JL-v-Department for Social Development (DLA) [2010] NICom 55

 

                                        Decision No: C34/09-10(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 25 June 2009

 

 

                   DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

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

 

2.       The decision of the appeal tribunal dated 25 June 2009 is not in error of law. Accordingly, the appeal to the Social Security Commissioner does not succeed. The decision of the appeal tribunal to the effect that the appellant is entitled to an award of the middle rate of the care component and the lower rate of the mobility component of disability living allowance (DLA), from 1 June 2009 to 31 May 2012 is confirmed.

 

Background

 

3.       On 5 February 2009, a decision-maker of the Department decided that the appellant was entitled to the lowest rate of the care component of DLA from 1 June 2009 to 31 May 2011, on a renewal claim.

 

4.       An appeal against the decision dated 5 February 2009 was received in the Department on 25 February 2009.

 

5.       The appeal tribunal hearing took place on 25 June 2009. The appellant was present, was accompanied by her husband and was represented. The Department was represented by a Departmental presenting officer.

 

6.       The appeal tribunal allowed the appeal, and substituted its own decision to the effect that the appellant should be entitled to an award of the middle rate of the care component and the lower rate of the mobility component of DLA, from 1 June 2009 to 31 May 2012. 

 

7.       On 18 August 2009 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service. The grounds cited in the application were that:

 

(i)       the appeal tribunal had erroneously overlooked the fact that she satisfied, and had for some time satisfied, the criteria in section 37ZB(1)(a), (b) and (c) of the Disability Living Allowance and Disability Working Allowance (Northern Ireland) Order 1991, therefore qualifying for the highest rate of the weekly care component under section 37ZB(4) and by virtue of this she met the requirements of section 37ZC(3) and (1) therefore qualifying for the highest rate of the weekly mobility component under section 37ZC (ii); and

 

(ii)      the record of proceedings for the appeal tribunal hearing were inaccurate as the comments of the presenting officer had been inaccurately recorded. More specifically, the presenting officer had stated in relation to the mobility component that it was a difficult decision  to decide on the papers presented but that ‘…seeing the appellant he was prepared to conceed [sic] to high mobility middle rate care. While the tribunal are entitled to come to their own conclusion based on the evidence before them, I feel that they erred in law by not making it clear to either me or my representative that they disagreed with the presenting officer on that point of mobility.’

 

8.       On 21 August 2009, leave to appeal was granted by the legally qualified panel member (LQPM). In granting leave to appeal, the LQPM indicated that she would like the Social Security Commissioner to consider all of the issues raised by the appellant in her application for leave to appeal.

 

Proceedings before the Social Security Commissioner

 

9.       On 23 September 2009, the appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners.

 

10.     On 1 October 2009, further correspondence in connection with the appeal was received from the appellant.

 

11.     On 17 November 2009 observations were sought from Decision Making Services (DMS) and these were received on 4 December 2009. DMS opposed the application on both grounds cited by the appellant.

 

12.     Observations were shared with the appellant on 11 December 2009.

 

 

 

 

Errors of law

 

13.     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.

 

14.     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.”

 

Was the decision of the appeal tribunal in the instant case in error of law?

 

15.     In relation to the first ground in the application for leave to appeal to the Social Security Commissioner, DMS have submitted the following:

 

In respect of this issue (the claimant) has included a copy of Article 3 of the Disability Living Allowance and Disability Working Allowance (NI) Order 1991 which inserted sections 37ZA, 37ZB and 37ZC into the Social Security (NI) Act 1975.  These provisions were subsequently consolidated as sections 71, 72 and 73 respectively, of the Social Security Contributions and Benefits (NI) act 1992 and were supplied to (the claimant) by her solicitors who have advised her to rely on the following –

 

“The Appeal Tribunal have erroneously overlooked the fact that I satisfy (and have for some time) satisfied the criteria in Section 37ZB(1) (a), (b) and (c) of the Disability Living Allowance and Disability Working Allowance (NI) Order 1991 therefore qualifying for the highest rate of the weekly care component under Section 37ZB(4) and by virtue of this I meet the requirements of Section 37ZC(3) and (1) therefore qualifying for the highest rate of the weekly mobility component under Section 37ZC(11).”

 

The solicitor added the following –

 

“….. In brief the above states that since you meet the requirements of high rate care allowance (due to the fact that you require help in relation to your bodily functions – ….. helps you use the toilet as stated in the hearing Records), you automatically qualify for high rate mobility.”

 

Section 37ZB(1)(a), (b) and (c) and (4) of the Social Security (NI) Act 1975 provide for the care component and was consolidated as section 72(1)(a)(b) and (c) and (4) of the Social Security Contributions and Benefits (NI) Act 1992.  Subsection (4) provides, subject to satisfying conditions throughout the qualifying period and the prospective period set out in subsection (2), that if a person satisfies the requirements of subsection (1)(b) and (1)(c), the highest rate care component is payable. 

 

Section 37ZC(1), (3) and (11) of the Social Security (NI) Act 1975 provide for the mobility component and was consolidated as section 73(1), (3) and (11) of the Social Security Contributions and Benefits (NI) Act 1992.   Subsection (11) provides, subject to satisfying conditions throughout the qualifying period and the prospective period set out in subsection (9), that if a person satisfies the requirements in subsection (1)(a), (b) or (c) the higher rate mobility component is payable. Subsection (1)(b) refers to persons who fall within subsection (2) (the blind and deaf) and subsection 1(c) refers to persons who fall within subsection (3) (the severely mentally impaired and who display severe behavioural problems and who satisfy the conditions of entitlement to the highest rate care component).  (The claimant) has made no case that she is blind or deaf, nor has she made any case that she is severely mentally impaired and I submit that section 73(3) has no application to this case.’ 

 

16.     I accept this submission from DMS in its entirety. The duty of the appeal tribunal was to apply the relevant legislative provisions and to determine whether the appellant had an entitlement to the higher rate of the mobility component of DLA. Whatever the position might have been in the past, at present there is no provision for the automatic pass-porting of an individual with an entitlement to the highest rate of the care component of DLA to the higher rate of the mobility component of that benefit. There are separate conditions of entitlement to the two components set out in different legislative provisions.

 

17.     In relation to the second ground set out in the application for leave to appeal to the Social Security Commissioner, in CSC3/07-08, I said the following about the role and function of presenting officers, at paragraphs 68 to 71:

 

’68.     The importance of the presence of a presenting officer, at an oral hearing of an appeal, cannot be over-emphasised. That attendance serves a number of significant functions. Firstly, it provides the appellant with a visible confirmation that the Department is a party to the proceedings, which, in turn, serves to emphasise the independence of the appeal tribunal. Secondly, the presenting officer is able to make submissions to the appeal tribunal, on the legal and evidential issues arising in the appeal. In so doing, the officer can address any conflicts which have arisen, possibly as a result of further evidence adduced by the appellant, at the oral hearing. Further the officer can test the appellant’s evidence, by asking questions of the appellant or any witness who also attends. Thirdly, the officer can provide answers to any queries which the appellant may have concerning the handling of the case at Departmental level. Finally, the officer, in the role of amicus curiae, can raise points not addressed by the appellant, or the appeal tribunal, and, on the basis of what has been seen and heard at the oral hearing, make relevant concessions and compromises.     

 

69.     In the absence of a presenting officer, the appeal tribunal, as part of its inquisitorial role, is entitled to consider and determine questions which are relevant to the issues rising in the appeal. Where an officer of the Department is not present, however, there is a risk of a perception on the part of the appellant that the appeal tribunal is taking on the Department’s task. The presence of an officer contributes to a transparent balance to the proceedings – two parties and an independent appeal tribunal. When an officer fails to attend, that balance is upset and an appellant might be sensitive about the role which the appeal tribunal subsequently takes on. 

 

70.     In R(IS) 17/04, a Tribunal of Commissioners in Great Britain, has emphasised that the adoption of an inquisitorial role does not mean that the appeal tribunal’s impartiality or independence has been affected. At paragraph 30 the Commissioners stated:

‘The duty of a tribunal to investigate the issues before it can legitimately involve the chairman questioning the claimant, even with probing questions – see, for example, the decision of a Tribunal of Commissioners in R(S) 4/82, particularly at paragraphs 27 to 28. In that case it was pointed out by the Tribunal that it was the clear duty of the tribunal members, in the exercise of their investigatory functions, to ask the claimant the obvious questions which arose: and there could be no question of “bias” or unfairness in the mere fact that they did so. Of course any interventions by the chairman himself to identify points that required an answer would have to be made carefully and phrased factually and neutrally: but that is a skill developed and deployed by all chairmen experienced at conducting proceedings of an inquisitorial nature, and as often needed when parties are represented as when they are not.’

71.     The appeal system in relation to social security operates most effectively, and transparently effectively, when there is a presenting officer in attendance at an oral hearing of an appeal. Accordingly, it is best practice for the Department to arrange for the presence of a well-informed officer, conversant with the issues arising in the specific appeal, and ready, as amicus curiae, and as and when required by the appeal tribunal, to assist the tribunal in carrying out its role.’

 

18.     While I have confirmed that a presenting officer is in a position, on behalf of the Department, to make relevant concessions and compromises, it is important to emphasise that the appeal tribunal is not under an obligation to accept any such concession. An appeal tribunal is wholly independent and its task is to determine the issues arising in the appeal by a proper application of the law to the facts as found, following an assessment of all of the evidence.  

 

19.     It is important to note that in the instant case, the record of proceedings for the appeal tribunal hearing does not make any reference to a concession by the presenting officer that entitlement to the higher rate of the mobility component was appropriate, although there is a record of a submission with respect to the care component. Even if there is an error in the record of proceedings to that effect, there is no parallel error of law, as the appeal tribunal would not have been obliged to accept any such concession. 

 

20.     Although it is not altogether clear, it may be the case that the appellant is submitting that once the concession had been made by the presenting officer, the applicant and her representative should have been permitted to make representations in connection with that concession. Alternatively, the applicant may be submitting that the appeal tribunal, had it formed a view that the concession was not appropriate, should have given an indication to that effect.

 

21.     The applicant was represented at the appeal tribunal hearing by an experienced professional representative who would have had sound knowledge of the practices and procedures of the appeal tribunal. He would have been aware that he could have made representations on any submission made by the presenting officer. Further, he would have been aware that the appeal tribunal would not have commenced its deliberations on any of the issues arising in the appeal, including entitlement to the higher rate of the mobility component until all evidence and oral submissions had been heard and the parties to the proceedings had left the appeal tribunal hearing room.

 

22.     Accordingly, I cannot find that the decision of the appeal tribunal is in error of law on the basis of either ground set out in the application for leave to appeal.

 

Disposal

 

23.     The decision of the appeal tribunal dated 25 June 2009 is not in error of law. Accordingly, the appeal to the Social Security Commissioner does not succeed. The decision of the appeal tribunal to the effect that the appellant is entitled to an award of the middle rate of the care component and the lower rate of the mobility component of DLA, from 1 June 2009 to 31 May 2012 is confirmed.

 

 

          (Signed):  K Mullan

 

          COMMISSIONER

 

 

 

          15 June 2010