Northern Ireland - Social Security and Child Support Commissioners' Decisions

 


[2009] NISSCSC C9_09_10(DLA) (19 May 2009)

Decision No: C9/09-10(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 18 December 2007
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. Having considered the circumstances of the case, 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 the Decision Making Services unit (DMS) of the Department that the decision of the appeal tribunal was in error of law for the reasons identified by DMS.
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 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 somewhat detailed and complicated background.
9. Although it is not clear how the relevant proceedings came before it, on 21 December 2004 an appeal tribunal decided that there were no grounds to supersede an earlier decision of the Department which had awarded the appellant an entitlement to the lower rate of the mobility component and the lowest rate of the care component of DLA from and including 9 December 1999. The papers relating to that earlier decision of the Department are no longer available.
10. It would appear that on 2 June 2005, an application for a supersession of the decision of the appeal tribunal, dated 21 December 2004, was received in the Department.
11. Following the completion of a claim pack by the appellant, the receipt of a medical report from the appellant's General Practitioner, and the examination of the appellant by an examining medical practitioner, a decision-maker, on 20 November 2005 decided that there were no grounds to supersede the decision of the appeal tribunal, dated 21 December 2004.
12. On 7 December 2005, a letter of appeal against the decision dated 20 November 2005 was received in the Department.
13. On 17 January 2006, the decision dated 20 November 2005 was reconsidered but was not changed.
14. An appeal tribunal hearing took place on 24 March 2006.
15. Although the papers relating to that appeal tribunal hearing are not before me, it would appear that the appeal tribunal disallowed the appeal, and confirmed the decision dated 20 November 2005.
16. On 21 June 2006 the legally qualified panel member (LQPM) refused an application for leave to appeal to the Social Security Commissioner from the decision of the appeal tribunal dated 24 March 2006.
17. On 17 September 2007 the Chief Social Security Commissioner, following a further application to him, set aside the decision of the appeal tribunal dated 24 March 2006, and referred the appeal to be heard by a differently constituted appeal tribunal.
18. A further appeal tribunal hearing took place on 18 December 2007. While the appeal was by way of an oral hearing, the record of proceedings confirms that the appellant was not in attendance and neither was a presenting officer from the Department. The record of proceedings does not record any detail of notification of the date, time and venue of the appeal to the appellant, or any response from him.
19. The appeal tribunal issued two decision notices to the following effect:

'Appeal disallowed. Grounds existed on 20.11.2005 to supersede the decision dated 21.12.2004 and the outcome is changed by limiting the award to 8.12.2008. Given the disabling conditions, an indefinite award was inappropriate. Otherwise, the decision of 21.12.2004 is confirmed. Lowest rate Care Component payable from 9.12.1999 to 8.12.2008.'

'Appeal disallowed. Grounds existed on 20.11.2005 to supersede the decision dated 21.12.2004 and the outcome is changed by limiting the award to 8.12.2008. Given the disability conditions, an indefinite award was inappropriate. Otherwise, the decision of 21.12.2004 is confirmed. Lower rate Mobility Component payable from 9.12.1999 to 8.12.2008.'

20. On 4 February 2008, and following an application to that effect, a statement of reasons (SORs) for the appeal tribunal's decision were issued to the appellant.
21. On 10 March 2008, an application for leave to appeal to the Social Security Commissioner was received in The Appeals Service. The grounds cited in the application related to how the appeal tribunal had assessed the appellant's problems with alcoholism, and had ignored other aspects of his medical condition.
22. On 9 April 2008, the application for leave to appeal was rejected by the LQPM, as being outside the statutory time limit for making such an application.

Proceedings before the Social Security Commissioner

23. On 23 May 2008, a further application for leave to appeal to the Social Security Commissioner was received in the Office of the Social Security Commissioners. The grounds cited in that application were the same as had been cited to the LQPM.
24. On 21 October 2008, observations were sought from DMS and these were received on 19 November 2008.
25. DMS opposed the application on the grounds cited by the appellant but also submitted that the decision of the appeal tribunal was in error of law as:

(i) the appeal tribunal had failed to identify and state the grounds upon which it founded its decision to supersede the decision of the appeal tribunal, dated 21 December 2004; and

(ii) the appeal tribunal had failed to give the appellant notice of its powers to make an award less favourable than that contained in the decision under appeal.

26. The observations from DMS were shared with the appellant on 2 December 2008 and there has been no further submission received from him.

Errors of law

27. 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.
28. 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

29. 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.
30. 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.'

31. 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.
32. The decision under appeal to the appeal tribunal, in the present case, was a decision dated 20 November 2005, in which a decision-maker decided that there were no grounds to supersede a decision of an appeal tribunal, dated 21 December 2004.
33. Accordingly, the first task of the appeal tribunal was to determine whether the decision-maker, on 20 November 2005, had grounds to supersede the earlier decision of the appeal tribunal, dated 21 December 2004.
34. If the appeal tribunal determined that the decision-maker, on 20 November 2005, did not have grounds to supersede the decision of the appeal tribunal dated 21 December 2004, then that latter decision would continue to have effect.
35. If the appeal tribunal determined that the decision-maker, on 20 November 2005, did have grounds to supersede the decision of the appeal tribunal dated 21 December 2004, then the appeal tribunal could have gone on to consider entitlement to benefit, in light of the substantive rules for entitlement to DLA.
36. Finally, the appeal tribunal was under a duty to determine the effective date from which any supersession decision should take effect.
37. As was noted above, the appeal tribunal issued two separate decision notices to the following effect:

'Appeal disallowed. Grounds existed on 20.11.2005 to supersede the decision dated 21.12.2004 and the outcome is changed by limiting the award to 8.12.2008. Given the disabling conditions, an indefinite award was inappropriate. Otherwise, the decision of 21.12.2004 is confirmed. Lowest rate Care Component payable from 9.12.1999 to 8.12.2008.'

'Appeal disallowed. Grounds existed on 20.11.2005 to supersede the decision dated 21.12.2004 and the outcome is changed by limiting the award to 8.12.2008. Given the disability conditions, an indefinite award was inappropriate. Otherwise, the decision of 21.12.2004 is confirmed. Lower rate Mobility Component payable from 9.12.1999 to 8.12.2008.'

38. The statement of reasons for the appeal tribunal's decision, in respect of both components of DLA, is brief, and in the following terms:

'Appellant's main disabling conditions are Osteoarthritis both knees and alcoholism. We accept the clinical findings of the Examining Medical Practitioner (tab …) as factual. For a limited period, we are prepared to accept that Lower Rate Mobility is appropriate because of alcohol abuse and Lowest Rate Care (significant attention) is appropriate because of bilateral knee pain. Because the alcoholism may improve with therapy and in anticipation of knee joint replacement, we do not consider an indefinite award is appropriate. We are also satisfied that Appellant [sic] is not virtually unable to walk using crutches and can attend to most of his bodily functions day and night unaided and unsupervised.'

39. Both Decision Notices make it clear that the appeal tribunal had determined that:

(a) the decision under appeal was the decision of the decision-maker, dated 20 November 2005;

(b) the decision-maker did have grounds, on 20 November 2005, to supersede the decision of the appeal tribunal, dated 21 December 2004; and

(c) having found that grounds did exist, could alter the period of the award, but not the rates or components, of entitlement to DLA.

40. The problem 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 the report of the EMP, available to the appeal tribunal.
41. 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.'

42. 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. DMS is correct to concede, in its written observations, that the failure to identify the basis upon which the appeal tribunal found that there were grounds to supersede, renders its decision in error of law.
43. In my view, that 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.
44. 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, and by implication the supersession, took effect from an identified date. In the present case, the appeal tribunal failed to explain why it had adopted the dates relevant to its decision. 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

45. In its written observations on the application for leave to appeal to the Social Security Commissioner, DMS also submitted that the decision of the appeal tribunal is in error of law on another basis. The decision under appeal was a decision dated 20 November 2005, in which a decision-maker decided that there were no grounds to supersede a decision of an appeal tribunal, dated 21 December 2004. The decision dated 20 November 2005 left intact, in terms of entitlement to benefit, the decision dated 21 November 2004. Accordingly, at the date of the appeal tribunal hearing, the appellant had an entitlement to an indefinite award of the lower rate of the mobility component and the lowest rate of the care component of DLA from and including 9 December 1999. The effect of the appeal tribunal's decision, in terms of benefit entitlement was to reduce the period of award from an indefinite period to a fixed period of nine years. Accordingly, the appeal tribunal made a decision which was less favourable to the appellant.
46. Article 13(8)(a) of the Social Security (Northern Ireland) Order 1998 provides that in deciding an appeal, an appeal tribunal need not consider any issue not raised by the appeal. That provision has been the subject of close scrutiny since its enactment and a number of principles have emerged. 'Need not' does not mean 'must not' and an appeal against a decision enables the whole of the decision to be reconsidered, even parts of it with which the appellant is not specifically concerned.
47. In R(IB) 2/04, a Tribunal of Commissioners in Great Britain confirmed that an appeal tribunal is entitled to make a decision less favourable to the claimant than the decision under appeal. At paragraph 194 the Commissioners state:

'In particular, on an appeal against a refusal of a claimant's application for supersession of an award of disability living allowance (or against a supersession which was not as favourable as the claimant wished), an appeal tribunal is entitled to supersede (or revise) the original decision on a ground which leads to a decision less favourable to the claimant than the decision under appeal. However, unless the Secretary of State has in his submissions to the appeal tribunal raised the issue as to whether a less favourable decision should be made, the tribunal must consciously consider whether to exercise its discretion under section 12(8)(a) of the 1998 Act to take into account issues not raised by the appeal. This is a discretion to be exercised judicially, taking into account all relevant circumstances. If a statement of reasons is given, then reasons for the exercise of the discretion should be set out. In addition, the appeal tribunal must be satisfied that there has been compliance with the requirements of Article 6 of the European Convention on Human Rights and of natural justice .'

Earlier, at paragraph 94, they had stated:

'This will involve, at the very least, ensuring that the claimant has had sufficient notice of the tribunal's intention to consider superseding adversely to him to enable him properly to prepare his case. The fact that the claimant is entitled to withdraw his appeal any time before the appeal tribunal's decision may also be material to what Article 6 and the rules of natural justice demand.

48. There has been further discussion as to how the discretion should be exercised and the extent to which an appellant should be 'warned' about the possibility of removal or lessening of an existing award.
49. In C48/03-04(DLA), the principles in R(IB)2/04 were considered by Commissioner Brown. At paragraph 22, she stated:

22. ... The decision in CIB/4751/2002 [R(IB)2/04] and others is authority for the proposition that a Tribunal is entitled to supersede the original decision on a ground which leads to a decision less favourable to the claimant than that original decision.

50. The Commissioner went on to cite the relevant paragraphs from the decision of the Tribunal of Commissioners, including paragraph 194, relating to the exercise of the discretion to make a decision less favourable.
51. The most recent decision in respect of the power to make an award which is less favourable is CDLA/884/2008. There Commissioner Rowland, now Upper Tribunal Judge Rowland, stated at paragraph 10:

'10. Mr Spencer also points out that it is not necessarily enough for a tribunal to warn a claimant that his existing award is at risk and give him the opportunity to withdraw his appeal. He refers me to paragraph 94 of the Tribunal of Commissioners' decision, in which they said that it was necessary that "the claimant has sufficient notice of the tribunal's intention to consider superseding adversely to him to enable him properly to prepare his case." Here, the claimant had no advance notice of the possible case against him in respect of either the mobility component or the lowest rate of the care component and there is no indication that it was explained to him that the risk to his existing award was not merely theoretical. As the mobility component and the lowest rate of the care component had not been in issue, the grounds upon which they might be awarded were not mentioned in the Secretary of State's submission to the tribunal.'

52. In the present case, the written submissions for the appeal tribunal's decision contain separate sections addressing the correctness of the decision under appeal that is the decision dated 20 November 2005. In both sections the appeals writer submits that the decision dated 20 November 2005 was correct and should be upheld. A reader of that submission, including the appellant, might gain the impression that the Department was not taking issue with the practical benefit effect of the decision dated 20 November 2005 ie that the appellant had an entitlement to an indefinite award of the lower rate of the mobility component and the lowest rate of the care component of DLA from and including 9 December 1999.
53. The record of proceedings record that the appellant did not attend the oral hearing of his appeal and also does not record any detail of notification of the date, time and venue of the appeal to the appellant, or any response from him. There is no indication that any consideration was given to an adjournment of the appeal and, therefore, to ensure that the appellant is provided with what was described in R(IB) 2/04, at paragraph 94, as 'sufficient notice of the tribunal's intention to consider superseding adversely to him to enable him properly to prepare his case'.
54. Accordingly, I am in agreement with DMS that the failure to provide the appellant with such sufficient notice of the appeal tribunal's intentions, failed to provide him with sufficient opportunity properly to prepare his case. On this basis, therefore, the decision of the appeal tribunal is in error of law.

Disposal

55. The decision of the appeal tribunal dated 18 December 2007 is in error of law.
56. 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.
57. 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 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.

Guidance to the parties to the proceedings and the appeal tribunal

Grounds to supersede

58. The decision under appeal to the appeal tribunal, in the present case, was a decision dated 20 November 2005, in which a decision-maker decided that there were no grounds to supersede a decision of an appeal tribunal, dated 21 December 2004.
59. Accordingly, the first task of the appeal tribunal was to determine whether the decision-maker, on 20 November 2005, had grounds to supersede the earlier decision of the appeal tribunal, dated 21 December 2004.
60. If the appeal tribunal determined that the decision-maker, on 20 November 2005, did not have grounds to supersede the decision of the appeal tribunal dated 21 December 2004, then that latter decision would continue to have effect.
61. If the appeal tribunal determined that the decision-maker, on 20 November 2005, did have grounds to supersede the decision of the appeal tribunal dated 21 December 2004, then the appeal tribunal could have gone on to consider entitlement to benefit, in light of the substantive rules for entitlement to DLA.

Effective date of supersession

62. 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.
63. 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.
64. 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.
65. The parties to the proceedings in the present case may wish to make submissions to the appeal tribunal on the application of the effective date of supersession rules to the issues arising in the appeal.

Evidential issues

66. 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, the appellant's representative should note my comments, made above, in connection with the provision of witness testimony.
67. 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.
68. Both the parties to the proceedings, and the appeal tribunal, will wish to consider the decision of the Tribunal of Commissioners in Great Britain in R(DLA) 6/06, in considering the issues which arise in this appeal.

(signed) K Mullan

Commissioner

19 May 2009