NH-v-Department for Social Development (DLA) [2010] NICom 29

 

Decision No:  C22/10-11(DLA)

 

 

 

 

IRO:   (A CHILD)

 

 

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 1 October 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 1 October 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’s mother notes that while the decision of the appeal tribunal has been set aside, the issue of the entitlement of her son 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.     The decision under appeal is a decision of the Department, dated 12 February 2008, which decided that the appellant was not entitled to DLA from and including 27 April 2008 on a renewal claim.  The decision dated 12 February 2008 was reconsidered but not changed on 6 March 2008.  The appeal was received in the Department on 31 March 2008.

 

9.     An appeal tribunal hearing took place on 4 August 2008.  The appellant’s mother and grandmother attended the appeal tribunal hearing.  The appeal was adjourned to enable the appellant’s mother to obtain general practitioner (GP) records.

 

10.   The substantive appeal tribunal hearing took place on 1 October 2008.  The appeal tribunal disallowed the appeal, and confirmed the decision dated 12 February 2008.  The copy of the record of proceedings (ROPS) for the appeal tribunal hearing makes no reference as to who was in attendance.

 

11.   On 2 March 2009 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.  On 9 March 2009, the application for leave to appeal was refused by the legally qualified panel member.

 

Proceedings before the Social Security Commissioner

 

12.   On 6 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.

 

13.   On 19 May 2009 observations were sought from Decision Making Services (DMS) and these were received on 18 June 2009.  DMS opposed the application on most of the grounds cited by the applicant.  DMS did, however, submit that the appeal tribunal had been in error of law in not dealing with a particular piece of evidence but that this error did not vitiate the appeal tribunal’s decision.  Observations were shared with the appellant’s mother on 23 June 2009.  On 20 July 2009, a further submission in reply was received from the appellant’s mother.  On 2 September 2009, further observations were received from DMS which were shared with the appellant’s mother on 3 September 2009.  Further correspondence was received from the appellant’s mother on 14 September 2009.

 

Errors of law

 

14.   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.

 

         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.”

 

The error of law in the instant case

 

The submissions of the parties

 

15.   In the application for leave to appeal to the Social Security Commissioner, the appellant’s mother submitted that the decision of the appeal tribunal was in error of law on the basis that:

 

(i)             she was overwhelmed at the appeal tribunal hearing and did not have the expertise or knowledge to explain her son’s medical conditions and needs;

 

(ii)           the disability qualified panel member did not have the experience of the disability from which her son suffered;

 

(iii)         relevant medical evidence was ignored;

 

(iv)          the appeal tribunal’s conclusions were based on generalisations and not on a personal level to him; and

 

(v)            the statement of reasons (SORs) for the appeal tribunal’s decision incorrectly recorded the form in which her son took his medication.

 

16.   As was noted above, DMS opposed the appeal on all of the grounds cited by the appellant’s mother.  DMS did, however, submit that the appeal tribunal had been in error of law in not dealing with a particular piece of evidence but that this error did not vitiate the appeal tribunal’s decision.

 

Analysis

 

17.   The SORs for the appeal tribunal’s decision has been prepared with a great deal of care and attention.  How, therefore, did the appeal tribunal err in law?

 

18.   In the renewal claim to DLA, a copy of which was attached to the original appeal submission as Tab No 1, the appellant’s mother outlined a range of care, attention and supervision needs which she submitted arose from her son’s disability, and problems which he has with his mobility.

 

19.   At pages 6 to 7 of the renewal claim form, the appellant’s mother states that her son has problems with walking outdoors and requires someone to be with him while walking outdoors.

 

20.   At page 18 of the renewal claim form, the appellant’s mother stated that her son required help with his medication, adding that:

 

‘When giving him his tablets I don’t trust him enough to take his tablets.  I have to stand over and watch him swallow them.  I also check under his tongue to see if he has definitely taken them.  Because he knows what the outcome will be.’

 

21.   At page 20 of the renewal claim form, the appellant outlined problems which her son had with frustration and temper which required the provision of support to calm him down.

 

22.   In the papers which are before me is a copy of a letter from Dr O’C….., who is a GP.  Although it is nowhere mentioned in the ROPs for either the adjourned oral hearing or the substantive oral hearing of the appeal, I am assuming that this piece of correspondence was provided by the appellant’s mother in support of the appeal to the appeal tribunal.

 

23.   The letter reads as follows:

 

‘To Whom It May Concern

 

This is one of the worst cases of bowel dysfunction that I have dealt with in a young patient.

 

His lower bowel is so voluminous that huge motions gather, before evacuation.  This causes

 

·        Pain

·        Difficulty walking

·        Exhaustion

·        Mood change

 

Moving his bowels every ten days is a major issue.

 

For 2 days prior to that he is very unwell, his gait is altered, his mood is poor.  He needs encouragement.

 

He needs advice and support; he needs to be supervised to ensure he takes his medication.  In other words there is a care component, please consider this.’

 

How did the appeal tribunal deal with this evidence?

 

24.   In the SORs for the appeal tribunal’s decision, the following is recorded, at paragraph 12:

 

‘His mother provided a letter from his doctor dated 22 February 2008.  It states he is habitually constipated and attends the consultant at the hospital because of this.  The doctor said that there are long-term management issues involved.  A further letter dated 25 July 2008 was provided.  It refers to him passing huge motions which cause pain passing.  His doctor refers to him having difficulty walking and suffering from exhaustion and mood change.  The doctor said that moving his bowels every ten days was a major issue and two days prior to this he would be very unwell.  The doctor refers to supervisory needs regarding the taking of his medication.’

 

25.   It is clear that the contents of paragraph 12 involve a repetition of what was stated in the two pieces of correspondence which were before the appeal tribunal and does not involve an analysis of that evidence in the context of the issues which were in dispute before the appeal tribunal.  It confirms, in addition, that the letter from Dr O’C….., dated 25 July 2008, was provided to the appeal tribunal by the appellant’s mother.

 

26.   At paragraphs 16 to 18 of the SORs for the appeal tribunal’s decision, the following is recorded:

 

‘16.      Having regard to all the evidence we accept that the Appellant has genuine problems with constipation.  The problem appears to be chronic.  Understandably this causes distress and embarrassment to him at times.  However, whilst he has this genuine problem we do not find his situation meets the requirement for the award of this benefit.

 

17.       We fail to see how his constipation can render him virtually unable to walk most of the time.  No doubt at times he feels unwell but we do not feel it should significantly hamper his mobility.  There is no reason why he cannot go out alone.  He has no diagnosed mental health problems.

 

18.       It is also our conclusion that he can adequately self-care.  From his mother’s account, whilst appreciating the nature of his problem, in practice he requires very little help from third parties.  His mother has referred to checking he takes his medication.  However, his medication is not particularly difficult to take and we believe that he can be responsible to do this himself.  In summary therefore whilst we acknowledge the Appellant has a genuine condition we find it does not satisfy the requirements for entitlement to any of this benefit.’

 

27.   There is no reference in the evidential assessment to the additional medical evidence in the form of the letters dated 22 February 2008 and 25 July 2008.  As was noted above, in that correspondence, there is, arguably, evidence to support the claims that the appellant has difficulty with walking, requires advice and support and supervision to take his medication.

 

28.   In C8/08-09(IB), and following an analysis of the decisions in C11/08-09(IB), and R 2/01(IB)T, I stated, at paragraph 60:

 

         ‘… there is a clear duty on appeal tribunals to undertake a rigorous assessment of all of the evidence before it and to give an explicit explanation as to why it has preferred, accepted or rejected evidence which is before it and which is relevant to the issues arising in the appeal.’

 

29.   More recently, in SW v Secretary of State for Work and Pensions [2010] UKUT 73 (AAC), Upper Tribunal Judge Wikeley stated, at paragraphs 19 to 20:

 

‘19.    In Hampshire County Council v JP [2009] UKUT 239 (AAC) a three-judge panel of the Upper Tribunal explained the requirement to give reasons as follows:

 

“… where there is a crucial disagreement between experts and ‘the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other’ (Flannery v Halifax Estate Agencies Limited [2001] 1 WLR 377 (CA)’ (at paragraph 39)

 

20.     Similarly, a different three-judge panel of the Upper Tribunal in BB v South London and Maudsley NHS trust [2009] UKUT 157 (AAC) concluded that a First-tier Tribunal in the mental health jurisdiction had failed to give adequate reasons for its decision.  In that case the appellant had produced a supportive expert report by a Dr Cripps.  The Upper Tribunal observed that:

 

“In Dr Cripps’s report the tribunal had a coherent reasoned opinion expressed by a suitably qualified expert.  We consider that in the circumstances of the present case the tribunal needed to state with clarity how and why it disagreed with the reasoning of Dr Cripps” (at paragraph 18).’

 

30.   Despite the detail of the SORs for the appeal tribunal’s decision there is no reference to the relevant medical evidence from the GP, and his comments in support of the claims made by the appellant.  Accordingly I cannot be satisfied from what has been set out in the SOR that the appeal tribunal has assessed that evidence in line with all of the other evidence which was before it.  It may be the case that the appeal tribunal had formed the view that the evidence from the GP added little support to the appellant’s mother contentions relating to the potential entitlement of her son to DLA.

 

31.   Nonetheless, I am satisfied that the letter dated 25 July 2008 from Dr O’C….. is quite specific and it seems to me that the appeal tribunal was under a duty to consider the relevant evidence.  Having failed to indicate that it did consider that evidence, and explain, in its SORs, that it has so considered it, I find, albeit with some reluctance, that the decision of the appeal tribunal is in error of law.

 

32.   As was noted above, DMS, in the written observations on the application for leave to appeal, submitted that the decision of the appeal tribunal was in error of law in that it failed to consider, and outline in its SORs that it had so considered, the relevant evidence.  I am required, however, to consider the further submission made by DMS that:

 

‘Whilst the tribunal has erred in law it is my submission that the error does not vitiate the decision.  In relation to the question of (the claimant) requiring supervision to take his medication, (the claimant’s mother) has stated in page18 of the self assessment form that (the claimant) needs help once per day for approximately 5-15 minutes.  Even if this was accepted I would submit that it would not be sufficient to satisfy the conditions for an award of either the lowest or middle rate care components of DLA in that it would not amount to frequent attention throughout the day or attention from another person for a significant portion of the day.’

 

33.   That submission would be well made if the correspondence from Dr O’C….. was limited to providing apparent support for the assertion that the appellant required supervision with his medication, and that no further care, attention or supervision needs arose, or that the disability placed no restriction on his mobility.  In fact, and as was noted above, in the correspondence from Dr O’C……, there is, arguably, evidence to support the claims that the appellant has difficulty with walking, requires advice and support and supervision to take his medication.

 

34.   As was noted above, the appeal tribunal, at paragraph 17 of its SORs concluded that it did not feel that the appellant’s disability ‘… should significantly hamper his mobility.’  The appeal tribunal arrived at that conclusion without indicating what it made, by way of evidential assessment, of the evidence from Dr O’C…… that his problems with significant bowel dysfunction caused difficulty with walking.  Similar principles apply to Dr O’C……’s evidence with respect to the requirement for advice and support.

 

35.   Accordingly I cannot, with respect, accept the submission from DMS that the identified error of law does not vitiate the decision.

 

Disposal

 

36.   The decision of the appeal tribunal dated 1 October 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.

 

37.   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 12 February 2008, which decided that the appellant was not entitled to DLA from and including 27 April 2008 on a renewal claim.  The decision dated 12 February 2008 was reconsidered but not changed on 6 March 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)         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

 

(iv)          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

 

 

 

16 April 2010