PC v Department for Social Development (DLA) [2010] NICom 23

 

                                    Decision No: C17/10-11(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 19 August 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 19 August 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 her 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 22 February 2008 a decision-maker of the Department superseded an earlier decision of the Department, dated 21 June 2006. The earlier decision of the Department had awarded an entitlement to the middle rate of the care component of DLA from and including 6 February 2006 and the higher rate of the mobility component of DLA from 10 March 2006 to 9 March 2008. The decision dated 22 February 2008 also decided that the appellant was not entitled to DLA from and including 22 February 2008.

 

9.         An appeal against the decision dated 22 February 2008 was received in the Department on 3 March 2007.

 

10.       The appeal was listed for oral hearing on 20 June 2008. The appellant was not present nor was a presenting officer from the Department. The appeal was adjourned with the stated reasons for adjournment being that the appellant’s medical notes and records had been sent to The Appeals Service (TAS) office in Omagh. 

 

11.       The appeal was listed for oral hearing on 21 July 2008. The appellant was not present nor was a presenting officer from the Department. The appeal was adjourned with the stated reasons for adjournment being that the appellant’s general practitioner notes were not available to the appeal tribunal.

 

12.       The substantive hearing of the appeal took place on 19 August 2008. The appellant was not present and the Department was represented by a presenting officer. The appeal tribunal disallowed the appeal and confirmed the decision dated 22 February 2008 to the effect that the appellant was not entitled to DLA from and including 22 February 2008.

 

13.       On 4 February 2009 an application for leave to appeal to the Social Security Commissioner was received in TAS.

 

14.       On 10 February 2009 the application for leave to appeal was refused by the legally qualified panel member.

 

15.       On 22 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).

 

16.       On 16 April 2009 observations were sought from Decision Making Services (DMS) and these were received on 12 May 2009. DMS opposed the application.

 

17.       Observations were shared with the appellant on 27 May 2009.

 

18.       On 1 June 2009, written correspondence in reply to the observations from DMS was received in OSSC. This written correspondence was shared with DMS on 6 July when DMS were also asked to comment on an issue raised by the legal officer.

 

19.       On 9 July 2009 further observations were received from DMS which were shared with the appellant on 22 July 2009.

           

20.       On 16 November 2009, DMS were asked to comment on the extent to which the appeal tribunal had taken into account the evidence relating to the appellant’s problems with ‘drop foot’ in assessing whether the appellant had any entitlement to the higher rate of the mobility component of DLA.

 

21.       On 20 November 2009 a reply was received from DMS in relation to the specific question forwarded to them on 16 November 2009. In summary, DMS noted that they were unable to:

 

‘…measure the extent the appeal tribunal have placed on the evidence relating to (the claimant’s) problem with foot drop other than state that the decision shows that the tribunal did take into account that evidence when deciding if she had care or mobility needs.’

 

Errors of law

 

22.       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.

 

23.       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?

 

24.       The statement of reasons for the appeal tribunal’s decision is a composite one for its decisions in respect of both the mobility and the care components of DLA.

 

25.       The major part of the statement of reasons is taken up with the appeal tribunal’s conclusions on whether the Department, on 22 February 2008, had grounds to supersede an earlier decision of the Department, dated 21 June 2006.

 

26.       The appeal tribunal was correct to identify that the decision under appeal was a supersession decision. The decision-making process had been as follows. On 21 June 2006, a decision-maker had awarded an entitlement to the middle rate of the care component of DLA from and including 6 February 2006 and the higher rate of the mobility component of DLA from 10 March 2006 to 9 March 2008. There had been even earlier claims to the relevant benefit. Towards the end of the fixed-period of the award of the mobility component of DLA, the appellant had submitted a renewal claim form. The Department had treated the receipt of the renewal claim form as an application for a supersession of the decision dated 21 June 2006. The Department was correct to advance the decision-making process in this way – see the decision of the Tribunal of Commissioners in Great Britain in R(IB) 2/04 at paragraph 146.

 

27.       In the instant case, the appeal tribunal has undertaken a thorough and rigorous analysis of the supersession issue and, in my view, has identified the evidential and legal basis on which the Department, on 22 February 2008, had grounds to supersede an earlier decision of the Department, dated 21 June 2006. Accordingly, this aspect of the appeal tribunal’s decision and its reasons for that aspect of the decision cannot be faulted.

 

28.       Thereafter the statement of reasons for the appeal tribunal’s decision, remembering that the statement was a composite one for both components of DLA, reads as follows:

 

‘The General Practitioner notes concur with the Examining Medical Practitioner report and the Tribunal accepts the Examining Medical Practitioner report and concurs with the Department submission. This lady lives alone, works full time, has a reasonable degree of control over her epilepsy and there is “receding” of her disc bulge. The Tribunal is of the view that she can care for herself, is safely mobile in unfamiliar places and can walk a reasonable distance at a reasonable pace and in a reasonable manner before the onset of severe discomfort.’

 

29.       The question which I have to address is whether these three sentences are sufficient to explain why the appeal tribunal decided that the appellant should not have an entitlement to either component of DLA.

 

30.       I would say, at the outset, that there is no link between brevity of reasons and lack of adequacy of reasons. The conclusions of an appeal tribunal can be explained in a succinct and brief manner provided those reasons are logical, coherent and are not perverse. Further I see no difficulty with an appeal tribunal accepting in their entirety, the submissions made by the Department on the issues pertinent to the appeal and the evidential basis on which those submissions are made. In the instant case, that equated to the appeal tribunal accepting the Department submission which, it reasoned, concurred with the findings and conclusions set out in the report of the examination undertaken by the examining medical practitioner (EMP).

 

31.       What concerns me about the reasons in the instant case is that the appeal tribunal, in its assessment of the appellant’s disabilities and, as a corollary, the appellant’s functional ability consequent on those disabilities, has limited itself to consideration of the appellant’s epilepsy and back problems.

 

32.       In the renewal claim form to DLA, the appellant had submitted that the majority of her problems with mobility, both in relation to her physical ability to walk, and in relation to a requirement to have someone with her when she was walking out of doors, related to her problems with ‘foot drop’, rather than any sequelae from her epilepsy or her back problem.

 

33.       I accept that the appeal tribunal has recognised that the appellant suffers from ‘foot drop’. There is a general statement to that effect in the third sentence of the statement of reasons. Thereafter there is a detailed analysis of the extent and degree of the appellant’s problems with epilepsy and back problems, in the context of the appeal tribunal’s consideration of the supersession issue and whether there had been a relevant change of circumstances.

 

34.       I accept, additionally, that the appeal tribunal had accepted the findings and conclusions set out in the report of the examination undertaken by the EMP, and that as part of the examination undertaken by the EMP, there had been a detailed analysis of the appellant’s problems with ‘foot drop’ and the consequences of that problem. Those consequences included an acceptance by the EMP that the appellant had a ‘significant foot drop’, and a ‘permanent deformity’ of her foot. I also accept that the opinion of the EMP on the appellant’s level of functional ability and limitations on her mobility, included an assessment which included the acceptance of a significant ‘foot drop’ problem.

 

35.       Nonetheless, it is clear that the appellant’s problems with ‘foot drop’, rather than problems with epilepsy or with her back, formed the substantive basis on which she sought the reinstatement of her entitlement to the mobility component of DLA whether at the higher or lower rate. Accordingly, and although the issue is a narrow one, I am of the view that it was incumbent on the appeal tribunal to give an explicit explanation as to why the appellant did not satisfy the conditions of entitlement to the mobility component on the basis of her submitted problems with ‘foot drop’.

 

36.       The issue having been raised by the appellant meant that the appeal tribunal was under a duty to consider it. That required the appeal tribunal to acknowledge, in its statement of reasons that the issue was considered by the appeal tribunal. It required the appeal tribunal to indicate what it made of the evidence concerning the problems with ‘foot drop’, and having assessed that evidence, make sufficient findings of fact in connection with the issue. Finally, the issue having been raised by the appellant, in the renewal claim form to benefit, and in her oral evidence to the appeal tribunal, the appellant was entitled to know, through the statement of reasons, what was the appeal tribunal’s determination in connection with the issue, and the reasons for its conclusions in connection with it.

 

37.       Having found that the appeal tribunal was under a duty to consider the relevant issue, and having failed to consider that issue, 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.

 

Disposal

 

38.       The decision of the appeal tribunal dated 19 August 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.       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.

 

40.       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 22 February 2008, in which a decision-maker of the Department superseded an earlier decision of the Department, dated 21 June 2006. The earlier decision of the Department had awarded an entitlement to the middle rate of the care component of DLA from and including 6 February 2006 and the higher rate of the mobility component of DLA from 10 March 2006 to 9 March 2008. The decision dated 22 February 2008 also decided that the appellant was not entitled to DLA from and including 22 February 2008;

 

(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)             the appellant will wish to consider whether it is beneficial for her to obtain representation with respect to the appeal proceedings;

 

(iv)              the appellant will wish to consider whether it is beneficial for her to attend the further oral hearing of the appeal in order that she may give oral evidence in connection with the issues arising in the appeal, and which are of importance to her;

 

(v)                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

 

 

 

 

 

 

 

 

 

(vi)              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):  K Mullan

 

            COMMISSIONER

 

 

 

            25 March 2010