DSS-v-Department for Social Development(DLA) [2010] NICom 3

 

Decision No:  C3/10-11(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 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 11 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 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

 

8.     On 10 July 2007, a decision-maker of the Department decided that there were grounds to supersede an earlier decision of the Department, and awarded entitlement to the lower rate of the mobility component of DLA from 10 July 2007 and the middle rate of the care component of DLA from and including 20 March 2007.

 

9.     An appeal against the decision dated 10 July 2007 was received in the Department on 13 August 2007.

 

10.   A first oral hearing of the appeal took place on 4 December 2007.  The appellant was not in attendance.  The appeal was adjourned and the terms of the adjournment read as follows:

 

‘1.        To enable the Appellant to consent to the release of his General Practitioner records.

 

2.         To enable the Appellant to attend.’

 

         The appeal tribunal issued a direction in the following terms:

 

‘Please relist immediately.

 

The Appeals Service shall send the Appellant the relevant consent form to enable the General Practitioner records to be released to The Appeals Service.

 

If the General Practitioner records are not received within 3 months; please relist for hearing.’

 

11.   A further appeal tribunal hearing took place on 9 July 2008.  There was an oral hearing of the appeal at which the applicant was not present.  There was a presenting officer (PO) of the Department present.  Once again the appeal was adjourned, and the following terms of the adjournment were noted:

 

‘Appellant is not in attendance.

 

Presenting officer is in attendance and states that the Department are calling into question the existing award.

 

The interests of justice require that the appellant is given an opportunity to attend the next hearing to give oral evidence.

 

His non attendance now at 2 panel hearings is noted.’

 

         The appeal tribunal issued a direction in the following terms:

 

‘Re-list

 

Appellant should attend the next hearing.’

 

12.   A further appeal tribunal hearing took place on 11 August 2008.  There was an oral hearing of the appeal at which the applicant was not present.  There was a PO of the Department present.

 

13.   The appeal tribunal disallowed the appeal, did not confirm the decision dated 10 July 2007, and substituted its own decision that the applicant was not entitled to the mobility component or the care component of DLA from and including 10 July 2007.

 

14.   On 7 November 2008 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS).

 

15.   On 15 November 2008, the application for leave to appeal was refused by the legally qualified panel member.

 

         Proceedings before the Social Security Commissioner

 

16.   On 16 December 2008, a further application for leave to appeal to the Social Security Commissioner was received in the Office of the Social Security Commissioners.

 

17.   On 21 January 2009 observations were sought from Decision Making Services (DMS) and these were received on 18 February 2009.  DMS opposed the application on the grounds cited by the appellant.

 

18.   The observations from DMS were shared with the appellant on 26 February 2009 and, on 24 March 2009, a further submission in reply was received from him.

 

19.   The further submission in reply was shared with DMS on 15 April 2009 and, on 30 April 2009, a further submission was received from DMS.

 

         Errors of law

 

20.   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.

 

21.   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

 

22.   In the 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 in that:

 

         (i)      the appeal tribunal, on the basis of the principles set out in CDLA/884/2008 should have refrained from making an award which was less favourable than the decision under appeal;

 

         (ii)     he was not given sufficient warning that his existing award of DLA was at risk; and

 

         (iii)    the reasons for the appeal tribunal’s decision were inadequate.

 

23.   In their written observations on the application for leave to appeal, DMS submitted that:

 

         (i)      the decision of the Commissioner in CDLA/884/2008 could be distinguished in that the Department had brought into question the correctness of the award of DLA which was the subject of the appeal;

 

         (ii)     the calling into question of the award was noted in the terms of the adjourned appeal tribunal hearing, held on 10 July 2007, which were forwarded to the appellant, and advised him that he should attend the next hearing of the appeal;

 

         (iii)    as the issue of the validity of the existing award had been raised by the Department, there was no question of the appeal tribunal exercising its own discretion to consider that award;

 

         (iv)    the appeal tribunal was correct to proceed in the absence of the appellant;

 

         (v)     the appeal tribunal’s assessment of all of the evidence which was before it was appropriate.

 

24.   DMS submitted that although the appellant had not identified an error in the appeal tribunal’s decision, the appeal tribunal had in fact erred in law in how it dealt with the issue of supersession in respect of the care component of DLA.  DMS submitted further, however, that the error was not sufficient to vitiate the decision. DMS stated:

 

‘In paragraph 7 of unreported decision C14/04-05(DLA) Commissioner Brown stated:

 

“…DLA is a composite benefit and …once grounds for supersession has been established both components can be looked at.  R2/95(DLA) and CIB/4751/2202 so indicate.”

 

         Decision CIB/4751/2002 referred to above has since been reported as R(IB) 2/04 and at paragraph 10 of that decision the Tribunal of GB Commissioners held that there can be no supersession unless one of the grounds for supersession specified in (the equivalent to) regulation 6 of the Social Security and Child Support (Decision and Appeals) Regulations (Northern Ireland) 1999 exist, and the ground which was found to exist must have formed the basis of the supersession in the sense that the original decision could only be altered in a way which followed from that ground.

 

         In this case the decision maker had awarded (the claimant) the higher rate mobility component of DLA only.  Following a periodic review another decision maker superseded that decision on the basis of a relevant change of circumstances in that (the claimant) now had care needs which warranted an award of the middle rate care component from 20 March 2007.  The tribunal decided that (the claimant) was not entitled to the care component and in its decision notice stated:

 

“… Decision dated 26.01.02 superseded.  Relevant change of circumstances.  Appellant is not entitled to care component from and including 10.07.07.  Accordingly current award terminated.”

 

         In this case it would appear from the decision notice that the tribunal was under the impression that (the claimant) had been in receipt of the care component from the outset and has therefore incorrectly decided that the decision should be superseded on the basis of a relevant change of circumstances.  However as there was never an award of the care component in place and the tribunal found that he was not entitled to the care component it should have held that there were no grounds to supersede the original decision as far as the care component was concerned.

 

         However as grounds existed to supersede the original award on the basis that (the claimant) no longer satisfied the entitlement conditions for an award of the mobility component it correctly held that there was a relevant change of circumstances since the original decision was made and this properly formed the grounds to supersede the decision of 26 January 2002.’

 

         The removal of the existing award

 

25.   Part of the reason for the delay in producing the decision in this appeal was because that in another appeal I was addressing issues which might have relevance to this particular appeal.

 

26.   In C15/08-09(DLA), I gave detailed guidance to appeal tribunals on the approach to be taken in cases where the decision under appeal incorporates an existing award.  At paragraphs 61 to 66, and following a review of the existing authorities, I stated:

 

‘61.   The principles which emerge from these cases can be summarised as follows:

 

            (i)   an appeal tribunal is entitled to make a decision less favourable to the claimant than the decision under appeal;

 

            (ii)  an appeal tribunal is entitled to supersede (or revise) the original decision on a ground which leads to a decision less favourable to the claimant than the decision under appeal;

 

            (iii) a less favourable award may also be made by an appeal tribunal which is considering an appeal against a decision of the Department on a renewal claim;

 

            (iv) the discretion of the appeal tribunal to make a less favourable decision is one to be exercised judicially, taking into account all relevant circumstances;

 

            (v)  if a statement of reasons for the appeal tribunal’s decision is given, then the reasons for the exercise of the discretion should be set out;

 

            (vi) the appeal tribunal must be satisfied that there has been compliance with the requirements of Article 6 of the European Convention on Human Rights and of natural justice;

 

            (vii)            compliance with the requirements of Article 6 includes the requirement that the appellant has had sufficient notice of the appeal tribunal’s intention to consider making a decision which is less favourable, in order to enable the appellant properly to prepare his case;

 

            (viii)           the appellant is entitled to withdraw his appeal any time before the appeal tribunal’s decision and this power may also be material to what Article 6 and the rules of natural justice demand;

 

            (ix) appeal tribunals should refrain from making decisions less favourable to appellants than the decisions being challenged, except in the most obvious cases, or after an appropriate adjournment;

 

            (x)  the LQPM of the appeal tribunal is at liberty to draw any doubts about the validity of the decision to the Department’s attention in the decision notice and can arrange for the parties to be sent a copy of the record of proceedings without them having to request it.  That action would enable the Department to consider a supersession or revision (but see below).

 

62.       The last principle was derived from the decision of Commissioner Rowland in CDLA/884/2008.  With respect to the Commissioner, I do not agree with his conclusion.  I would state the relevant principle to be:

 

(x)        Where the appeal tribunal has any doubt concerning the validity of the decision under appeal, where that decision incorporates an existing award, it is under a duty to undertake a full investigation of the legitimacy of the existing award and determine whether that award is correct.

 

63.       Why would I reformulate this principle?  Elsewhere in R(IB)2/04, the Tribunal of Commissioners in Great Britain had noted that

 

‘32.      Appeal tribunals are part of the adjudication system which is designed to ensure that claimants receive neither more nor less than the amount of social security benefit to which they are properly entitled (as opposed to the benefits to which the parties may be contending that they are entitled).  There is a legitimate public interest in ensuring such a result.  The jurisdiction has thus been described as inquisitorial or investigatory (see, in particular, R(IS) 5/93 and the authorities cited in paragraph 14 of that Commissioner’s decision).  Such a jurisdiction generally extended to include a duty on the tribunal to consider and determine questions which are necessary to ascertain the claimant’s proper entitlement, whether or not they have been raised by the parties to an appeal (R(SB) 2/83).  In our judgment, in the light of the above and the reasons given by Mr Commissioner Jacobs in paragraphs 17 and 18 of decision CH/1229/2002, “raised by the appeal” in section 12(8)(a) is to be interpreted as meaning actually raised at or before the hearing by at least one of the parties to the proceedings.  Section 12(8)(a) therefore does not limit the overall jurisdiction of an appeal tribunal, but grants it a discretion as to the extent to which it exercises this inquisitorial role.  That discretion must be exercised judicially.  An appeal tribunal is under a duty to consider whether or not to exercise the discretion where the circumstances could warrant it and would err in law by failing to do so or by failing to give adequate reasons for its conclusion.  However, it will not err in law if, following a proper judicial exercise of its discretion, it decides not to consider issues not raised by the parties to the appeal.’

 

64.       In my view, the duty on an appeal tribunal to ensure that a claimant ‘receives neither more nor less than the amount of social security benefit to which they are properly entitled’ includes a requirement to undertake a full investigation of the validity of an existing award and determine whether that award is correct.  It is not sufficient, in my view, to leave the issue in abeyance, and undertake an artificial remission to the Department.

 

65.       Where I do agree unequivocally with Commissioner Rowland is that the exercise of the judicial discretion to make a decision less favourable to the appellant and, with that discretion, the requirement to ensure that the appellant has had sufficient notice of the appeal tribunal’s intention to consider making a decision which is less favourable, in order to enable the appellant properly to prepare his case, leaves the appeal tribunal in a difficult position.  In this regard, I am of the view that it is regrettable that the requirement to ensure that the appellant has sufficient notice of the potential for the making of a less favourable award has been portrayed as the issue of a ‘warning’.  Warning is a negative noun.  It suggests risk and invokes a defensive response.

 

66.       Further, the practice appears to have emerged of the giving of a warning at the outset of an appeal tribunal hearing, when the appeal tribunal has formed the view that it may exercise its discretion to make an award which is less favourable to the appellant.  Where the appellant is unrepresented the information that an existing award, which he or she may have thought could not be challenged, may be diminished or removed by the appeal tribunal may come as a considerable surprise.  This is despite the fact that the appeal submissions prepared by the Department, and to which the appellant has had access in advance, as in the instant case, makes reference to that possibility.  As Commissioner Rowland has observed, there is a considerable danger, when using the language of warning, at the outset of an appeal tribunal hearing, of giving the impression of having prejudged the case.’

 

27.   At paragraph 77 I stated:

 

‘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)         to explain to the appellant that the appeal tribunal is under a duty to consider all of the evidence which is before it, and to ensure that the decision under appeal to it is correct;

 

(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)       to ensure that all explanations are provided in appropriate terms and language, and to be satisfied that the appellant understands the relevance and context of the powers of the appeal tribunal and the options available to him;

 

(v)        to ensure that a record of the explanations given by the appeal tribunal, in  respect of its powers and the appellant’s options is entered into the record of proceedings for the appeal tribunal’s hearing;

 

(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.’

 

28.   In the instant case the submission from DMS, on the question of the removal of the existing award, suggests that as the validity of the existing award had been raised by the Department, at the second oral hearing of the appeal it had, by then, become an issue raised by the appeal.  There was, thereafter, no question of the appeal tribunal exercising a discretion to make a decision less favourable than the decision under appeal.  As the issue had been raised by the appeal, the appeal tribunal was under a duty to consider it.

 

29.   I have no difficulty with that aspect of the submission from DMS, and agree that an appeal tribunal is under a duty to consider any issue which is specifically raised by the appeal, whether that issue is raised by the appellant or by the Department.  What concerns me is that there may be a further implication in the submission that once the issue of the validity of an existing award has been raised by the appeal the appellate authorities and the principles emerging from those authorities, relating to explanations concerning the powers of the appeal tribunal and the appellant’s options based on those powers and, which provide protection to the appellant, do not have the same applicability.  I do accept, however, that the submission from DMS goes on to propose that the appellant had, in fact, been alerted to the issue.

 

30.   Nonetheless, if that is implicit in the submission which is being made by DMS then, with respect, it is not correct.  I accept that the Tribunal of Commissioners in Great Britain, in R(IB) 2/04, addressed the issue of an appeal tribunal making of a decision which is less favourable to the appellant than the decision which is under appeal, after consideration of section 12(8)(a) of the Social Security Act 1998.  Section 12(8)(a), which has an equivalence in Northern Ireland in Article 13(8)(a) of the Social Security (Northern Ireland) Order 1998, provides that ‘… in deciding an appeal … an appeal tribunal … need not consider any issue that is not raised by the appeal.’  I also accept that there may be appeals where the Department, at the appeal tribunal stage, may call into question the validity of a decision made at Departmental level by one of its own officers and, thereby, make live an issue in the appeal which, until the appeal tribunal stage, was considered dormant by both the appellant and the Department.

 

31.   In my view, however, it cannot be the case that the protections afforded to appellants by the appellate authorities with respect to an appeal tribunal’s powers to make a decision which is less favourable to the appellant than the decision under appeal, and which involves the removal of an existing entitlement, are confined to those appeals where both the appellant and Department do not call the validity of an existing award into question and do not, thereby, raise it as an issue in the appeal.

 

32.   It seems to me that in the circumstances such as those arising in the present appeal where the Department, at the appeal tribunal stage, has called into question the validity of a decision made by one of its own officers, and submits that the appeal tribunal should consider making a decision less favourable than the decision under appeal and, which may involve the removal of an existing award, the same protections, in terms of the provision of explanations, the detailing of powers and options, the requirements for recording, as set out in paragraph 77 of C15/08-09(DLA), should be afforded to the appellant.  In essence, if there is a possibility of an appellant, at the conclusion of appellate proceedings instigated by him or her, being in a worse position from the perspective of benefit entitlement, to that pertaining at the commencement of those proceedings, then the full implications of that possibility require clarification and explanation.  It seems to me that the principles of fairness, through the ordinary principles of natural justice, or the Human Rights Act 1998, incorporating Article 6 of the European Convention on Human Rights, require such an outcome.

 

33.   The distinction between whether the issue has or has not been raised by the appeal is, in any event, an arbitrary one and, it seems to be that the Department is often ambivalent as to whether the validity of an existing award, made by way of the decision under appeal, is a matter which is raised by the appeal.  The appeal submission in the present appeal is prepared in a format which is common in appeals where the decision under appeal incorporates an existing award.  Thus, at page 6 of the submission, the appeals writer, in relation to the appellant’s existing award of entitlement to the middle rate of the care component of DLA submits that:

 

‘I submit that (the claimant) has been awarded the middle rate of the care component from and including 20.3.07.  I submit that this is not disputed by (the claimant) or the Department and therefore need not be considered by the Tribunal in this current appeal, unless evidence becomes available on the day of the hearing casting doubt on the validity of the award.’

 

34.   There was a paragraph in almost identical language in the appeal submission which was before the appeal tribunal in C15/08-09(DLA).

 

35.   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 C15/0809(DLA).

 

36.   It should be noted that at sub-paragraph (vii) of paragraph 77 I indicated, as part of the safest and best practice, that appeal tribunals should:

 

‘(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.’

 

37.   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.

 

38.   In C15/08-09(DLA), I had also indicated, at paragraph 74:

 

‘While the procedure which is being recommended may seem detailed and cumbersome, it is submitted that it should not take an appeal tribunal long to set out its powers and options, nor to record the operation of the procedure in the relevant appeal tribunal documentation.’

 

39.   Those comments were made in the context of the appeal tribunal setting out its powers and the appellant’s to the appellant at an oral hearing where the appellant is present, or in cases determined on the papers alone.  The comments are equally applicable to cases where the appellant has failed to attend an oral hearing of the appeal, despite having given an indication that he or she would be present.

 

40.   How did the appeal tribunal in the instant case apply the principles set out in paragraph 77 of C15/08-09(DLA)?

 

41.   There were three separate hearings in respect of the appeal proceedings brought by the appellant.  He did not attend any of those hearings, through his own choice.  I am aware that TAS 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.

 

42.   As was noted above, the second appeal tribunal hearing took place on 9 July 2008.  Although it is not expressly mentioned in the record of proceedings for the appeal tribunal hearing, it was at this hearing that the Department, through its PO, raised the issue of the validity of the existing award.  In those circumstances, therefore and, based on the principles outlined above, the appeal tribunal was under a duty to act in accordance with the principles set out in paragraph 77 of C15/08-09(DLA).

 

43.   What did the appeal tribunal do?  As was noted above, the appeal was adjourned, and the following terms of the adjournment were noted:

 

‘Appellant is not in attendance.

 

Presenting officer is in attendance and states that the Department are calling into question the existing award.

 

The interests of justice require that the appellant is given an opportunity to attend the next hearing to give oral evidence.

 

His non attendance now at 2 panel hearings is noted.’

 

The appeal tribunal issued a direction in the following terms:

 

‘Re-list

 

Appellant should attend the next hearing.’

 

44.   It seems to me that the appeal tribunal was alert to the requirement that the appellant had to be made aware that what he might have considered to be a dormant issue in the appeal – his existing entitlement to the lower rate of the mobility component and the middle rate of the care component of DLA – had now become a live issue through the raising of it by the Departmental PO.

 

45.   As indicated above, I am of the view that the principles set out in sub-paragraph (vii) of paragraph 77 of C15/08-09(DLA) are equally applicable to oral hearings where the appellant is not in attendance and, as noted above, where removal of an existing award might be the potential outcome of the appeal tribunal hearing, where the validity of the award has been raised by the Department.  It is important to note that the appellant did not attend any of the hearings in connection with this appeal.  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.

 

46.   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 TAS 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.  Although, the statement of reasons for the appeal tribunal’s decision indicates that the terms of the adjournment of the appeal tribunal of 9 July 2008 had drawn the attention of the appellant to the fact that the existing award had been raised as a specific issue arising in the appeal, in my view, the appellant had not been fully and adequately informed of the appeal tribunal’s powers and his own options in light of those powers.  Accordingly, I find that the decision of the appeal tribunal is in error of law.

 

         The supersession issue

 

47.   Having found that the decision of the appeal tribunal was in error of law, I do not have to deal, in great detail, with the supersession issue which was raised by DMS in its observations on the application for leave to appeal.  I would note, however, that I agree with DMS that there is a technical error in how the decision notice relating to the appeal tribunal’s decision notice with respect to the care component has been formulated.  I would also agree, however, that this error is not sufficient to vitiate the decision of the appeal tribunal.

 

48.   One other aspect of the supersession issue does concern me, however.  In C12/08-09(DLA), at paragraphs 48 to 53, I said the following about the appeal tribunal’s duties with respect to the proper identification of a supersession decision, in appeals relating to DLA:

 

‘48.      The appeal tribunal was under a specific duty to determine whether the decision under appeal was correct.  As that decision was a supersession decision the duty was to determine whether there were grounds to supersede under regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.

 

49.       If the appeal tribunal determined that the decision-maker did not have grounds to supersede the earlier decision then that decision would continue to have effect.

 

50.       If the appeal tribunal determined that the decision-maker did have grounds to supersede the earlier decision then the appeal tribunal could have gone on to consider entitlement to benefit, in light of the substantive rules for entitlement to DLA.

 

51.       Finally, the appeal tribunal was under a duty to determine the effective date from which any supersession decision should take effect.

 

52.       The appeal tribunal’s duty is not only to consider the supersession issue, including grounds, entitlement and effective date, but to make clear that it has done so.  It is not sufficient for it to be, as DMS suggests, implicit from the appeal tribunal’s documentation that the supersession issue was addressed.  That consideration must be explicit from the decision notice, the statement of reasons or a combination of both.  In the present case, I am of the view that it is not even implicit that consideration was given to the supersession issue.

 

53.       The consideration of the issues raised by the appeal is expressly a part of the appeal tribunal’s inquisitorial role (on which issue see the further comments of the Tribunal of Commissioners in Great Britain in R(IB) 2/04 at paragraph 32).  That would mean that the supersession issue ought to have been addressed, in any event.’

 

49.   In the instant case, the decision under appeal is a decision of the Department, dated 10 July 2007, in which a decision-maker of the Department decided that there were grounds to supersede an earlier decision of the Department, and awarded entitlement to the lower rate of the mobility component of DLA from 10 July 2007 and the middle rate of the care component of DLA from and including 20 March 2007.  The effective dates for supersession are, therefore, different for the mobility and care components.

 

50.   The decision notices for the appeal tribunal’s decision indicate that there should be a removal of entitlement to both components of DLA from and including 10 July 2007, which equates to the Departmental effective date in respect of the mobility component.  The statement of reasons for the appeal tribunal’s decision with respect to the mobility component makes specific reference to the 10 July 2007, as a date on which the appeal tribunal determined that there had been a relevant change.  There is no similar consideration of the effective date within the statement of reasons for the care component.

 

         The appellant’s other grounds for seeking leave to appeal

 

51.   Having found that the decision of the appeal tribunal is in error of law, on the basis of one of the grounds cited by the appellant, I do not have to consider the appellant’s other grounds for appealing.  I would indicate, however, that I would not have found the decision of the appeal tribunal to be in error of law on the other grounds cited by the appellant.

 

         Disposal

 

52.   The decision of the appeal tribunal dated 11 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.

 

53.   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.

 

54.   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.

 

55.   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 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.

 

56.   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 10 July 2007, in which a decision-maker of the Department decided that there were grounds to supersede an earlier decision of the Department, and awarded entitlement to the lower rate of the mobility component of DLA from 10 July 2007 and the middle rate of the care component of DLA from and including 20 March 2007;

 

         (ii)     the appellant will wish to consider what was said at paragraph 77 of C16/08-09(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