IS-v-Department for Social Development (DLA) [2010] NICom 53

 

Decision No:  C33/10-11(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 1 December 2008

 

 

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.    The decision of the appeal tribunal dated 1 December 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 30 July 2008, a decision-maker of the Department decided that the appellant was not entitled to DLA from and including 16 April 2008, on a new claim. An appeal against the decision dated 30 July 2008 was received in the Department on 26 August 2008.

 

9.    The appeal tribunal hearing took place on 1 December 2008. The applicant was present and was not represented.  The appeal tribunal disallowed the appeal, and confirmed the decision dated 30 July 2008.

 

10.   On 2 March 2009 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS).  On 13 March 2009, the application for leave to appeal was refused by the legally qualified panel member (LQPM).

 

       Proceedings before the Social Security Commissioner

 

11.   On 17 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 (OSSC).

 

12.   On 16 June 2009 observations were sought from Decision Making Services (DMS) and these were received on 9 July 2009. DMS opposed the application on the majority of the grounds cited by the appellant but supported the appeal on two other cited grounds.

 

13.   On 6 August 2009, a further submission, written on behalf of the appellant, was received in OSSC.

 

14.   On 25 August 2009 I directed TAS to provide a copy of the hand-written record of proceedings for the appeal tribunal hearing.

 

15.   On 7 October 2009 a reply was received from TAS indicating that the request which was the subject of the correspondence dated 25 August 2009 had been placed before the LQPM of the appeal tribunal.  TAS enclosed a copy of a reply from the LQPM in which he indicated that it was his view that ‘… any notes taken on the day of hearing were not a ‘record of proceedings’ and/or do not form part of the record of proceedings.’  The LQPM went on to state that for that reason he would not be providing a copy of the hand-written notes.

 

16.   On 17 December 2009 I directed TAS to confirm what documentation was before the appeal tribunal when it heard and determined this appeal providing copies of any relevant documentation which was provided either before the date of the appeal tribunal hearing or on the day of the hearing.  Further, I directed TAS to indicate whether or not the applicant’s general practitioner (GP) records were before the appeal tribunal, and to provide confirmation in the form of Form Per1 to confirm who considered the GP records on the day of the hearing.

 

17.   On 15 January 2010 a reply was received in OSSC from TAS in response to the correspondence dated 17 December 2009. The response included the following response from the LQPM:

 

‘The following documents and notes were available to the Tribunal:

 

(a)  Submission, tabbed documents and letter of appeal;

(b)  GP notes and records to include computerised notes;

(c)  Additional submission from claimant;

(d)  Additional documentation and letter (undated) from claimant – handed into tribunal on morning by clerk.’

 

18.   The reply from TAS also included a copy of a Form Per1 signed and dated 1 December 2008.

 

       Errors of law

 

19.   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.

 

20.   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

 

21.   In C39/09-10(DLA) I said the following, at paragraphs 25 to 31:

 

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

 

‘55(1) 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.’

 

26. Regulation 55 is not prescriptive about the format of the record of proceedings for the appeal tribunal hearing. Nonetheless, the President of Appeal Tribunals for Northern Ireland has recommended the use of the template form for the purpose of making of a record of proceedings for use in each case. Section 1 of the form is headed ‘Documents Considered’ and in this section, one would expect the chairman to note, in a summary format, the documentation which was before the appeal tribunal, including the documentation which was made available to the appeal tribunal in advance of the hearing, and any documentation which was made available to the appeal tribunal on the day of the hearing itself. The ‘Documents Considered’ section serves as a useful ‘aide-memoir’ to the chairman of the appeal tribunal as to the documentary evidence or submissions which were before the appeal tribunal. That aide-memoir would be very useful if and when the chairman is asked to prepare a statement of reasons for the appeal tribunal’s decision.   

 

27. In the present case, the ‘Documents Considered’ section of the record of proceedings is blank. The statement of reasons for the appeal tribunal’s decision makes reference, however, to certain documentation, including the appellant’s general practitioner (GP) records, which were before the appeal tribunal. I do not understand, therefore, why a separate note of the documentation was not made in the ‘Documents Considered’ section.

 

28. In the application for leave to appeal to the Social Security Commissioner, the appellant’s representative submits that several pieces of documentation were submitted to the appeal tribunal including a letter from the appellant’s GP, a written submission and a letter from the ‘Community Addictions’ team. The appellant’s representative submits that there is no reference to the letter from the ‘Community Addictions’ team, in the record of proceedings or in the statement of reasons and, more particularly, no indication of whether the appeal tribunal accepted or rejected this evidence. The appellant’s representative submits that, accordingly, the reasons for the appeal tribunal’s decision are inadequate. This is a submission which is supported by DMS.

 

29. In C16/08-09(DLA), I said the following, at paragraph 54:

 

‘…there is a clear duty on appeal tribunals to undertake a rigorous assessment of all of the evidence before it and to give an explicit explanation as to why it has preferred, accepted or rejected evidence which is before it and which is relevant to the issues arising in the appeal.”

 

30. In the instant case, I am presuming that the letter from the ‘Community Addictions’ team was submitted to the appeal tribunal on the basis of its relevance to the issues arising in the appeal or on the basis that it provided supportive evidence on the other submissions concerning the appellant’s potential entitlement to DLA. The appeal tribunal may have considered the evidence contained in the letter from the ‘Community Addictions’ team to have no relevance to the issues arising in the appeal, or did not support the submissions in connection with potential entitlement to DLA. Nonetheless, the appeal tribunal was under a duty to indicate that it had considered the documentation, and indicate what it made of that documentation in relation to its determination of the issues arising in the appeal. 

 

31. Having found that the appeal tribunal was under a duty to consider the relevant documentation, and having failed to consider it, and explain, in its statement of reasons, that it has so considered it, I find that the decision of the appeal tribunal is in error of law.’

 

22.   In the instant case, there are separate records of proceedings and statements of reasons for the care and mobility components of DLA. The ‘Documents Considered’ section of the record of proceedings for each component commences with a record of evidence given by the appellant.

 

23.   In the file of papers which has been provided to me, there is a copy of a letter dated 1 December 2008 from the appellant to the ‘clerk appeal tribunals’. In this letter the appellant states:

 

‘Find enclosed further documentation for the medical appeal tribunal attention [sic].’   

 

24.   Attached to the correspondence date 1 December 2008 is a bundle of documentation.

 

25.   As a result of the directions which were issued to TAS, and passed by TAS through the Office of the President of Appeal Tribunals, and on to the LQPM, it has become clear that the appeal tribunal had before it:

 

‘(a)          Submission, tabbed documents and letter of appeal;

(b)  GP notes and records to include computerised notes;

(c)  Additional submission from claimant;

(d)  Additional documentation and letter (undated) from claimant – handed into tribunal on morning by clerk.’ 

 

26.   I am assuming that as the appeal tribunal hearing took place on 1 December 2008, the documentation at (d) above corresponds to the documentation which is in the file of papers which is before me, and which is referred to in paragraph 17 above.

 

27.   The further receipt of Form Per1, signed and dated on 1 December 2008, the day of the appeal tribunal hearing, confirms that the appeal tribunal had before it the appellant’s GP records, and that the members of the appeal tribunal perused those records.

 

28.   It is difficult to understand why the LQPM had not recorded, in the ‘Documents Considered’ section of the record of proceedings that the appeal tribunal had before it the substantial documentation referred to in the previous paragraphs. As I noted at paragraph 26 of C39/09-10(DLA), the ‘… ‘Documents Considered’ section serves as a useful ‘aide-memoir’ to the chairman of the appeal tribunal as to the documentary evidence or submissions which were before the appeal tribunal. That aide-memoir would be very useful if and when the chairman is asked to prepare a statement of reasons for the appeal tribunal’s decision’.   

 

29.   On initial consideration, I formed the view that the reason why there was no record of the documentation having been before the appeal tribunal was that there had been an error in the reduction of the hand-written record of proceedings to the typed version which was before me. It was for that reason that I requested that a copy of the hand-written record of proceedings be provided to me. For his own reasons, the LQPM decided not to provide a copy of the hand-written record of proceedings.

 

30.   What is more fundamental, however, than the failure to make an accurate record in the record of proceedings of the documentation which was before the appeal tribunal, is the further failure of the appeal tribunal, to make any reference to the additional documentation in the statement of reasons for the appeal tribunal decision. While the separate statements of reasons make reference to medical evidence from the appellant’s GP which was included as a tabbed document in the appeal submission, there is no reference to the evidence contained in the GP records which were clearly before the appeal tribunal, or to the further documentation which was provided for the appeal tribunal’s consideration by the appellant.  

 

31.   As I stated in C16/08-09(DLA), at paragraph 54, and repeated in paragraph 29 of C39 09-10(DLA):

           

‘…there is a clear duty on appeal tribunals to undertake a rigorous assessment of all of the evidence before it and to give an explicit explanation as to why it has preferred, accepted or rejected evidence which is before it and which is relevant to the issues arising in the appeal.’

 

32.   It may be the case that the appeal tribunal may have considered that the other evidence which was before it had no relevance to the issues arising in the appeal, or did not support the submissions in connection with potential entitlement to DLA. Nonetheless, the appeal tribunal was under a duty to indicate that it had considered the documentation, and indicate what it made of that documentation in relation to its determination of the issues arising in the appeal.

 

33.   DMS, in written observations on the application for leave to appeal to the Social Security Commissioner, supported the appellant’s submission that the appeal tribunal had not considered all of the medical evidence which was before it. In so doing, DMS noted that:

 

‘In unreported decision C14/00-01(DLA) the Chief Commissioner considered a similar situation where a submission was before the tribunal and it made no reference to it.  At paragraph 25 the Chief Commissioner stated:

 

“However the net result in the present case is that the claimant might reasonably be under the impression that the relevant document (containing evidence, assertions as well as legal submissions) had not been taken into account when the Tribunal came to  its decision….I consider that it has erred in law by not specifically dealing with this document.”’

 

34.   Having found that the appeal tribunal was under a duty to consider the relevant documentation, and having failed to consider it, and explain, in its statement of reasons, that it has so considered it, I find that the decision of the appeal tribunal is in error of law.

 

       The appellant’s other grounds for appealing

 

35.   Having found that the decision of the appeal tribunal is in error of law, I do not have to consider the appellant’s other grounds for appealing.

 

36.   I would note, however, that DMS, in the written observations on the application for leave to appeal, has supported the application on one of the other grounds cited by the appellant, namely on how the appeal tribunal applied the provisions of section 73(9)(b)(i) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, and more particularly, that the application of the test in section 73(9)(b)(i) was not in conformity with the guidance given at paragraph 5 of C5/05-06(DLA).  I agree with the analysis set out in the observations from DMS and agree that the decision of the appeal tribunal was in error of law on the basis set out in the observations.

 

37.   I would also 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

 

38.   The decision of the appeal tribunal dated 1 December 2008 is in error of law. 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.

 

39.   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 30 July 2008, in which a decision-maker of the Department decided that the appellant was not entitled to DLA from and including 16 April 2008, on a new claim;

 

(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):  Kenneth Mullan

 

Commissioner

 

 

 

10 June 2010