Northern Ireland - Social Security and Child Support Commissioners' Decisions

LC-v-Department for Social Development(DLA) [2010] NICom 4

 

Decision No: C2/10-11(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 11 May 2009

 

 

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 11 May 2009 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 30 June 2008, a decision-maker of the Department decided that the appellant had an entitlement to the middle rate of the care component of DLA from and including 1 December 2008, on the foot of a renewal claim to that benefit.  An appeal against the decision dated 30 June 2008 was received in the Department on 11 July 2008.

 

9.     The appeal was first listed for hearing on 17 October 2008, as a ‘paper’ hearing.  The appeal was adjourned on that occasion.  The terms of the adjournment were stated to be that ‘The Tribunal considered that it would be appropriate to list for an oral hearing’.  The appeal tribunal also issued the following direction:

 

                  ‘The appeal is to be listed for an oral hearing.  The Appellant is to be advised that the ongoing award may be at issue at the next hearing.’

 

10.   The appeal was re-listed for an oral hearing on 26 January 2009.  The appellant was not present but her father was.  Once again the appeal was adjourned.  The terms of the adjournment were stated to be that ‘Appellant’s father wished to have opportunity to discuss the appeal with an advice organisation’.  The appeal tribunal also issued the following direction:

 

                  ‘Appeal adjourned.  The appeal is to be relisted when the Appellant’s father has been to an advice organisation.

 

                  The Appellant is to be aware that the existing award will be at issue at the next hearing.’

 

11.   The final oral hearing of the appeal took place on 11 May 2009.  The appellant was not in attendance.  The appellant had submitted a letter to The Appeals Service (TAS) in the following terms:

 

                  ‘I am sorry I cannot attend the meeting, as I really am not in the right frame of mind, I just wouldn’t be able to cope with it.  I didn’t disagree with my care, it was when I went out I needed to have a person with me, as I get very nervous and take panic attacks.  I was talking to someone in the SSA and I was telling them my DLA was going down and she said if my circumstances hadn’t changed then I should appeal it.  That’s why I appealed it.  It [sic] mobility I was appealing not care.’

 

12.   The appeal tribunal disallowed the appeal and substituted its own decision to the effect that the appellant was not entitled to either component of DLA.  In the decision notices, the decision is recorded that the appellant is not entitled to either component from and including ‘1/2/08’.  The Department had, of course, made an award of an entitlement to the middle rate of the care component of DLA from and including 1 December 2008.  It may be that the recording of ‘1/2/08’ is a slip of the pen for ‘1/12/08’.

 

13.   On 22 July 2009, an application for leave to appeal to the Social Security Commissioner was received in TAS.  On 28 July 2009, the application for leave to appeal was refused by the legally qualified panel member (LQPM).

 

         Proceedings before the Social Security Commissioner

 

14.   On 4 August 2009 a further application for leave to appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners.  In the application, the appellant stated that:

 

                  ‘I disagree with this decision as I am very unwell with depression, anxity [sic] and panic attacks how I don’t qualify is beyond me, you need to contact my doctor’.

 

15.   On 11 September 2009 observations were sought from Decision Making Services (DMS) and these were received on 8 October 2009.  In these written observations, DMS submitted the following:

 

                   ‘Grounds of appeal

 

                  In her applications to the legally qualified panel member and Social Security Commissioner (the claimant) states that he [sic] suffers from depression, anxiety and panic attacks and as a result:

 

·            She could not cook meals for herself.

 

·            She does not go out alone.

 

                  My Comments

 

                  Point 1

 

                  Whilst it is accepted that (the claimant) does suffer from the above conditions the issue for the tribunal to decide was whether or not she had care and mobility needs arising from these conditions that would warrant an award of DLA.

 

                  In relation to (the claimant’s) ability to cook a main meal the Tribunal referred to evidence from (the claimant’s) father which was given at a previous adjourned hearing (26 January 2009).  At that hearing he stated that she could cook a main meal if she was in form.  Whilst (the claimant’s) father indicated there were times that she could make a main meal there was an onus upon the tribunal to consider when and for how long (the claimant) would be “up for" preparing a cooked main meal.  In the GB Commissioner’s decision CSDLA 725/2004, the Commissioner stated at paragraph 19;

 

                              “I have always accepted that it is not a simple issue of whether  a claimant has the physical ability to perform all the activities in connection with planning, preparing and cooking a “…labour intensive, main reasonable daily meal for one person …” (R(DLA) 2/95) but rather it is relevant whether, through disablement, the claimant lacks the motivation to do so on a sufficiently regular basis.  Mr Bartos too agreed, and I consider that he was right to do so, that if a claimant can establish that mental disablement induces a lack of motivation which in turn causes a lack of capacity to prepare and cook a reasonable variety of main meals for him or herself (and not simply an unwillingness to do so which many of us may demonstrate in our more lazy moments) then in such a case a claimant can potentially qualify under the cooked main meal test…”

 

                  There is nothing in the reasons for decision to indicate that the tribunal ever considered (the claimant’s) motivation or need for encouragement to prepare a cooked main meal or how often she would in fact be able to prepare a main meal.  In view of this it is my submission that the tribunal has failed to adequately investigate this matter further and in doing so has erred in law.

 

                  Point 2

 

                  At paragraphs 3 and 4 of the reasons for decision related to the mobility component the tribunal stated:

 

                              “In particular the Tribunal found that (the claimant) lives with her children is on appropriate medication, is able to drive and does drive with her children.  We found that her insight and awareness of danger is normal as stated by her General Practitioner.

 

                              We found that while (the claimant) prefers to be accompanied we did not accept that she would require either guidance or supervision on unfamiliar routes most of the time.”

 

                  As can be seen from the above extract the tribunal did not accept that (the claimant) would require guidance and/or supervision out of doors as it noted she was capable of driving.  In reaching that conclusion the tribunal were clearly equating the ability to drive with evidence of clear-headedness and competency which is consistent with the approach adopted by the Commissioner Brown in paragraph 9 of reported decision R1/07(DLA) where she stated:

 

                              “9. I consider that Mr McVeigh is incorrect in his submission.  I consider the Department’s submission to be correct in that the tribunal concluded that the ability to plan a journey, drive a car and therefore react to road conditions was indicative of clear headedness and competency.  Such clear headedness and competency is a matter which is obviously relevant to the ability to walk on unfamiliar routes without guidance or supervision.  I consider the Department to be correct that it was the possession of those abilities upon which the tribunal relied, not the claimant’s ability to use familiar routes.  When driving no matter whether a route is familiar or not there can be varying traffic conditions, emergency situations, pedestrians etc.  The ability to drive even on familiar routes is evidence of clear headedness and competency.  It is quite obvious from the tribunal’s findings, where it specifically referred to the ability to walk on unfamiliar routes, that it has not misinterpreted the test for the lower rate of the mobility component.  It has merely used the evidence of driving as showing clear headedness and competency indicative of ability to walk unsupervised and unaccompanied.”

 

                  The tribunal also found that (the claimant) prefers to be accompanied.  A need for accompaniment would not lead to a need for guidance and/or supervision out of doors.  In view of the above I submit that the tribunal were entitled to decide that guidance and/or supervision out of doors was not required and it has not erred in law as contended.

 

                   Further errors

 

                  Did the tribunal give (the claimant) sufficient warning that it would remove her award or give her the opportunity to withdraw her appeal?

 

                  In this case (the claimant) had been awarded the middle rate care component of DLA however the tribunal removed this award.  In unreported decision C15/08-09(DLA) Commissioner Mullan reviewed various authorities on the powers of tribunals and agreed that a tribunal is entitled to give a less favourable decision than that appealed.  At paragraph 77 he gave the following guidance as to what is required of tribunals who are considering reducing/removing an existing award of benefit.

 

                              “77. Accordingly, in my view, it is safest and best practice for an appeal tribunal in each case where the decision under appeal incorporates an existing award:

 

                              (i)     N/A;

 

                              (ii)    to outline to the appellant the powers available to the appeal tribunal which are:

 

·        to make a decision which is more favourable to the appellant;

 

·        to confirm the decision of the Department with respect to the existing award; and

 

·        to make a decision which is less favourable to the appellant.

 

                              (iii)   to outline to the appellant, the options available to him, which are:

 

·        to continue with the appeal tribunal hearing;

 

·        to withdraw the appeal at any stage prior to its determination;

 

·        to seek a brief adjournment to consider the implications of what has been described, or a longer adjournment to seek further legal advice in light of that description.

 

                              (iv)   N/A

 

                              (v)    N/A

 

                              (vi)   to ensure that where a statement of reasons for the appeal tribunal’s decision is requested and given that the reasons for the exercise of the discretion to make a decision which is less favourable are set out;

 

                              (vii)  to ensure that in a case determined on the papers alone and, where the appeal tribunal is considering exercising its judicial discretion to make a decision which is less favourable to the appellant, that it is satisfied that an appellant has had sufficient notice of the appeal tribunal’s intention to consider making a decision which is less favourable, which will be likely to involve adjourning the appeal, and providing an appropriate description of the appeal tribunal’s powers and the appellant’s options in light of those powers.”

 

                  Whilst the tribunal had informed (the claimant) that her current award could be at issue in my opinion it did not explain exactly what this meant.  I note that the LQPM had made reference to the ongoing award to (the claimant’s) father, Mr Green, at the adjourned hearing of 26 January 2009 (paragraph 1 of the record of proceedings).  I also note that Mr Green completed by stating that he wished to take advice regarding the ongoing award.  However there is nothing in the record of proceedings which would indicate to anyone if the tribunal actually detailed its powers as set out above by Commissioner Mullen [sic].  Nor is there anything in the record of proceedings to indicate if (the claimant) was ever informed that she had the option of withdrawing her appeal at any time prior to the tribunal reaching its determination.  For that reason I submit that the tribunal has erred in law.

 

                  Did the tribunal adequately explain its decision?

 

                  As stated above (the claimant) had been awarded the middle rate care component of DLA and this was on the basis of her self assessment form and a factual report completed by her GP.  I note that in this report that Dr McMullen had stated that (the claimant) had low mood and self esteem; she would self neglect if left alone and her mental state has deteriorated since the death of her husband.  This evidence would indicate that (the claimant) would require prompting/motivation in order to prevent self neglect.  However on perusal of the statement of reasons there is nothing to show why or how the tribunal concluded that that frequent attention throughout the day was not required in this case.  For that reason I submit that the reasons for decision are inadequate.’

 

         My decision

 

16.   I am in agreement with DMS that the decision of the appeal tribunal is in error of law on the basis that:

 

(i)             the appeal tribunal failed to explore whether the appellant had a reasonable requirement for encouragement or motivation to prepare a cooked main meal for herself, and the frequency with which such a reasonable requirement might arise;

 

(ii)           the reasons for the appeal tribunal’s decision are inadequate to explain why the appellant did not have a reasonable requirement for attention, by way of encouragement or motivation, in connection with her bodily functions;

 

(iii)         the procedures adopted by the appeal tribunal, in relation to its decision to remove the existing entitlement to the care component of DLA do not adhere to the principles set out in C15/08-09(DLA).

 

17.   In relation to the error noted at (ii) above, in C8/08-09(IB), I stated, at paragraphs 60-61:

 

         ‘60.   The reason for my rejection of the DMS submission is that 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.

 

         61.    In R2/04(DLA) a Tribunal of Commissioners, stated, at paragraph 22(5):

 

                    ‘ … there will be cases where the medical evidence before a particular tribunal will be unsatisfactory or deficient in an important respect.  It will often be open to the tribunal hearing such a case to reject the medical evidence for that reason.  Indeed, it will sometimes be its duty to do so.  However, and in either case, the tribunal cannot simply ignore medical evidence which is not obviously irrelevant.  It must acknowledge its existence and explain its reasons for rejecting it, even if, as will often be appropriate, such reasons are fairly short.  We repeat, the decision whether a person suffers from a particular medical condition is a matter for the tribunal.  That body must have regard to the whole of the evidence, including the medical evidence.  Where it rejects medical evidence it must, unless the reasons are otherwise apparent, explain why it does so.  Anything less is likely to result in an appeal being brought on the grounds that the tribunal has not given adequate reasons or that its decision is against the weight of the evidence.’’

 

18.   In the instant case, the appeal tribunal, in the record of proceedings, noted that it had before it the ‘Scheduled documents’ which would include the appeal submission.  Within the appeal submission, at Tab No. 2 is a copy of a factual report, completed by the appellant’s general practitioner (GP) on 26 June 2008.  At page 6 of the factual report, the GP has noted that:

 

                   ‘Would self neglect if left alone.

 

                   History of O/D x 4 – last one 2005.

 

                   Mental state has deteriorated since death of husband.’

 

19.   In the statement of reasons for the appeal tribunal’s decision there is a reference to the factual report from the appellant’s GP, but in connection to other comments made about the appellant’s ability to self-care, her insight and awareness of danger and ability to get around.  That latter evidence was utilised by the appeal tribunal as the basis for determining that the appellant should not have an entitlement to the middle, or any rate of the care component of DLA.  As was observed by DMS, the award of an entitlement to the middle rate of the care component was on the basis of the evidence contained in the appellant’s self-assessment form, and in the GP factual report.  In these circumstances, the appeal tribunal was under a duty to indicate what was its assessment of the further evidence from the GP, and why that evidence was not supportive of any entitlement to the care component of DLA.

 

20.   In relation to the error noted at (iii) above, I accept that in the directions made following the adjourned hearing on 17 October 2008, reference is made to the appeal tribunal considering exercising its discretion with respect to the existing award of DLA.  Further, the record of proceedings for the adjourned oral hearing on 26 January 2009, at which the appellant’s father attended, refer to the ‘ongoing award’, and the appeal was adjourned, at the request of the appellant’s father, in order for him ‘to take advice about ongoing award’.  The directions issued, following the adjournment of the appeal on this occasion, also make reference to the ‘existing award’.

 

21.   I am aware that the Appeals Service issues to all appellants, as part of the paperwork associated with the appeal, an information leaflet which sets out, amongst other things, the powers of the appeal tribunal.

 

22.   Accordingly, it could not be said that the appeal tribunal did not draw the attention of the appellant, and her father, that it was considering exercising its judicial discretion with respect to the existing entitlement to DLA.  In my view, however, it will be safest and best practice for appeal tribunals to adhere to the principles set out in paragraph 77 of C15/08-09(DLA).  It should be noted that at sub-paragraph (vii) of paragraph 77, I noted that for appeal tribunals it is safest and best practice:

 

                   ‘(vii)     to ensure that in a case determined on the papers alone and, where the appeal tribunal is considering exercising its judicial discretion to make a decision which is less favourable to the appellant, that it is satisfied that an appellant has had sufficient notice of the appeal tribunal’s intention to consider making a decision which is less favourable, which will be likely to involve adjourning the appeal, and providing an appropriate description of the appeal tribunal’s powers and the appellant’s options in light of those powers.’

 

23.   I am of the view that the principles set out in this sub-paragraph are equally applicable to oral hearings where the appellant is not in attendance.  It is important to note that the appellant did not attend any of the three hearings in connection with this appeal, by her own choice.  In these circumstances it was important for the appeal tribunal to ensure, through its issued terms of adjournment and further directions that it provided an appropriate description of the appeal tribunal’s powers and the appellant’s options in light of those powers.

 

24.   In my view, where an appeal tribunal is considering making a decision which has the potential of removing an existing award of entitlement to a social security benefit, whether through the exercise of its own judicial discretion to do so, or because that issue was specifically raised by the appeal, then the appeal tribunal’s powers with respect to decision-making, and the appellant’s options in light of those powers should be clearly and unequivocally explained to the appellant, in language and terms which are readily intelligible to the appellant, in line with the guidance provided in paragraph 77 of C15/08-09(DLA).

 

25.   The issued terms of adjournment and further directions did not provide an appropriate description of the appeal tribunal’s powers and the appellant’s options in light of those powers.  Additionally, sufficient reliance could not be placed on the content of the Appeals Service information leaflet, or the expectation that this was read and/or understood by the appellant.  Accordingly, the principles set out in paragraph 77 of C15/08-09(DLA) have not been adhered to.  The third and final hearing of the appeal proceeded without the appellant being present.  In my view, the appellant had not been fully and adequately informed of the appeal tribunal’s powers and her own options in light of those powers.  Accordingly, I find that the decision of the appeal tribunal is in error of law.

 

         Disposal

 

26.   The decision of the appeal tribunal dated 11 May 2009 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.

 

27.   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.

 

28.   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 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.

 

29.   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 30 June 2008, in which a decision-maker of the Department decided that the appellant had an entitlement to the middle rate of the care component of DLA from and including 1 December 2008, on the foot of a renewal claim to that benefit;

 

(ii)           the appellant will wish to consider what was said at paragraph 77 of C15/08-09(DLA) concerning the powers available to the appeal tribunal and the appellant’s options in relation to those powers;

 

(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

 

 

 

21 January 2010