WC-v-Department for Social Development (DLA) [2010] NICom 89

Decision No: C57/10-11(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 15 August 2008

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1. Having considered the circumstances of the case, and any reasons put forward in the request for a hearing, 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 15 August 2008 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 not entitled to either component of disability living allowance (DLA) from and including 13 March 2008 is confirmed.

 

Background

 

4. On 13 August 2007 a decision-maker of the Department decided that the appellant was entitled to the middle rate of the care component of DLA from and including 25 April 2007.

 

5. On 31 January 2008 a telephone call was received in the Department in which it was indicated that the appellant’s circumstances had changed. Following the receipt of further information from the appellant, and the report of an examination undertaken by an examining medical practitioner, a decision-maker decided, on 13 March 2008 that there were no grounds to supersede the decision of 13 August 2007.

 

6. An appeal against the decision dated 13 March 2008 was received in the Department on 16 April 2008.

 

7. The substantive appeal tribunal hearing took place on 15 August 2008. The appellant was present accompanied by his wife. The Department was represented by a Departmental presenting officer. The appeal tribunal disallowed the appeal and did not confirm the decision dated 13 March 2008. Instead it substituted its own decision to the effect that the appellant was not entitled to either component of DLA from and including 13 March 2008.

 

8. On 4 February 2009 an application for leave to appeal to the Social Security Commissioner was received in The Appeals Service (TAS).

 

9. On 16 May 2009 the application for leave to appeal was refused by the legally qualified panel member (LQPM).

 

Proceedings before the Social Security Commissioner

 

10. On 19 June 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.

 

11. On 8 September 2009 observations were sought from Decision Making Services (DMS) and these were received on 24 September 2009. DMS opposed the application on the grounds submitted by the appellant’s representative.

 

12. Observations were shared with the appellant and his representative on 2 October 2009.

 

13. Written observations in reply were received from the appellant’s representative on 2 November 2009 which were shared with DMS on 5 November 2009.

 

14. On 15 December 2009 the legal officer to the Commissioners directed the clerk to the appeal tribunal to provide answers to two questions in connection with the statement of reasons for the appeal tribunal’s decision.

 

15. On 18 December 2009 a reply was received from the clerk to the appeal tribunal which was shared with the appellant, his representative and DMS on 21 December 2009.

 

16. On 22 January 2010 further observations were received from the appellant’s representative.

 

17. On 11 March 2010 the legal officer to the Commissioners directed the clerk to the appeal tribunal to provide answers to a further question in connection with the statement of reasons for the appeal tribunal’s decision.

 

18. On 12 April 2010 a reply was received from the clerk to the appeal tribunal which was shared with the appellant, his representative and DMS on 19 April 2010.

 

19. On 7 May 2010 a final submission was received from the appellant’s representative which was shared with DMS on 11 May 2010.

 

Errors of law

 

20. 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.

 

21. 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?

 

22. Regulation 53(4) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, provides that:

 

‘(4) Subject to paragraph (4A), a party to the proceedings may apply in writing to the clerk to the appeal tribunal for a statement of the reasons for the tribunal’s decision within one month of the sending or giving of the decision notice to every party to the proceedings or within such longer period as may be allowed in accordance with regulation 54 and following that application the chairman or, in the case of a tribunal which has only one member, that member, shall record a statement of the reasons and a copy of that statement shall be sent or given to every party to the proceedings as soon as may be practicable.’

 

23. Regulation 4A does not have a direct applicability in the instant case.

 

24. My understanding of the practice and procedure with respect to the preparation of a statement of reasons in this jurisdiction is as follows. Following the promulgation of the decision notice for the appeal tribunal’s decision, on the day of the oral hearing of the appeal, the LQPM of the appeal tribunal may choose either to prepare the statement of reasons in draft form, or assimilate preparatory notes to facilitate the preparation of a statement of reasons should such a statement be requested subsequently under the provisions of regulation 53(4). My understanding is that the clerk to the appeal tribunal will not issue a statement of reasons, as of right, and even where a draft statement has been prepared until a regulation 53(4) request has been made.

 

25. Following the making of a regulation 53(4) request, all of the paperwork relevant to the oral hearing of the appeal is sent to the LQPM of the appeal tribunal. If the LQPM has prepared a draft statement of reasons, which has been held on the TAS file, a copy of this statement of reasons will also be forwarded to the LQPM. The LQPM will then record a statement of reasons, which may involve its preparation in accordance with the preparatory notes, or by way of confirmation of the existing draft. The LQPM will then return the statement of reasons to TAS in order that the statement can be typed up and recorded on the template form for statements of reasons. The provision of a typed-up copy of the statement of reasons is of considerable advantage to the party to the proceedings seeking the same, and avoids problems associated with legibility of hand-writing.

 

26. There may then follow an exchange between the LQPM and TAS, as any inaccuracies in the typed statement of reasons are clarified and amended. Finally, the LQPM will sign and date the final version of the statement of reasons which are issued by the clerk to the appeal tribunal pursuant to regulation 53(4).

 

27. It is also important to note that where the benefit at issue in the appeal is DLA, the usual practice is for the LQPM to record separate statements of reasons for the appeal tribunal’s decisions with respect to the care and mobility components. Occasionally, the LQPM may produce a combined statement of reasons for both components.

 

28. In the instant case, my conclusions with respect to the preparation and issue of the statement of reasons, which are based on the replies to the directions issued to TAS, are as follows. The decision notices for the appeal tribunal’s decisions with respect to the care and mobility components were promulgated by the LQPM, and signed by her, on 15 August 2008, the day of the oral hearing of the appeal. The decision notices were not issued to the parties to the proceedings by the clerk to the appeal tribunal until 19 August 2008. I am unaware of the reason for the delay in the issue of the decision notices.

 

29. Statements of reasons for the appeal tribunal’s decisions with respect to the care and mobility components were prepared by the LQPM on 15 August 2008. This is confirmed by correspondence from the clerk to the appeal tribunal dated 17 December 2009.

 

30. On 27 August 2008 a regulation 53(4) application for a statement of reasons for the appeal tribunal’s decision was received in TAS. On 10 September 2008, the documentation relevant to the appeal, including, I assume, the draft statements of reasons were forwarded by the clerk to the appeal tribunal to the LQPM for formal completion.

 

31. The signed and completed statements of reasons for the appeal tribunal’s decisions with respect to the care and mobility components of DLA were received in TAS, from the LQPM on 18 December 2008. I am unaware of the reason for the delay in the return of the statements of reasons to TAS by the LQPM.

 

32. On 5 January 2009, and pursuant to the request made on 27 August 2008, the clerk to the appeal tribunal issued to the appellant two copies of the statement of reasons with respect to the care component of DLA. The clerk to the appeal tribunal omitted to issue the statement of reasons for the mobility component, which had been received in TAS from the LQPM on 18 December 2008.

 

33. On 4 February 2009, an application for leave to appeal to the Social Security Commissioner was received in TAS. The application was based on an adequacy argument based on the fact that the appellant had not received any reasons with respect to the decision in connection with the mobility component of DLA. Although I cannot be certain, it was at this stage that the clerk to the appeal tribunal, possibly alerted by the LQPM, realised that an error had been made involving the failure, on 5 January 2009 to issue the statement of reasons with respect to the appeal tribunal’s decision in connection with the mobility component of DLA. Accordingly, on 2 March 2009, the clerk to the appeal tribunal wrote to the appellant, his representative, and the Department, advising them of the error which had taken place and re-issuing the statements of reasons for both the care and mobility components of DLA.

 

34. The clerk to the appeal tribunal wrote again to the appellant’s representative on 21 April 2009 to give a further explanation in connection with the error which had occurred.

 

35. I conclude that the error which took place concerning the issue of the statements of reasons was an administrative error in TAS, and no blame, in connection with the error lies with the appeal tribunal or the LQPM.

 

36. Does all of this render the decision of the appeal tribunal as being in error of law? The appellant’s representative submits that it does. He submits that:

 

(i) the statement of reasons which was issued on 5 January 2009 was the final statement of reasons for the appeal tribunal’s decision;

 

(ii) the issue of the statement of reasons for the mobility component of DLA, on 2 March 2009 amounted to a supplement to or amendment to the original statement of reasons; and

 

(iii) that based on the principles in CA/4297/2004 there was no statutory power for there to be a further, additional, alternative or substitute statement of reasons to be issued by a LQPM.

 

37. With respect to the appellant’s representative, I cannot accept that the decision of the appeal tribunal is in error of law, as argued. In CA/4297/2004, the facts were highly unusual. In that case, and on receipt of an application for leave to leave to appeal to the Social Security Commissioner, a full-time Chairman of Appeal Tribunals instructed the LQPM to supplement the statement of reasons which had already been issued.

 

38. I am wholly in agreement with the principles set out by the Great Britain Social Security Commissioner as they applied to the facts of that case. In the instant case, and as was noted above, no blame can be attached to the LQPM of the appeal tribunal. She was asked, pursuant to a regulation 53(4) request, to provide a statement of reasons for the appeal tribunal’s decision. In due course she forwarded separate statements of reasons for the appeal tribunal’s decisions with respect to the care and mobility Components of DLA. She would have expected the clerk to the appeal tribunal to action the statements of reasons in the normal way. Unfortunately mistakes happen. In this case, the error was that of the administration in TAS. That error cannot, in my view, be laid at the feet of the appeal tribunal.

 

39. The appellant’s representative is correct to submit that the error by the clerk to the appeal tribunal might have had an adverse effect on the appellant’s further rights, to seek leave to appeal, for example, within the statutory time limits. I am certain, however, that had that problem arisen, and in the knowledge of the error which had occurred, sufficient remedial action to preserve the appellant’s rights could have been taken by the LQPM or the Social Security Commissioner.

 

40. The appellant’s representative has raised an issue concerning the statements of reasons which were issued on 5 January 2009, and an apparent disparity in the signatures on two copies of what should have been the same statements of reasons. Nothing, in my view, turns on that.

 

41. Finally, I have noted that the appellant’s representative has not raised any substantive challenge to the appeal tribunal’s decision of the statements of reasons in connection with those statements. That is correct, in my view. Read as a whole, the statement of reasons for the appeal tribunal’s decision provides a detailed explanation of the basis on which the appeal tribunal arrived at its conclusions on the issues before it.

 

Disposal

 

42. The decision of the appeal tribunal dated 15 August 2008 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 not entitled to either component of DLA from and including 13 March 2008 is confirmed.

 

 

(signed) K Mullan

 

Commissioner

 

 

 

23 September 2010