Northern Ireland - Social Security and Child Support Commissioners' Decisions

DA-v-Department for Social Development (DLA) [2010] NICom 57

 

Decision No:  C38/10-11(DLA)

(previously Application No: A38/09-10(DLA))

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

DISABILITY LIVING ALLOWANCE

 

 

Application by the appointee of the above-named claimant for

leave to appeal and appeal to a Social Security Commissioner

on a question of law from a tribunal's decision

dated 3 November 2008

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.    The claimant’s mother has throughout these proceedings acted on behalf of the claimant as the appointee.

 

2.    The claimant was awarded the lower rate of mobility component and the highest rate of care component of disability living allowance (DLA) from 3 February 2006 to 2 February 2008.  On 16 November 2007 a renewal claim was received in the Department but the claim was disallowed on 14 January 2008 from 3 February 2008.  The claimant’s mother appealed against this decision on behalf of the claimant.  However, the tribunal on 3 November 2008 unanimously disallowed the appeal and affirmed the decision of 14 January 2008.  An application for leave to appeal to a Commissioner was refused by the legally qualified member of the tribunal on 21 April 2009.  A late application for leave to appeal was accepted by a Commissioner 13 November 2009.  Thereupon an oral application for leave to appeal was heard before the Commissioner on 19 April 2010.

 

3.    At the hearing before the tribunal there was no presenting officer acting on behalf of the Department while the claimant was represented by Ms M Anderson, of Anderson, McManus and Kearney, Solicitors.  However, at the hearing before the Commissioner the claimant was represented by Mr Thomas Anderson, of O’Reilly Stewart, Solicitors.  Mrs Claire Hulbert of Decision Making Services represented the Department.

 

4.    I grant leave to appeal and with the consent of both parties, through their representatives, I treat this application as an appeal and proceed to determine any matters arising as though they arose on appeal.

 

5.    The claimant was born on 20 July 1996.  Her father died of a heart attack aged 42 on 11 March 2005 when the claimant was aged eight.  It was discovered subsequently that the claimant’s father had a rare condition known as familial hyperlipidaemia – an inherited disorder of cholesterol which places the sufferer at an exceptionally higher risk than normal of having a heart attack.  The claimant and her sister have been confirmed as having this condition also.  Accordingly they received special medication and regular blood and health checks.

 

6.    It has been argued on behalf of the claimant that the tribunal erred in law –

 

(i)           by acting irrationally and, in particular, taking into account irrelevant considerations when coming to its decision;

 

(ii)          by being unfair in its procedures in so far as there was bias and evidence of ‘lack of engagement of one panel member, and having a closed mind’;

 

(iii)        by applying the wrong legal test to the facts of the case.

 

7.    In relation to the third issue, in my view it is not reasonably arguable that the tribunal erred in law by applying the wrong legal test.  The tribunal very carefully referred to the relevant legislation in relation to entitlement to the various components of DLA and went to some lengths in explaining, in layman’s terms, what the conditions of entitlement are.  It also dealt with, specifically, the fact that the claimant was under the age of 16 and, accordingly, applied the additional relevant test for a child.  The tribunal also set out why it considered that the claimant did not satisfy the conditions for any award.  Accordingly, I see no ground for granting leave to appeal on this point.

 

8.    In relation to the second ground of appeal it has been argued that there was a real possibility that the chairman (the legally qualified member) of the tribunal was biased against the claimant as he had sat on a similar appeal involving the claimant’s sister and refused the claim on similar grounds.  In addition, the legally qualified member considered an application for leave to appeal to a Commissioner in this case but refused it.

 

9.    It must be remembered that the claimant was represented before the tribunal.  If there had been any ground for the chairman recusing himself from the case, the claimant’s representative could and should have brought that matter up before the tribunal.  This was not done.  In any event it is not reasonably arguable that the tribunal erred in law in continuing with a case involving a sister of a claimant, where the chairman of the tribunal had heard a similar case relating to the claimant’s sister.

 

10.   In relation to the legally qualified panel member refusing leave to appeal, it is good and proper practice and within the rules for the chairman of the tribunal, who was the legally qualified panel member, to deal with any relevant applications for leave.  The provisions of regulation 58(6) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 permit other persons to deal with the application in certain circumstances but this emphasizes the fact that the normal procedure is for the application to be dealt with by the chairman/legally qualified panel member.  In any event, even if there had been a defect in the process applying for leave to appeal to the chairman/legally qualified panel member, it has been cured by the application to a Commissioner who hears and rules on the matter afresh.  Moreover, I agree with Mrs Hulbert that there is nothing to suggest that the chairman/legally qualified panel member dealt with these issues in anything other than in a professional and unbiased manner.

 

11.   It has been suggested that the doctor on the tribunal showed no interest in the proceedings.  A contemporaneous handwritten note, written by the claimant’s previous representative, has been proffered as corroboration of this fact.  However, especially when there was legal representation of the claimant, any such point should have been brought to the attention of the tribunal at the hearing.  Lack of attention has been known to occur in judicial proceedings.  However, if it is a real issue, there must be more evidence of it than a statement to that effect from the representative.  If it had been a real issue, it ought to have been ventilated before the tribunal.  Accordingly I consider that it is not reasonably arguable that the tribunal erred in law in this respect.

 

12.   In relation to the first ground of appeal it has been argued that the tribunal acted irrationally and, in particular took into account irrelevant considerations when coming to its decision.  Specifically it was submitted that the tribunal chairman made it clear to the appellant and her representative that the tribunal’s view was that the claimant’s mother had concerns for her daughter because of the fact that her father had died.  Accordingly, this “grief situation” did come about from the claimant’s care and mobility needs arising from her physical or mental condition.  In addition, it was submitted that the tribunal took into account circumstances that did not apply at the date of the decision (4 January 2008) and thus was in breach of the provision of Article 14(8)(b) of the Social Security (Northern Ireland) Order 1998, which provides that “an appeal tribunal shall not take into account any circumstances not obtaining at the time when the decision appealed against was made”.  The tribunal made reference to the claimant’s school trip of April 2008 and the educational psychologist’s report of August 2008.  This evidence was considered by the tribunal to be relevant to the question of loss of “cognitive function”.  Also it was submitted that the tribunal failed to consider the detail of the claim form which set out her physical and mental condition and her needs.

 

13.   It was also submitted that the tribunal erred in law by not dealing with the report of a Mrs M.., a school attendant, who had provided a written note of her dealings with the claimant in relation to her needs.

 

14.   It seems to me that the tribunal was entitled to consider the evidence that was available to it and was entitled to come to the conclusions to which it came.  Some of the evidence was adduced since the date of the decision-maker’s decision but, by and large, it related to the general condition of the claimant at the time of the decision.  In addition, I consider it entirely within the ambit of the tribunal’s joint expertise for it to decide whether additional care for the claimant arose out of the grief arising out of the tragic death of her father rather than any needs arising from her physical or mental condition.  It was entirely appropriate for the tribunal to consider the claimant’s grief reaction to ascertain how this had affected her mental health and, also, how it impacted on any care needs that she might have had.  It seems to me that the Departmental submissions are correct and that the tribunal was fulfilling its inquisitorial role properly in this respect.

 

15.   However, at the hearing of 21 April 2008 the tribunal specifically mentioned that the then claimant’s representative was requesting a letter from Mrs M.., an attendant at the claimant’s school.  The tribunal accepted that this evidence was potentially relevant to its decision-making process and I consider that this factor is a significant factor in this appeal.  At the resumed hearing on 3 November 2008 this note/report dated 5 August 2008 was available.  The contents were as follows:

 

“My name is S.. M.. and I am employed as Senior Supervisor at A.. P.. S...  I have known (the claimant) since she attended A.. Nursery.  At that time (the claimant) was 3 years old and I was employed as ‘Snack Lady’.

 

I got to know (the claimant) better when she moved over into the Primary School.  When she came back to school after her father’s death she started coming into the medical room to visit me at lunch time sometimes three or four times a week.  This last year has been really difficult for her, she came into see me a few times, in a terrible state saying she could not breath [sic] and seemed to be in a panic.  Also she preferred to stay in with me at lunch time and help with medical duties, cleaning cuts etc.  In general I feel (the claimant) needs more emotional support than others.”

 

       While the letter is mentioned as one of the items considered in the record of proceedings there is no reference to it or its contents in the very full reasons for the tribunal’s decision.

 

16.   Did the tribunal ignore the substance of this report?  If so, why then did it adjourn the case?  Did it accept this evidence or reject it or deal with it in any other way?  I have no difficulty in concluding that it must have thought that such evidence was potentially relevant.

 

17.   While undoubtedly this is not, as far as the claimant’s case is concerned, the prime reason for bringing these proceedings before a Commissioner, I am left in the situation where I do not know whether this evidence was considered.  It is potentially relevant because, if accepted at face value, it sheds some considerable light on the mental health of the claimant in comparison with other children.

 

18.   Therefore, although I have found that the tribunal has dealt with the main issues in this case entirely properly, I conclude that the tribunal has erred in law in not dealing with potentially relevant evidence.  Therefore I allow the appeal, set aside the tribunal’s decision and refer the matter back to a fresh tribunal for re-determination.  However, success in these proceedings should not be taken as an indicator of ultimate success before that tribunal.

 

 

(signed):  J A H Martin QC

 

Chief Commissioner

 

 

 

28 June 2010