Northern Ireland - Social Security and Child Support Commissioners' Decisions

 


[2009] NISSCSC C4_09_10(DLA) (5 May 2009)

Decision No: C4/09-10(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 4 June 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. Both parties to the proceedings before the Social Security Commissioner have expressed the view that the decision of the appeal tribunal, which is the subject of this appeal, is in error of law.
4. I am in agreement with Decision Making Services (DMS) of the Department that the decision of the appeal tribunal was in error of law for the reasons identified by them.
5. 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.
6. 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.
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. This application has a detailed and complicated background.
9. It would appear to be the case that the appellant was given an award of an entitlement to the higher rate of the mobility component and the middle rate of the care component of DLA from and including 9 June 1997.
10. Although it is not clear how the relevant proceedings came before it, on 16 September 2005, an appeal tribunal decided that the appellant satisfied the conditions of entitlement to the higher rate of the mobility component of DLA from and including 16 December 2003, and the middle rate of the care component of DLA from 16 December 2003 to 15 December 2006.
11. On 24 July 2006, what has been described as a 'renewal claim' to DLA was received in the Department from the appellant. Following receipt of medical evidence, and a copy of a report of an examination by an examining medical practitioner (EMP), it was decided, on 13 December 2006, that the appellant should have no entitlement to DLA, from and including 16 December 2006.
12. As will be noted in greater detail below, it has been accepted by the Department that, as the appellant had an ongoing award of entitlement to the higher rate of the mobility component of DLA, on foot of the decision of the appeal tribunal dated 16 September 2005, the receipt of the 'renewal claim' application should have been treated as an application for a supersession of the decision of the appeal tribunal.
13. In any event, following receipt of a letter of appeal from the appellant, on 16 January 2007, and further correspondence both pre and post that date, the appellant was re-examined by an EMP on 13 April 2007. Subsequently, on 19 April 2007, the decision dated 13 December 2006 was reconsidered and the appellant was awarded an entitlement to the lower rate of the mobility component and the middle rate of the care component of DLA from 16 December 2006 to 15 December 2008. Once again, it has now been accepted by the Department that the decision dated 19 April 2007 was made on the basis that there was a 'renewal claim' to DLA.
14. Following a request for a reconsideration of the decision dated 19 April, a decision-maker of the Department did reconsider but did not change that decision. A letter of appeal against the decision dated 19 April 2007 was received in the Department on 15 May 2007.
15. An appeal tribunal, on 15 November 2007, heard the appellant's appeal, disallowed it, and removed the appellant's entitlement to DLA, from and including 16 December 2006.
16. On 5 December 2007, the legally qualified panel member (LQPM) set aside the decision of the appeal tribunal, dated 15 November 2007.
17. On 7 December 2007, a decision-maker superseded the decision of the appeal tribunal, dated 16 September 2005, and awarded the appellant an entitlement to the higher rate of the mobility component of DLA from and including 16 December 2006, and the middle rate of the care component of DLA from 16 December 2006 to 15 December 2009.
18. A reconsideration of the decision dated 7 December 2007 was requested on 2 January 2008.
19. On 14 January 2008, the decision dated 7 December 2007 was reconsidered but was not changed.
20. On 24 January 2008, an appeal was received in the Department.
21. An oral hearing of the appeal took place on 4 June 2008. The appellant was present at this oral hearing and was represented. The appeal tribunal disallowed the appeal in respect of the mobility component of DLA and substituted its own decision. The form and effect of the decision notices for the appeal tribunal's decision will be considered in further detail below.
22. On 9 June 2008 an application was made to set aside the decision of the appeal tribunal dated 4 June 2008.
23. On 2 July 2008, the application to set aside the decision of the appeal tribunal dated 4 June 2008 was refused.
24. On 4 September 2008, an application for leave to appeal to the Social Security Commissioner was received in The Appeals Service (TAS).
25. On 31 October 2008, the application for leave to appeal to the Social Security Commissioner was refused by the LQPM who, at the same time, extended the time for making an application for leave to appeal, accepting that special reasons existed for the late application.

Proceedings before the Social Security Commissioner

26. On 4 November 2008, a further application for leave to appeal to the Social Security Commissioner was received in Office of the Social Security Commissioners. The grounds cited in the application for leave to appeal were the same as those cited to the LQPM.
27. On 20 November 2008 observations were sought from DMS, as part of which DMS were asked to comment on the appeal tribunal's consideration of certain of the evidence before it. Observations from DMS were received on 16 December 2008. In these first observations, DMS opposed the application on all of the grounds cited by the appellant.
28. Observations were shared with the appellant on 18 December 2008.
29. Further submissions in reply to the observations were received from the appellant's representative on 18 January 2009.
30. Further correspondence in connection with the application was received from the appellant's representative on 11 February 2009.
31. On 23 February 2009 I accepted the application for special reasons.
32. Also on 23 February 2009, I directed that DMS provide additional submissions on the following issues:

'To what extent has the appeal tribunal, in both the decisions notices and the statement of reasons:

(i) correctly identified the decision under appeal;

(ii) correctly addressed the issue of grounds to supersede.

Further, is the appeal tribunal's decision in relation to the care component of disability living allowance, as set out in the decision notice, correct in law?'

33. On 10 March 2009, a further submission in reply to the direction dated 23 February 2009 was received from DMS. In this submission DMS resiled from their position, as set out in the observations dated 16 December 2008 and submitted that the decision of the appeal tribunal was in error of law. The basis upon which DMS conceded that the decision was in error of law was, partly, on the basis of my decision in C12/08-09 (DLA). I will return to what I said in C12/08-09(DLA) in more detail below.

Errors of law

34. 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.
35. 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 primary error of law in the present case

36. A Tribunal of Commissioners in Great Britain, in R(IB) 2/04, undertook an extensive analysis of the legislative provisions relating to decision making and appeals. In Great Britain these provisions are the Social Security Act 1998 and the Social Security and Child Support (Decisions and Appeals) Regulations 1999, both as amended. In Northern Ireland these provisions are the Social Security (Northern Ireland) Order 1998 and the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, both as amended. To all intents and purposes the legislative provisions with respect to decision making and appeals in Great Britain and Northern Ireland are identical.
37. At paragraph 73, of R(IB) 2/04, in discussing the appeal tribunal's powers with respect to supersession decisions:

'… it follows from our reasoning … that the appeal tribunal has jurisdiction, on appeal, to decide whether the outcome arrived at by that decision (i.e. either to change or not to change the original decision) was correct. This will or may involve deciding (a) whether one of the statutory supersession grounds (whether the one relied upon by the decision-maker or not) applied and (b) if so whether the original decision ought to be changed.'

38. The grounds upon which a decision can be superseded are to be found in regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.
39. The decision under appeal to the appeal tribunal, in the present case, was a decision dated 7 December 2007, in which a decision-maker decided to supersede the earlier decision of the appeal tribunal dated 16 September 2005 and, further, decided that the appellant was entitled to the higher rate of the mobility component of DLA from and including 16 December 2006 and the middle rate of the care component of DLA from 16 December 2006 to 15 December 2009.
40. Accordingly, the first task of the appeal tribunal was to determine whether the decision-maker, on 7 December 2007, had grounds to supersede the earlier decision of the appeal tribunal, dated 16 September 2005.
41. If the appeal tribunal determined that the decision-maker, on 7 December 2007, did not have grounds to supersede the decision of the appeal tribunal dated 16 September 2005, then that latter decision would continue to have effect.
42. If the appeal tribunal determined that the decision-maker, on 7 December 2007, did have grounds to supersede the decision of the appeal tribunal dated 16 September 2005 then the appeal tribunal could have gone on to consider entitlement to benefit, in light of the substantive rules for entitlement to DLA.
43. Finally, the appeal tribunal was under a duty to determine the effective date from which any supersession decision should take effect.
44. The appeal tribunal issued two separate decision notices to the following effect:

'To disallow the appeal. (The claimant) is not entitled to the mobility component of DLA from and including 7th December 2007. There were grounds on 7^th December 2007 to supersede the appeal tribunal decision of 16^th September 2005 – there was a relevant change of circumstances in that (the claimant's) walking ability had improved.'

'To disallow the appeal and confirm the award of middle rate care component of DLA (daytime attention) from 16^th December 2006 - 15^th December 2009.

As per mobility'

45. At first consideration of the decision notice with respect to the mobility component, therefore, it appears that the appeal tribunal had in mind:

(a) that the decision under appeal was the decision of the decision-maker, dated 7 December 2007;

(b) that the appeal tribunal's first duty was to determine whether the decision-maker had grounds to supersede the decision of the appeal tribunal, dated 16 September 2005;

(c) if it did determine that such grounds did exist, to confirm the legal and evidential basis upon which that change of circumstances should be founded.

46. The difficulty is that the statement of reasons for the appeal tribunal's decision does not deal with the issue of supersession to any further degree of sufficient detail. In the statement of reasons there is no mention of the issue of supersession at all. The greater part of the statement of reasons is taken up with an assessment of the evidence available to the appeal tribunal, particularly in relation to medical evidence, the appellant's own evidence, some limited findings in fact, and respective conclusions that:

'… we are not convinced that it renders him as being virtually unable to walk …

We are not convinced that guidance or supervision is reasonably required to enable (the claimant) to walk out of doors on unfamiliar routes for most of the time.

We feel overall the current award of middle rate care for daytime attention to be reasonable.

We feel given this ability he should be able to attend functions such as toileting, repositioning of bed clothes etc…[sic]

We are not convinced he requires watching over at night in order to avoid substantial danger to himself or other's. [sic]'

47. What the statement of reasons tells the appellant is that the appeal tribunal has determined and agrees that the appellant should not have an entitlement to the mobility component of DLA from a specific date, should have an entitlement to the care component for a specific period and then something of the evidential basis for its conclusions on that issue.
48. What the statement of reasons does not inform the appellant is:

(i) that the appeal tribunal has addressed the issue of whether the Department had a legal and evidential basis for reconsidering and changing its earlier decision;

(ii) the basis upon which it arrived at its conclusions, as set out in the mobility component decision notice that there had been an improvement in the appellant's walking ability; and

(iii) the effective date from which any new decision with respect to the mobility component should take effect.

49. As was noted above, in further submissions provided in response to my direction, DMS submitted that, on the basis of my decision in C12/08-09(DLA), they would now have to concede that the decision of the appeal tribunal, dated 4 June 2008, was in error of law.
50. In C12/08-09(DLA), I indicated, at paragraphs 48-58:

'48. The appeal tribunal was under a specific duty to determine whether the decision under appeal was correct. As that decision was a supersession decision the duty was to determine whether there were grounds to supersede under regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.

49. If the appeal tribunal determined that the decision-maker did not have grounds to supersede the earlier decision then that decision would continue to have effect.

50. If the appeal tribunal determined that the decision-maker did have grounds to supersede the earlier decision then the appeal tribunal could have gone on to consider entitlement to benefit, in light of the substantive rules for entitlement to DLA.

51. Finally, the appeal tribunal was under a duty to determine the effective date from which any supersession decision should take effect.

52. The appeal tribunal's duty is not only to consider the supersession issue, including grounds, entitlement and effective date, but to make clear that it has done so. It is not sufficient for it to be, as DMS suggests, implicit from the appeal tribunal's documentation that the supersession issue was addressed. That consideration must be explicit from the decision notice, the statement of reasons or a combination of both. In the present case, I am of the view that it is not even implicit that consideration was given to the supersession issue.

53. The consideration of the issues raised by the appeal is expressly a part of the appeal tribunal's inquisitorial role (on which issue see the further comments of the Tribunal of Commissioners in Great Britain in R(IB) 2/04 at paragraph 32). That would mean that the supersession issue ought to have been addressed, in any event.

54. In the present case, however, the appellant's representative, as is made clear in the record of proceedings, made a specific submission that 'nothing [sic] changed since initial award'. That representative, and, more importantly, his client were entitled to know the basis upon which the appeal tribunal had concluded that something had changed, justifying the Departmental supersession decision.

55. What the appellant, and her representative were informed, through the decision notice, and the statement of reasons, was the basis on which the appeal tribunal determined that she was not entitled to DLA. What they were not informed was the basis on which the appeal tribunal determined that there had been a relevant change, justifying the supersession, and from which effective date. The decision notice and statement of reasons collectively read as if they had been prepared in connection with a decision of a new or renewal claim.

56. It could well be the case that the appeal tribunal agreed with the detailed submissions, set out in the appeal submission, on all of the supersession issues – grounds, entitlement and effective date. If that is the case it would have been easy to make reference to those submissions and add further reasons as to the basis on which it so agreed.

57. DMS submits that it may have been preferable for the appeal tribunal to refer specifically to the grounds for supersession in the conclusion to its statement of reasons. It is not preferable but essential that it should do.

58. The failure of the appeal tribunal to make explicit its determination, findings and conclusions on the supersession issue means that it is in error of law, and it is for that reason that it is set aside.'

51. DMS is correct to concede that the application of the principles cited above to the present appeal must lead to a conclusion that there has been an error of law. The error is that the appeal tribunal has clearly failed to make explicit its determination, findings and conclusions on the supersession issue.
52. In the present case, and as the record of proceedings confirm, the appellant had made it clear that nothing had changed with respect to his medical condition. If anything, he submitted, he was getting worse. In my view, the appellant was entitled to know the basis upon which the appeal tribunal had concluded that something had changed, justifying a conclusion that there were grounds to supersede the earlier decision of the appeal tribunal.
53. Additionally, the appeal tribunal, having found that there had been a relevant change of circumstances was under a duty to determine the effective date from which any supersession decision should take effect. Accordingly, the appeal tribunal was required to explain why the identified change - improvement in walking ability - and by implication the supersession, took effect from the identified date ie 7 December 2007. Accordingly, even if the appeal tribunal was not in error by failing to identify the correct ground for supersession it was in error in following through with the ground which it did identify.

A further error of law

54. As was noted above, one of the issues on which I directed that DMS provide additional submissions was whether the appeal tribunal's decision in relation to the care component of DLA, as set out in the decision notice, was correct in law. That decision notice read as follows:

'To disallow the appeal and confirm the award of middle rate care component of DLA (daytime attention) from 16^th December 2006 - 15^th December 2009.

As per mobility'

55. The decision notice records that the appeal, with respect to the care component, was disallowed. This is probably because the appellant was seeking an entitlement to the higher rate of the care component of DLA, while the appeal tribunal decided that an entitlement to the middle rate was appropriate.
56. The phrase 'as per mobility' is perplexing. Coming as it does, after the 'outcome' aspect of the decision notice, may mean that the appeal tribunal was alluding to the parallel section within the decision notice for the mobility component which had dealt with the supersession issue. As was noted above, in the decision notice for the mobility component, it was noted that:

'there was a relevant change of circumstances in that (the claimant's) walking ability had improved.'

57. Although I cannot be certain, it may be that the appeal tribunal also meant to confirm that, in relation to the care component, there were also grounds to supersede the decision of appeal tribunal dated 16 September 2005 and that the grounds were the same as for the mobility component. If that was the intention of the appeal tribunal then its decision to that effect is in error of law.
58. The legislative provisions which make provision for the supersession of decisions, and the date from which a supersession decision should take effect, namely Article 11 of the Social Security (Northern Ireland) Order 1998 and regulations 6 and 7 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, are complex. As was noted by the Tribunal of Commissioners in R(IB) 2/04, at paragraph 10, in considering the Great Britain equivalent regulation to regulation 6, there can be no supersession under unless one of the grounds for supersession specified in regulation 6 was actually found to exist, and the ground which was found to exist must have formed the basis of the supersession in the sense that the original decision could only be altered in a way which followed from that ground.
59. The reasoning of the Tribunal of Commissioners in R(IB) 2/04, on this issue, was confirmed by Commissioner Brown in C14/04-05(DLA). At paragraphs 7-8 of that decision, she stated:

'7 … I agree with Mrs Gunning that DLA is a composite benefit and that once grounds for supersession have been established both components can be looked at. R2/95(DLA) and CIB/4751/2002 so indicate. However, that is not the end of the matter.

8. CIB/4751/2002 decided, inter alia, that where a claimant makes an application for supersession of a Secretary of State's decision and the Secretary of State supersedes adversely, and makes a decision less favourable to the claimant than had previously been in existence, the Secretary of State does have power to do so but such supersession is to be taken as done on his own initiative and therefore to take effect from the date of the superseding decision. [Paragraphs 195 and 95-97]. In Northern Ireland the Department has the functions of the Secretary of State. The decision also decides that a decision can only be superseded if there is a ground for supersession and that ground forms the basis of the supersession decision in the sense that the original decision can only be altered in a way which follows from that ground (Paragraph 10(4) and 186). Following the reasoning of Rix LJ (with which Dyson LJ agreed) in the Wood case the Tribunal of Commissioners decided that, unless one of the statutory criteria for supersession had been established and formed the basis of the new superseding decision, a superseding decision could not be made.'

60. Accordingly, and as DMS concede, if the intention of the appeal tribunal was to found a supersession in relation to the care component, on the basis of a finding of an improvement in the appellant's mobility, its decision was in error of law, on the basis of the reasoning in R(IB) 2/04 and C14/04-05(DLA).

The appellant's other grounds for seeking leave to appeal

61. Having found that the decision of the appeal tribunal is in error of law, on the basis of the reasoning noted above, I do not have to consider the grounds cited by the appellant in the application for leave to appeal. I have noted, however, that the majority of those grounds are concerned with the appeal tribunal's assessment of the evidence which was before it, including the appeal tribunal's own evidence and submissions in respect of the accuracy of the record of proceedings.
62. I would not necessarily have found that the decision of the appeal tribunal was in error of law on the basis of the grounds cited by the appellant.
63. 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.
64. 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 M'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."

65. 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.'

66. Additionally, 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.'

67. 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.'

68. 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".

69. Finally, and in relation to the accuracy of the record of proceedings, I repeat, by way of guidance, what I said at paragraphs 66-73 of my decision in C16/07-08(DLA):

'66. In the original application for leave to appeal to the Social Security Commissioner, Mrs Carty referred to a number of factual inaccuracies which she submitted were contained within the record of proceedings, which, she submitted, caused great concern to the appellant. At the oral hearing of the appeal, Mrs Carty conceded that factual inaccuracies did not vitiate the substance of the appeal tribunal's decision.

67. Regulation 55(1) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, provides that:

'A record of the proceedings at an oral hearing, which is sufficient to indicate the evidence taken, shall be made by the chairman or, in the case of an appeal tribunal which has only one member, by that member, in such medium as he may determine.'

68. In C48/99-00(DLA), the Chief Commissioner stated, at paragraph 16:

'… there is no obligation to make a verbatim record of all that does occur at a Tribunal hearing although the record should summarize all relevant evidence and also note any written evidence and submissions that are received by the Tribunal during the hearing. It is difficult for a Commissioner, who has only jurisdiction to decide appeals on points of law, to rule on whether something occurred or did not occur at a Tribunal hearing. In light of my findings on ground (iv) I do not consider it necessary or constructive to pursue this issue any further save to emphasize that a Tribunal has an obligation to summarize all relevant evidence and also to note that any particular written evidence or submissions were received by the Tribunal during the hearing.'

69. In R(DLA) 3/08, a Tribunal of Commissioners in Great Britain considered the extent of the requirements in connection with the making of a record of proceedings. In summary, the tribunal determined that:

(i) a tribunal's record of proceedings should be a record of what happened and in addition to indicating the evidence taken, should include a record of any procedural application and its result (paragraph 6);

(ii) it is good practice to include a brief note of any submissions made (paragraph 10);

(iii) the duty to make a record of proceedings does not extend to making a note of the tribunal's deliberations (paragraph 26);

(iv) the record of proceedings must be intelligible or capable of being made intelligible to those to whom it is issued (paragraphs 13 and 14);

(v) a failure to comply with regulation 55 will not necessarily render the tribunal's decision erroneous in point of law; the failure to comply must be material to the decision in the sense that it has resulted in a real possibility of unfairness or injustice. In so far as they suggest otherwise, CDLA/4110/1997, CIB/3013/1997 and CA/3479/2000 should no longer be followed (paragraph 27).

70. It has already been conceded by Mrs Carty that the factual inaccuracies in the record of proceedings in the present case do not render the appeal tribunal's decision to be in error of law.

71. The usual manner in which a record of proceedings is made is that it is recorded, in writing, by the LQPM of the appeal tribunal, on a form especially created for that purpose. The task of completion of a record of proceedings, as part of the general conduct and procedure for the oral hearing, is not an easy one for the LQPM, particularly where the oral hearing is lengthy; where there is considerable oral evidence to be taken; where the questioning of the appellant and any other witnesses is undertaken by other members of the appeal tribunal; where detailed submissions are made on behalf of the appellant by a representative; and where there is cross-referencing to other documentation contained in the appeal papers or provided as part of the appeal hearing. The recording difficulties are exacerbated where the LQPM is also asking relevant questions of a witness, or where the LQPM is the sole member of the appeal tribunal.

72. Nonetheless, the LQPM should endeavour to ensure that the record in writing is as accurate as possible, in line with the principles outlined in C48/99-00(DLA), and R(DLA) 3/08. As far as possible, the process should not be rushed, and clarification of particular evidence, in relation to medical treatments and medication regimes, for example, should be sought. Fundamental errors, such as the inaccurate recording of marital status, should be avoided. The record should contain details of submissions made, applications sought, and their outcome, and other interventions, both planned and untoward. The latter could include, for example, episodes of distress on the part of the appellant or other witness, or brief adjournments.

73. In this jurisdiction, where a request for a copy of the record of proceedings is made, under regulation 55(4) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, the usual procedure is that the hand-written copy, as recorded on the day of the appeal tribunal hearing, is typed up and checked for inaccuracies by the LQPM. The provision of a typed-up copy of the record of proceedings is of considerable advantage to the party to the proceedings seeking the same, and avoids problems associated with legibility of hand-writing. It is possible that some factual inaccuracies are the result of the misinterpretation of hand-writing during the typing-up process. Once again, LQPMs should endeavour to ensure that the final version which is to be forwarded to a party to the proceedings is accurate and in conformity with what was actually recorded on the day.'

Guidance to the parties to the proceedings and the appeal tribunal

Grounds to supersede

70. The appeal tribunal is reminded that the decision under appeal is a decision, dated 7 December 2007, in which a decision-maker decided to supersede the earlier decision of the appeal tribunal dated 16 September 2005 and, further, decided that the appellant was entitled to the higher rate of the mobility component of DLA from and including 16 December 2006, and the middle rate of the care component of DLA from 16 December 2006 to 15 December 2009.
71. Accordingly, the first task of the appeal tribunal is to determine whether the decision-maker, on 7 December 2007, had grounds to supersede the earlier decision of the appeal tribunal, dated 16 September 2005. The grounds upon which a decision can be superseded are to be found in regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.
72. In making its determination on the issue of whether the Department had grounds to supersede the appeal tribunal should note the remarks of Mrs Commissioner Brown, at paragraph 7, of the decision in C14/04-05(DLA):

'… DLA is a composite benefit and … once grounds for supersession have been established both components can be looked at. R2/95(DLA) and CIB/4751/2002 indicate.'

73. As was noted by the Tribunal of Commissioners in R(IB) 2/04, at paragraph 10, in considering the Great Britain equivalent regulation to regulation 6, there can be no supersession unless one of the grounds for supersession specified in regulation 6 was actually found to exist, and the ground which was found to exist must have formed the basis of the supersession in the sense that the original decision could only be altered in a way which followed from that ground.
74. If the appeal tribunal determines that the decision-maker, on 7 December 2007, did not have grounds to supersede the decision of the appeal tribunal dated 16 September 2005, then that latter decision continues to have effect.
75. If the appeal tribunal determines that the decision-maker, on 7 December 2007, did have grounds to supersede the decision of the appeal tribunal dated 16 September 2005, then the appeal tribunal should go on to consider entitlement to benefit, in light of the substantive rules for entitlement to DLA.

Effective date of supersession

76. In all appeals involving a supersession decision the appeal tribunal is under a duty to consider the date from which any supersession should take effect ('the effective date of supersession'). This is not a straightforward issue and much will depend on the ground for supersession and the benefit at issue in the appeal.
77. The effective date of supersession rules are set out in Articles 11(5) and (6) of the Social Security (Northern Ireland) Order 1998, and regulation 7 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, all as amended.
78. Where an appeal tribunal fails to consider the effective date of supersession rules, or misapplies these, it may find that its decision is in error of law.

Evidential issues

79. 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. 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.

Disposal

80. The decision of the appeal tribunal dated 4 June 2008 is in error of law.
81. 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.
82. 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