it that an appellant might be entitled to a lower level of benefit than that claimed, its inquisitorial role would require a proper investigation of that possible entitlement.

[16] Mr McAlister suggested that even if the tribunal had a duty to consider issues not explicitly raised, this was a limited responsibility and he referred to an unreported decision (C5/03- 04(IB)) in which Commissioner Brown held that the tribunal was not required "to exhaustively trawl the evidence to see if there is any remote possibility of an issue being raised by it." We accept that there must be limits to the tribunal's responsibility to identify and examine issues that have not been expressly raised and we agree with the observation of Commissioner Brown. But as she said in a later passage in the same case, issues "clearly apparent from the evidence" must be considered.

[17] Whether an issue is sufficiently apparent from the evidence will depend on the particular circumstances of each case. Likewise, the question of how far the tribunal must go in exploring such an issue will depend on the specific facts of the case. The more obviously relevant an issue, the greater will be the need to investigate it. An extensive inquiry into the issue will not invariably be required. Indeed, a perfunctory examination of the issue may often suffice. It appears to us, however, that where a higher rate of benefit is claimed and the facts presented to the tribunal suggest that an appellant might well be entitled to a lower rate, it will normally be necessary to examine that issue, whether or not it has been raised by the appellant or her legal representatives.

[18] In carrying out their inquisitorial function, the tribunal should have regard to whether the party has the benefit of legal representation. It need hardly be said that close attention should be paid to the possibility that relevant issues might be overlooked where the appellant does not have legal representation. Where an appellant is legally represented the tribunal is entitled to look to the legal representatives for elucidation of the issues that arise. But this does not relieve them of the obligation to enquire into potentially relevant matters. A poorly represented party should not be placed at any greater disadvantage than an unrepresented party.'

28. The inquisitorial role of the appeal tribunal was also considered by a Tribunal of Commissioners in Great Britain in R(IS) 17/04. At paragraph 26 of the decision, it was noted that:

'It is not in our judgment open to doubt that, as an appeal tribunal under the Social Security Act 1998 hearing the claimant's appeal against the departmental determination revoking her entitlement to benefit, Mr Warren was sitting as an "inquisitorial" tribunal. By that we mean his function was to carry out a complete reconsideration and redetermination for himself of the facts and merits of the decision under appeal, the purpose being to ascertain and determine the true amount of social security benefit to which the claimant was properly entitled: see R v. Deputy Industrial Injuries Commissioner ex parte Moore 1 QB 456 and R v. Medical Appeal Tribunal ex parte Hubble 2 QB 228 referred to above; the Commissioners' case R(S) 4/82 (especially paragraph 25) and the recent decision of a Tribunal of Commissioners in CIB/4751/2002 [reported as R(IB) 2/04] (especially paragraph 32); and the further recent reaffirmation of the principle in Kerr v. Department for Social Development (Northern Ireland) UKHL 23 [R 1/04 (SF) (especially at paragraph 14 per Lord Hope, and paragraph 61 per Lady Hale). In our judgment this is and remains a principle of general application to all proceedings in such tribunals. We do not accept Mr Seddon's submission that it is in some way disapplied or diluted by the existence of further rights of appeal, confined to points of law, to the higher courts; or by the nature of the issues in a given appeal (for example, whether a case concerns entitlement or overpayment).'

29. In Hooper v Secretary of State for Work and Pensions ([2007] EWCA Civ 495), also reported as R(IB) 4/07, the inquisitorial role of the appeal tribunal, as set out in Kerr was confirmed by the Court of Appeal for England and Wales, and the further analysis of the Lord Chief Justice in Mongan was approved.

The ambit of the inquisitorial role

30. The traditional view of the appeal tribunal's inquisitorial role is related to the duty, as was noted at paragraph 26 of the decision in R(IS) 17/04, and following a review of all of the relevant authorities, 'to ascertain and determine the true amount of social security benefit to which the claimant was properly entitled'. In C15/08-09(DLA), I determined that this aspect of the inquisitorial role included a requirement to undertake a full investigation of the validity of an existing award and determine whether that award is correct. In making that determination, I disagreed with the views of Commissioner Rowland in CDLA/884/2008, who had stated that an appeal tribunal is at liberty to draw any doubts about the validity of the decision to the Department's attention in the decision notice and can arrange for the parties to be sent a copy of the record of proceedings without them having to request it, such action permitting the Department to consider a supersession or revision.
31. The inquisitorial role has been interpreted in another way, however, as including the requirement for the appeal tribunal to provide support to the parties to the proceedings in order to ensure full participation in the appeal process to the fullest possible extent and to enable the parties to present all aspects of their case as fully and completely as possible. In this context, the inquisitorial role is sometimes called the 'enabling' role.
32. In my view, the enabling role takes on its greatest significance in the following situations:

(i) oral appeals where the appellant is unrepresented, and where the Department may be represented;

(ii) oral appeals where the appellant is unrepresented and does not make an appearance, and where the Department may be represented; and

(ii) paper cases where the appellant is unrepresented.

33. In these situations, and in a balanced and objective way, the appeal tribunal is under a duty to explore all of the relevant issues, and assess the evidence linked to those relevant issues, even where some or all of those issues have not been raised by the appellant. Further, the appeal tribunal is under a duty to note, in any statement of reasons (SORs) for the appeal tribunal's decisions, that it has addressed all relevant issues, assessed the evidence linked to those issues, found facts with respect to those issues and made an appropriate decision, related to entitlement to the benefit at issue.
34. Balance also means that the appeal tribunal does not require, as was noted by Mrs Commissioner Brown in C5/03-04(IB), at paragraph 21 "to exhaustively trawl the evidence to see if there is any remote possibility of an issue being raised by it." It is often the case, however, that unrepresented claimants to social security benefits do not understand the subtleties of the conditions of entitlement to that benefit. In any claim to a disability benefit, or appeal against an adverse Departmental decision with respect to that claim, the claim or appeal is often couched in general assertions with respect to the disability, and may not be specifically related to the conditions of entitlement as understood by the decision-maker or appeal tribunal.
35. Accordingly, the appeal tribunal must be alert to the objective consideration of specific issues even though these may not have been raised by the appellant. The appeal tribunal will have to go beyond the detail, however general, of the appeal letter, and consider all of the evidence before it, which will usually include evidence relating to the initial claim to the benefit, and determine all issues which are relevant to the appeal.
36. What is the ambit of the inquisitorial or enabling role where the appellant is represented? This was precisely the situation in Mongan. In my view, the principles set out in Mongan should not lead to the diminution or dilution of good advocacy before the appeal tribunal. A good advocate will seek to persuade an appeal tribunal that the evidence before it is supportive of entitlement to all or part of the relevant social security benefit – a certain component at a certain rate. Good advocacy includes, however, the concession by the advocate that the evidence before the appeal tribunal does not support entitlement to all or part of the relevant benefit – again a certain component at a certain rate. Many of the representatives who appear before appeal tribunals on behalf of their clients have the expertise to make relevant and appropriate submissions, including concessions, to the appeal tribunal concerning the issues arising in the appeal. That expertise and experience should not, in my view, be lost by an interpretation of Mongan which suggests that there can be no reliance by an appeal tribunal on concessions made by a representative.
37. In my view, the duties set out in Mongan can be fulfilled by an appeal tribunal:

(i) inviting submissions from the representative which submissions may include concessions by the representative concerning issues arising in the appeal;

(iii) clarifying the legal and evidential basis on which any

concession is based;

(iii) ensuring that the appellant agrees with the submissions, and any concession made by the representative;

(iv) adducing any further evidence which may be necessary to assist in the appeal tribunal's consideration of the submission;

(v) most importantly, considering the submission which has been made, and determining whether, on the basis of its independent and objective assessment of the submission, the appeal tribunal agrees with it; and

(vi) recording the appeal tribunal's conclusions on (i) to (v) above both in the record of proceedings (ROPs) and in any SORs for the appeal tribunal's decision.

38. While the procedure which is being recommended may seem detailed and cumbersome, it is submitted that it should not take an appeal tribunal long to consider any submission made by the representative, to make its determination in respect of that submission, nor to record the operation of the procedure in the relevant appeal tribunal documentation.
39. It is important to note that the decision of the appeal tribunal, and the SORs for the appeal tribunal's decision, are often taken up with a detailed analysis of why the appeal tribunal has not accepted the submission by the appellant and/or the appellant's representative, that the conditions of entitlement to the relevant social security benefit are not satisfied. In my view, there should be a parallel consideration, determination and record of the appeal tribunal's findings in respect of any concession made by the appellant or representative as to why any concession that the rules, or part of the rules of entitlement are not satisfied.
40. It is essential that all representatives are fully prepared for the appeal tribunal hearing, and that oral and written submissions to the appeal tribunal are detailed, reasoned and based on relevant and available evidence. Regrettably, and as was recognised in Mongan, representation before appeal tribunals varies in quality. Failure to adhere to appropriate standards of advocacy may be due to lack of necessary preparation, or lack of knowledge of, or misunderstanding of the issues arising in the appeal. Appeal tribunals, in adhering to the principles set out above, must be alert to the standard of representation before them. It will be necessary, in certain cases, for the appeal tribunal to undertake a more rigorous examination of submissions, including concessions made by certain representatives. That does not negate, however, the requirement on representatives to ensure that they adhere to the highest possible standards.

How did the appeal tribunal in the instant case address the issues arising in the appeal?

41. In the papers before me, there is a separate ROPs for the care and mobility components of DLA. The ROPs for the care component are completed in detail. There is a record of all of the documents which were considered by the appeal tribunal, which included the appeal submission prepared by the Department. Additionally, there is a note of the submissions made by the representative and the oral evidence from the applicant. Included within the submission made by the representative is the following statement:

'Look at middle rate care – as previous award'

By comparison, the ROPs for the mobility component are sparse. Under the heading of 'Documents Considered' there is recorded the statement:

'Not in issue'

42. From what has been recorded by the appeal tribunal, it is impossible for me to know the detail of what, if any, submission was made by the applicant's representative, with respect to all of the issues arising in the appeal. It may well have been the case that the applicant's representative had made a submission that he wished the appeal tribunal to consider entitlement to the middle rate of the care component of DLA, and, more significantly, that he conceded that, based on the evidence before the appeal tribunal, there was no entitlement to the mobility component of DLA. It may also have been the case that the appeal tribunal, having considered the submission, and assessed the evidence in respect of it, agreed with any concession.
43. As was noted by DMS, in the written observations on the application for leave to appeal to the Social Security Commissioner:

'… it is recorded that the mobility component was not in issue with no explanation as to why that was the case.

In the claim form received on 29 January 2008, at pages 6 and 7 (the claimant's mother) indicated that (the claimant) had mobility needs. I submit, and in line with the reasoning in the Mongan case, there was enough evidence before the tribunal in the form of the claim form to have made the mobility component an issue and it was incumbent on the tribunal to consider entitlement to that component or at least give reasons why the component was not an issue.'

44. The most important of the submissions made by DMS relates to the failure by the appeal tribunal to record why entitlement to the mobility component of DLA was not considered by it.
45. Looking again at the principles which I set out at paragraph 37 above, I conclude that the appeal tribunal failed adequately to record any submission with respect to the mobility component of DLA, and failed to clarify and record the legal and evidential basis on which any concession that the mobility component of DLA was not being sought was based. Further, the appeal tribunal failed to record that it had clarified with the applicant that she agreed with the submission, and any concession made by the representative. Further, and most importantly, the appeal tribunal failed to record that it had considered any submission which had been made with respect to the mobility component of DLA, and its determination as to whether, on the basis of its independent and objective assessment of the submission, it agreed with it.

The applicant's other grounds for appealing

46. Having found that the decision of the appeal tribunal was in error of law, I do not have to consider the appellant's other grounds for appealing. I would indicate, however, that I would not have found the decision of the appeal tribunal to be in error of law on the other grounds cited by the appellant.

Disposal

47. The decision of the appeal tribunal dated 15 September 2008 is in error of law.
48. 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.
49. 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 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.
50. I direct that the parties to the proceedings and the newly constituted

appeal tribunal take into account the following:

(i) the decision under appeal is a decision of the Department, dated 11 March 2008, which decided that the applicant was not entitled to DLA from and including 13 July 2008;

(ii) the Department is directed to provide details of any subsequent claims to DLA and the outcome of any such claims to the appeal tribunal to which the appeal is being referred. The appeal tribunal is directed to take any evidence of subsequent claims to DLA into account in line with the principles set out in C20/04-05(DLA);

(iii) 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; and

(iv) 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.

(Signed): K Mullan

COMMISSIONER

4 November 2009