Decision No:  C42/09-10(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 16 September 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 16 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. 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, and 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 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. 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.     On 31 March 2008 a decision-maker of the Department decided that the appellant was not entitled to DLA from and including 8 July 2008. Following receipt of a further letter disputing the decision, the decision dated 31 March 2008 was looked at again on 23 April 2008 but was not changed. Further evidence to support the claim to DLA was subsequently received in the Department on 23, 28 and 30 April 2008. Finally, on 6 May 2008, a letter of appeal against the decision dated 31 March 2008 was received in the Department. On 19 May 2008, the decision-maker looked again at the decision dated 31 March 2008 but did not change it.

 

9.     Following an earlier adjournment of the appeal, the substantive oral hearing took place on 16 September 2008. The appellant was not present at the oral hearing of the appeal. His mother did attend, however, accompanied by a friend. The appeal tribunal disallowed the appeal and confirmed the decision dated 31 March 2008 to the effect that the appellant was not entitled to DLA from and including 8 July 2008. Following receipt, on 23 February 2009, of an application for leave to appeal to the Social Security Commissioner, the application was refused by the legally qualified panel member.

 

10.   On 7 April 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.

 

11.   On 19 May 2009 observations were sought from Decision Making Services (DMS) and these were received on 16 June 2009. DMS supported the application for leave to appeal to the Social Security Commissioner.

 

         Errors of law

 

12.   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.

 

13.   In R(I 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals. As set out at paragraph 30 of R(I)2/06 these are:

 

“(i) making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);

(ii)  failing to give reasons or any adequate reasons for findings on material matters;

(iii) failing to take into account and/or resolve conflicts of fact or opinion on material matters;

(iv) giving weight to immaterial matters;

(v)  making a material misdirection of law on any material matter;

(vi) committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …

Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’). Errors of law of which it can be said that they would have made no difference to the outcome do not matter.”

 

         The error of law in the instant case

 

14.   The statement of reasons (SORs) for the appeal tribunal’s decision has been prepared with a great deal of care and attention. The appeal tribunal has identified the main issues arising in the appeal; has been forensic in its identification and assessment of evidence; has made relevant findings in fact and has, accordingly, drawn its conclusions on benefit entitlement.

 

15.   How, therefore, did the appeal tribunal err in law? Attached to the written submission, prepared by the Department for the appeal tribunal hearing, at Tab No 9, is a letter dated 28 April 2008 from a social worker. It is clear from the detail of the appeal submission that the letter was initially faxed to the Department and forwarded by post some time later. The letter was clearly forwarded by the social worker in support of the appellant’s initial claim to DLA, and in respect of any appeal against the adverse decision by the Department not to make any award of entitlement as a result of that claim.

 

16.   Despite the detail of the SORs for the appeal tribunal’s decision there is no reference to the relevant evidence from the social worker contained in the letter dated 28 April 2009. Accordingly I cannot be satisfied from what has been set out in the SORs that the appeal tribunal has assessed that evidence in line with all of the other evidence which was before it. It may be the case that the appeal tribunal had formed the view that the evidence from the social worker added little support to the appellant’s contentions relating to his potential entitlement to DLA. It is equally arguable that the issues raised by the social worker, in the letter dated 28 April 2009, were addressed by the appeal tribunal through its effective assessment of all of the other evidence which was before it.     

 

17.   Nonetheless, I am satisfied that the context of the appellant having involvement with a Social Work Department could and should have been explored in more detail by the appeal tribunal. The letter dated 28 April 2009 is quite specific that the appellant had been known to the relevant Social Work team for some time. It seems to me that that fact was worthy of further exploration in terms for reasons for referral, intervention and action by the Social Work team, outcome of any intervention, details of ongoing interaction and future prognosis. The appellant’s mother was present at the oral hearing of the appeal and further evidence gathering on the Social Work issue could easily have been undertaken.

 

18.   Having found that the appeal tribunal was under a duty to consider the relevant evidence, and having failed to indicate that it did consider that evidence, and explain, in its SORs, that it has so considered it, I find, albeit with some reluctance that the decision of the appeal tribunal is in error of law.

 

         Disposal

 

19.   The decision of the appeal tribunal dated 16 September 2008 is in error of law.

 

20.   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.

 

21.   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, and 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.

 

22.   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. In this respect, it will be for the appellant, and any representative of the appellant, to adduce any evidence which he considers relevant to the appeal tribunal.

 

23.   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):  Kenneth Mullan

 

Commissioner

 

 

 

18 November 2009