Northern Ireland - Social Security and Child Support Commissioners' Decisions

ICK-v-Department for Social Development (DLA) [2020] NICom 115

Decision No:  C62/10-11(DLA)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

DISABILITY LIVING ALLOWANCE

 

 

Appeal to a Social Security Commissioner

on a question of law from a Tribunal's decision

dated 29 September 2009

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.    This is an appeal by the claimant, with the leave of a Commissioner granted on 14 October 2010, against a decision of the appeal tribunal, affirming the decision of a decision-maker, to the effect that the claimant is not entitled to either component of disability living allowance (DLA) from and including 4 February 2009.

 

2.    Having considered the circumstances of the case I am satisfied that the appeal can properly be determined without a hearing.

 

3.    On 4 February 2009 the claimant made a claim for DLA.  On 16 March 2009 a Dr F…. completed a general practitioner (GP) factual report.  On 26 March 2009 a decision-maker decided that the claim should be disallowed from and including 4 February 2009.  After a request for reconsideration of the decision, more information was received.  On 5 May 2009 Dr F…. completed a GP factual report.  On 3 June 2009 a Dr M….., from the same medical practice, sent a note elaborating on the contents of the GP, presumably Dr F…., who apparently had retired.  On 11 June 2009 the decision of 26 March 2009 was reconsidered.  However, it was not changed.  Thereupon the claimant appealed.

 

4.    The appeal was heard by way of a ‘paper’ hearing on 29 September 2009.  The appeal was disallowed.

 

5.    The claimant then sought leave to appeal to a Commissioner.  However, on 12 January 2010, leave to appeal was refused.  The claimant then sought leave from a Commissioner to appeal.  Such leave was granted on 14 October 2010 for the following reasons:

 

“It is arguable that the decision was wrong in law, because the tribunal did not consider adequately, or at all, the claimant’s assertion that there was an error in the medical evidence (in that it related to a person other than the claimant) and, in addition, the tribunal failed to deal with the claimant’s distinct expression of unhappiness about the information provided by a previous general practitioner.”

 

6.    Throughout the proceedings the claimant has represented herself whilst in the present appeal the Department has been represented by Mr John Kirk of Decision Making Services.

 

7.    The claimant raised many points in her voluminous appeal documents.  Nevertheless it is clear to me that the only real issue in the case is that set out in the reasons for granting leave to appeal.  The claimant has submitted that there were many defects in the proceedings.  However, close examination of all the papers and after taking into account Mr Kirk’s submissions, it is clear to me that an error has arisen in the case in relation to the way that the GP reports were dealt with by the tribunal.  In particular the claimant had requested that another GP factual report should be obtained as there was an error in the original report, in that the information in the report related to another person.  In particular at paragraphs 10 -12 of the first page of the record of proceedings in relation to the care component the tribunal noted as follows:

 

“BF500 22.4.2009 Report by General Practitioner relates to different patient?

 

General Practitioner letter 3.6.2009 “she tells me”

 

General Practitioner confirmed with doctor that information relates to this patient.”

 

       [In the papers there appear to be two almost identical copies of the record of proceedings – one strictly speaking in relation to the mobility component and the other in relation to the care component.  Both mention the care and the mobility component.  They are virtually identical in content save for punctuation and capitalisation.  However it is noteworthy that one version refers, when setting out the portion quoted above, to “point” rather than “patient”.  From the context it is clear to me that the transcription from the original notes has on the second occasion referred to “point”, rather than the correct transcription which is, beyond doubt, “patient”.]

 

8.    It is clear that the tribunal was aware of the claimant’s contentions that at least some of the medical evidence related to a person other than the claimant.  However, there is nothing within the statement of reasons to demonstrate that the tribunal considered the matter any further.  In addition, there is nothing within the statement of reasons to demonstrate that the tribunal dealt with the claimant’s expression of unhappiness at the information provided by the earlier GP.

 

9.    Mr Kirk, very properly in my view, has accepted that the tribunal ought to have dealt with these issues.

 

10.   I conclude that the tribunal erred by not considering the claimant’s assertion, that may have had some foundation, that there was an error in the medical evidence, in so far as it might have related to a person other than the claimant and, in addition, erred by failing to deal with the claimant’s distinct expression of unhappiness about the information provided by the earlier GP, especially as there might have been, at the very least, some foundation for such unhappiness.  Accordingly I conclude that the tribunal has erred in law.

 

11.   Therefore I set aside the decision appealed against and I refer the case to a differently constituted tribunal for determination.  I direct the new tribunal, to deal with the issues concerning the medical evidence set out in this decision, in so far as they still remain relevant in light of the evidence adduced to that tribunal.  However, the fact that this appeal has been allowed should not be taken as an indication that the claimant will ultimately be successful in her appeal to a tribunal.

 

 

(signed):  J A H Martin QC

 

Chief Commissioner

 

 

 

18 November 2010