BW v Department for Social Development (DLA) [2010] NICom 22

 

Decision No:  C38/08-09(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 17 July 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 appeal can properly be determined without a hearing.

 

2.     The decision of the appeal tribunal dated 17 July 2008 is in error of law. The error of law identified will be explained in more detail below.

 

3.     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.

 

4.     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.

 

5.     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.

 

6.     It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of his 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

 

7.     On 4 December 2007 a decision-maker of the Department decided that the applicant was not entitled to DLA from and including 21 September 2007, on a renewal claim. A telephone call requesting a reconsideration of the decision dated 4 December 2007 was received on 7 December 2007. The appeal was received in the Department on 19 December 2007. On 8 January 2008, the decision dated 4 December 2007 was reconsidered but was not changed. On 20 May 2008 detailed materials were received in The Appeals Service (TAS) from the appellant.

 

8.     The appeal tribunal hearing took place on 17 July 2008. The appellant was present and was represented. There was no presenting officer (PO) present. The appeal tribunal disallowed the appeal, and confirmed the decision dated 4 December 2007.  On 11 September 2008 an application for leave to appeal to the Social Security Commissioner was received in TAS. On 18 September 2008, the application for leave to appeal was refused by the legally qualified panel member.

 

         Proceedings before the Social Security Commissioner

 

9.     On 24 October 2008, 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.

 

10.   On 18 November 2008 observations were sought from Decision Making Services (DMS) and these were received on 8 December 2008. DMS opposed the application.

 

11.   Observations were shared with the appellant on 13 January 2009.

 

12.   On 20 April 2009, I granted leave to appeal. In so doing, I stated, as the reason for granting leave to appeal that:

 

‘Leave to appeal is granted as an arguable issue arises as to whether the statement of reasons for the appeal tribunal’s decision is adequate to explain why the appeal tribunal accepted and preferred the evidence which it did, and rejected other evidence available to it.’

 

13.   On 7 May 2009 further correspondence in connection with the appeal was received from the appellant’s Member of Parliament.

 

14.   On 18 August 2009, and following a request to that effect, copies of relevant medical reports were received from the appellant. These medical reports were shared with the Department on 3 September 2009.

 

         Errors of law

 

15.   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.

 

16.   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

 

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

 

(i)     the appeal tribunal had not taken into account relevant medical evidence, including a report from a senior physiotherapist;

 

(ii)   the appeal tribunal’s conclusions with respect to ‘falling’ are inconsistent with the medical evidence which was before the appeal tribunal;

 

(iii) he is taking more medication which has a significant impact on how he is on a day to day basis; and

 

(iv)  the medical evidence indicates that his medical condition is progressive and will continue to cause difficulties throughout his life.

 

18.   As was noted above, DMS oppose the appeal on all of the grounds cited by the appellant.

 

         Analysis

 

19.   The statement of reasons (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?

 

20.   In his renewal claim for to DLA, the appellant submitted, at page 14, that ‘due to my medication I am light-headed/dizzy. At times my feet may be very uncomfortable resulting in great pain when walking which in turn causes me to stumble.’ At page 15 of the renewal claim form he added ‘as unfamiliar places may be uneven I require someone with me to ensure I do not lose my footing.’ Elsewhere throughout the form, there are further references to stumbling, submitted, for the most part, to be on the basis of dizziness as a side-effect of medication.

 

21.   The appeal tribunal had before it detailed medical evidence, in the form of medical reports which the appeal tribunal had access to as part of the appellant’s general practitioner (GP) records or submitted in support of his renewal claim and appeal by the appellant.

 

22.   One of the reports which was before the appeal tribunal was a letter submitted in support of the renewal claim to DLA, from a senior physiotherapist at Craigavon Area Hospital, dated 26 January 2007. In that letter, the Physiotherapist states:

 

‘… Due to his decreased range of movement and muscle strength at his toes following surgery this has led to poor balance and consequently problems when attempting to mobilise … At present (the claimant’s) balance remains poor and he needs to mobilise with the aid of two walking sticks, and will continue to need these unless his balance improves. Due to his poor balance he is at a high risk of falling in any environment where he could be pushed against causing unsteadiness.’ 

 

23.   Also before the appeal tribunal was a letter from the appellant’s GP, dated 8 May 2008. In this correspondence the General Practitioner states:

 

‘… He has significant problems with balance and has frequent falls – see enclosed copied [sic] of referral letters to podiatry and rheumatology plus a report from orthopaedics documenting his poor balance and abnormal gait.’

 

24.   In a further letter dated 21 March 2007, the GP states:

 

‘… Unfortunately he has been having marked problems with poor balance since his operation.’

 

25.   How did the appeal tribunal deal with the issue of falling? In the statement of reasons for the appeal tribunal’s decision, it is recorded that:

 

‘Although reference was made today to falling 4/5 times per week this was not borne out by the medical records. Appellant confirmed that when he fell he did not run to his General Practitioner so when the General Practitioner referred to frequent falls this was clearly what he was being told by (the claimant). With the usual care we believe that Appellant could avoid falls and a walking stick/crutches would also assist in preventing any risk of falling and would be reasonable. …

 

… General Practitioner’s factual report of 02.08.2007 does not make any specific clinical findings as to, for example, gait, balance, at Box 6 but simply refers us to ‘Orthopaedic report 19.04.2007. This is in fact a Senior Physiotherapist’s report from Musgrave Park Hospital and we paid close attention to the specific findings and comments therein as well as to all the evidence at our disposal …

 

…Regarding the low rate Appellant made reference to fear of falling. Claim form referred to light head/dizziness. There was nothing in the medical records to indicate any significant problem regarding light heads or dizziness. Oral evidence today referred to drowsiness after medication but only lasted allegedly for ½ - ¾ hour and did not then prevent driving. With the usual care and a walking stick we did not believe that falling was a significant problem …’

 

26.   There is no reference in the evidential assessment with respect to the claimed problems with falling to the letter submitted in support of the renewal claim to DLA, from a senior physiotherapist at Craigavon Area Hospital, dated 26 January 2007. As was noted above, in that letter, the physiotherapist alluded to the appellant being at a high risk of falling and outlining the reasons for that conclusion. Further, there is no reference to the additional medical evidence from the appellant’s GP, in the form of the letters dated 21 March 2007 and 8 May 2008, in which the problems with falling are specifically addressed.

 

27.   The appeal tribunal has concentrated on the claims made by the appellant, in his renewal claim form, that the problems with falling are caused by dizziness, caused by the side-effects of his medication. The further medical evidence from the GP and the senior physiotherapist, suggest, however, that the appellant may have problems with falling associated and caused by his physical problems with his feet.

 

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 [2000] 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 statement of reasons for the appeal tribunal’s decision there is no reference to the relevant evidence from the senior physiotherapist and the GP. Accordingly I cannot be satisfied from what has been set out in the statement of reasons 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 senior physiotherapist and the GP added little support to the appellant’s contentions relating to his potential entitlement to DLA.

 

31.   Nonetheless, I am satisfied that the context of the appellant’s difficulties with falling, through the physical problems with his feet, could and should have been explored in more detail by the appeal tribunal. The letter dated 26 January 2007 from the senior physiotherapist is quite specific and it seems to me that the issue of falling was worthy of further exploration in terms for reasons for referral, intervention and action by the physiotherapy team, outcome of any intervention, details of ongoing interaction and future prognosis.

 

32.   Having found that the appeal tribunal was under a duty to consider the relevant evidence, and having failed to indicate that it did consider that evidence and explain, in its statement of reasons that it has so considered it, I find, albeit with some reluctance, that the decision of the appeal tribunal is in error of law.

 

         Disposal

 

33.   The decision of the appeal tribunal dated 17 July 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.

 

34.   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 4 December 2007, which decided that the applicant was not entitled to DLA from and including 21 September 2007;

 

(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):  Kenneth Mullan

 

Commissioner

 

 

 

24 March 2010