Northern Ireland - Social Security and Child Support Commissioners' Decisions

MG-v-Department for Social Development (DLA) [2010] NICom 42

 

Decision No:  C11/10-11(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 9 June 2009

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.     This is an appeal by the claimant, with the leave of a Commissioner, against the decision of the tribunal to the effect that she is not entitled to either the care or mobility components of disability living allowance (DLA) from and including 16 July 2008.

 

2.     Having considered the circumstances of the case and any reasons put forward in the request for a hearing, I am satisfied that the appeal can properly be determined without a hearing.

 

3.     In coming to my decision I have been assisted by the appeal form setting out the claimant’s case and also by Mrs C Hulbert of Decision Making Services who has made written submissions on behalf of the Department.  The claimant did not take the opportunity to make written comments on Mrs Hulbert’s submissions.

 

4.     On 16 July 2008 the claimant made a claim for DLA stating that she had memory loss, arthritis and depression.  On 12 December 2008 it was decided that the claimant’s claim should be disallowed from and including 16 July 2008.  The claimant then appealed to a tribunal.  On appeal the tribunal affirmed the decision of the decision-maker.

 

5.     The claimant then sought leave from the legally qualified member (LQM) to appeal to a Commissioner.  However, leave was refused on 25 August 2009.  The claimant then sought leave from a Commissioner.  A Commissioner on 4 March 2010 granted leave for the following reasons:

 

“The decision might be wrong in law, because it is reasonably arguable that the tribunal failed to take into account the contents of a written submission made by the claimant setting out her physical and mental condition.”

 

6.     The claimant has contended that the tribunal erred on the following grounds:

 

(1)   apart from dwelling on her memory loss, the tribunal appear to have ignored other problems that she had;

 

(2)   the tribunal does not appear to have given due regard to her memory loss and, in addition, the tribunal did not give the claimant an opportunity to produce certain evidence that was not available on the day of the tribunal hearing.

 

7.     The points made on behalf of the claimant appear to have no merit.  The tribunal, subject to the matter addressed at a later stage of this decision, has clearly considered all relevant problems that the claimant might have had and, in addition, there is no indication that any other evidence was potentially available in the future.  The tribunal was entitled to rely on the evidence that was before it in reaching its decision and has not erred in law, in my view, subject to the matter dealt with below, in the respects alleged.

 

8.     Mrs Hulbert, correctly remembering the role of the Department as ‘amicus curiae’ in appeals such as the present one, has drawn to my attention that there might be an error in law in the way the tribunal dealt with a written submission that was handed in at the hearing.  The reasons for the tribunal’s decision specifically records that it took into account the general practitioner notes and records, the evidence set out in the Departmental submission as well as the oral evidence to the tribunal.  However, there is no reference to a submission on 11 paragraphs headed ‘Submission on behalf of (the claimant)’.  This document sets out in some detail, presumably in the claimant’s words, what her condition, especially her medical condition, was.  It is noted in the record of proceedings that this submission was before the tribunal.  However, there is no mention, explicit or implicit, of it thereafter.  It may be that the tribunal did consider the submission and, perhaps found it to be of little value.  However, as Mrs Hulbert has pointed out, if that was the case, the tribunal ought to have given reasons why it rejected the submission.

 

9.     This situation is similar to that set out by me in decision C14/00-01(DLA).  In that case, at paragraph 25, I noted that:

 

“… 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.”

 

10.       In this particular case the tribunal, through the LQM, has been specifically careful to note and deal with all other evidence in the case.  Therefore, the omission of any specific reference to the written submission is even more surprising.

 

11.       In my view it is relatively clear that, unfortunately, this document was overlooked when the tribunal was involved in its decision-making process.  In light of that finding I must conclude also that the tribunal’s decision is erroneous in law.  Therefore, I allow the appeal and set aside the tribunal’s decision.  In the circumstances I refer the case back to a differently constituted tribunal for a rehearing.  The fact that this appeal to a Commissioner has been successful should not be taken as an indication of ultimate success of the proceedings before the fresh tribunal.

 

 

(signed):  J A H Martin QC

 

Chief Commissioner

 

 

 

11 May 2010