AMcK-v-Department for Social Development (DLA) [2010] NICom 47

Decision  No:  C46/09-10(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 26 January 2009

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.     Having considered the circumstances of the case, I am satisfied that the appeal can properly be determined without a hearing.

 

2.     The decision of the appeal tribunal dated 26 January 2009 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 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

 

7.     On 18 May 2008 a decision-maker of the Department decided that the applicant should not be entitled to DLA from and including 15 January 2008.  A telephone call disputing the decision dated 18 May 2008 was received on 18 June 2008.  Further correspondence in connection with the claim was received on 27 June 2008.  On 11 July 2008 the decision dated 18 May 2008 was reconsidered but was not changed.  The appeal was received in the Department on 12 August 2008.  Further correspondence was received from the applicant’s representative on 3 September 2008.

 

8.     The appeal tribunal hearing took place on 26 January 2009.  The applicant was present with her husband, and was represented.  There was no Departmental presenting officer present.  The appeal tribunal disallowed the appeal, and confirmed the decision dated 18 May 2008.

 

9.     On 30 April 2009 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS).  On 14 May 2009, the application for leave to appeal was refused by the legally qualified panel member (LQPM).

 

         Proceedings before the Social Security Commissioner

 

10.   On 22 May 2009, a further application for leave to appeal to the Social Security Commissioner was received in the Office of the Social Security Commissioners and Child Support Commissioners (OSSC).

 

11.   On 24 July 2009 observations were sought from Decision Making Services (DMS) and these were received on 13 August 2009.  DMS opposed the application on most of the grounds cited by the applicant but supported the application on one identified ground.  Observations were shared with the appellant on 9 September 2009.

 

12.   On 25 November 2009 I granted leave to appeal, giving as a reason for doing so, that an ‘arguable issue arises as to whether the statement of reasons for the appeal tribunal’s decision is adequate to explain how the appeal tribunal assessed the evidence which was before it, and how the appeal tribunal arrived at its conclusions on the issues arising in the appeal’.

 

13.   On 13 November 2009 further correspondence in the form of an e-mail was received in TAS, and was accompanied by a copy of Form Per1, signed and dated 26 January 2009.

 

14.   On 29 December 2009 a further submission was received in OSSC from the applicant’s representative which was shared with DMS on 11 January 2010.

 

         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.”

 

         Was the decision of the appeal tribunal in the instant case in error of law?

 

         The appellant’s general practitioner(GP) records

 

17.   In the application for leave to appeal to the Social Security Commissioner, the appellant’s representative has submitted that the decision of the appeal tribunal was in error of law on the basis of a number of submitted grounds.  One of these grounds is that:

 

‘The Tribunal had the benefit of the appellant’s General Practitioner’s notes and there is no record of this fact in either the Record of Proceedings or Statement of Reasons.  There is no reference in the decision that the Tribunal referred to the General Practitioner’s notes.’

 

18.   It seems to me that two issues arise from this submission, as follows:

 

(i)            the omission to record, in the record of proceedings for the appeal tribunal hearing, that the appeal tribunal had access to the GP records; and

 

(ii)          the omission to make reference to the GP records in the statement of reasons for the appeal tribunal’s decision.

 

19.   In C39/09-10(DLA), at paragraphs 25 to 31, I made the following general comments about records of proceedings:

 

‘25       Regulation 55(1) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, provides that:

 

‘55(1) A record of the proceedings at an oral hearing, which is sufficient to indicate the evidence taken, shall be made by the chairman or, in the case of an appeal tribunal which has only one member, by that member, in such medium as he may determine.’

 

26.       Regulation 55 is not prescriptive about the format of the record of proceedings for the appeal tribunal hearing.  Nonetheless, the President of Appeal Tribunals for Northern Ireland has recommended the use of the template form for the purpose of making of a record of proceedings for use in each case.  Section 1 of the form is headed ‘Documents Considered’ and in this section, one would expect the chairman to note, in a summary format, the documentation which was before the appeal tribunal, including the documentation which was made available to the appeal tribunal in advance of the hearing, and any documentation which was made available to the appeal tribunal on the day of the hearing itself.  The ‘Documents Considered’ section serves as a useful ‘aide-memoir’ to the chairman of the appeal tribunal as to the documentary evidence or submissions which were before the appeal tribunal.  That aide-memoir would be very useful if and when the chairman is asked to prepare a statement of reasons for the appeal tribunal’s decision.

 

27.       In the present case, the ‘Documents Considered’ section of the record of proceedings is blank.  The statement of reasons for the appeal tribunal’s decision makes reference, however, to certain documentation, including the appellant’s general practitioner (GP) records, which were before the appeal tribunal.  I do not understand, therefore, why a separate note of the documentation was not made in the ‘Documents Considered’ section.

 

28.       In the application for leave to appeal to the Social Security Commissioner, the appellant’s representative submits that several pieces of documentation were submitted to the appeal tribunal including a letter from the appellant’s GP, a written submission and a letter from the ‘Community Addictions’ team.  The appellant’s representative submits that there is no reference to the letter from the ‘Community Addictions’ team, in the record of proceedings or in the statement of reasons and, more particularly, no indication of whether the appeal tribunal accepted or rejected this evidence.  The appellant’s representative submits that, accordingly, the reasons for the appeal tribunal’s decision are inadequate.  This is a submission which is supported by DMS.

 

29.       In C16/08-09(DLA), I said the following, at paragraph 54:

 

            ‘…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.”

 

30.       In the instant case, I am presuming that the letter from the ‘Community Addictions’ team was submitted to the appeal tribunal on the basis of its relevance to the issues arising in the appeal or on the basis that it provided supportive evidence on the other submissions concerning the appellant’s potential entitlement to DLA.  The appeal tribunal may have considered the evidence contained in the letter from the ‘Community Addictions’ team to have no relevance to the issues arising in the appeal, or did not support the submissions in connection with potential entitlement to DLA.  Nonetheless, the appeal tribunal was under a duty to indicate that it had considered the documentation, and indicate what it made of that documentation in relation to its determination of the issues arising in the appeal.

 

31.       Having found that the appeal tribunal was under a duty to consider the relevant documentation, and having failed to consider it, and explain, in its statement of reasons, that it has so considered it, I find that the decision of the appeal tribunal is in error of law.’

 

20.   In the instant case, there are separate records of proceedings for the care and mobility components of DLA.  The ‘Documents Considered’ section of the record of proceedings for each Component commences with the following:

 

‘Departmental submission and scheduled documents, list of “attacks” from January 2008 to January 2009 (149 days ill in 2008), list of medication, written submission (26.01.2009) and CDLA/12315/96.

 

The past papers show that on 05.01.2007 she was allowed low rate mobility and highest rate care from and including 11.09.2006.  She was then disallowed on 10.08.2007 in circumstances which are unclear, got a no change decision 05.12.2007 and claimed again on 15.01.2008.’

 

21.   The record of proceedings for the mobility component of DLA contains the following entry:

 

‘(The claimant) (to Legally Qualified Member)

…

 

We saw the General Practitioner records.  Happy to proceed.’

 

22.   That entry would suggest that the appellant’s GP records were before the appeal tribunal and were viewed by (the claimant), the appellant, and those who were with her – her partner and her representative.  At first glance, therefore, the omission to record in the ‘Documents Considered’ section of the record of proceedings, although not in accordance with the good practice standards set out in C39/09-10(DLA), would not seem fatal to the overall decision.

 

23.   In C28/08-09(DLA), at paragraphs 43 to 45 and 59 to 63, I reviewed the procedures, both administrative and judicial, for the availability and consideration of GP records by an appeal tribunal.  Those procedures include the completion, on the day of an appeal tribunal hearing, with both judicial and administrative input, of a Form ‘Per1’.

 

24.   Form ‘Per1’ is utilised to record the outcome of a ‘vetting’ process, the purpose of which is to determine whether there exists within the GP records any evidence which could be deemed to be harmful, and to assist the LQPM to decide whether such evidence should be withheld from the appellant, under regulation 42 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.

 

25.   The vetting of the medical records is usually undertaken by the medically qualified panel member (MQPM) who is part of the appeal tribunal which will hear and determine the appeal to which the GP records relate.  When the GP record vetting process has been completed the MQPM and LQPM, where relevant, will complete appropriate sections of a TAS form ‘Per1’, which records the outcome of the vetting process.

 

26.   Finally, part three of Form ‘Per1’ is completed by the clerk to the appeal tribunal to record the names and positions of any individual who have perused the GP records as part of the appeal tribunal proceedings.

 

27.   To clarify the position in the instant case, I directed that further enquiries be made from the Appeals Service (TAS), to determine what the correct position was with respect to the availability to the appeal tribunal of the appellant’s GP records.  I sought production of any Form ‘Per1’ which had been completed on the day of the appeal tribunal hearing.

 

28.   Part One of the form, which is concerned with the vetting of the GP records has been completed.  There is a declaration that the GP records have been vetted and that they do not contain any harmful medical evidence.  It is signed by the MQPM and dated 26 January 2009, which was the date of the appeal tribunal hearing.

 

29.   As a result of the declaration made in part one of the form, there was no requirement for the LQPM to complete part two of the form, which, accordingly, in the instant case remains blank.

 

30.   Part three of the form has also been completed.  It records that the medical records had been perused by Ms Amanda Deans from the Citizens Advice Bureau.  Ms Deans was noted on the record of proceedings as the appellant’s representative, and as being present at the oral hearing of the appeal.  Part three of the form is signed by the appeal tribunal clerk and dated 26 January 2009.  What is confusing is that there is no record in part three of the form that the GP records were perused by the members of the appeal tribunal.

 

31.   The absence of an entry with respect to the GP records in the ‘Documents Considered’ section of the record of proceedings is perplexing, when there is the further entry that the records were perused by the appellant.  The perplexity is compounded by the failure to note the GP records in the statement of reasons and the ambiguous entry on the Form Per1.  It seems to me that two possibilities exist:

 

(i)            the appeal tribunal declined to view the GP records but the MQPM undertook the necessary vetting exercise in order that the appellant and/or her representative could view the records;

 

(ii)          the failures to note the GP records in the ‘Documents Considered’ section of the record of proceedings and to enter that the members of the appeal perused the GP records were administrative errors on the part of the LQPM and the clerk to the appeal tribunal.

 

32.   I am of the view that the scenario in (ii) above is the more likely.  Although the issue is marginal, the further failure to make any reference to the GP records in the statement of reasons, and the clear ambiguity in the completion of Form Per1, reveals sufficient and unresolved doubt as to how the appellant’s GP records were dealt with by the appeal tribunal.  That amounts, in my view, to a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings and is, therefore, an error of law.

 

33.   In written observations on the application for leave to appeal, DMS has supported the application for leave to appeal on the specific ground relating to the management of the appellant’s GP records by the appeal tribunal.  In those observations, DMS cited parts of my decision in C15/08-09(DLA) which was also concerned with how appeal tribunals managed and assessed evidence obtained from GP records.  At paragraphs 80 to 82, I stated:

 

‘80.      My understanding is that in appeals involving DLA in Northern Ireland, there is a procedure which results in the GP records relating to the appellant being made available to the appeal tribunal in the majority of cases.  The procedure is consent based and relies on the agreement of both the appellant and the GP to the release of the records for consideration by the parties to the proceedings and the appeal tribunal.  The withholding of consent by either the appellant or the GP will mean that the records will not be released.  Of course, GP records may be made available in appeals relating to other social security benefits, although such availability is not routine.

 

81.       My understanding is also that the ‘records’ which are made available to the appeal tribunal may be in a variety of formats.  What the appeal tribunal might see is the complete ‘paper’ file relating to the appellant.  Alternatively, the GP surgery may make available screen print copies of specific extracts from the records, for a particular period in time.

 

82.       Once before the appeal tribunal, the content of the GP records form part of the evidence which is before the appeal tribunal.  Once before the appeal tribunal, the evidence contained within the GP records must be weighed and assessed.  Further, the appeal tribunal is under a duty to give a sufficient explanation of its assessment of the evidence, explaining why it took the particular view of the evidence which it did.  Any conflict in the evidence before the appeal tribunal should be clearly resolved and explained.’

 

At paragraphs 88 to 89 I added:

 

88.       Nonetheless, I am of the view that there are important considerations for the parties to the proceedings, and the appeal tribunal, in relation to the use of GP records in DLA cases.  It will be safest and best practice for the parties to the proceedings to make reference to specific aspects of the GP records in submissions to the appeal tribunal.  For example, a representative might indicate that reliance is placed on a report dated [], from Mr [], consultant psychiatrist at [] hospital.  In turn, the appeal tribunal should note the specificity of the medical evidence to which reference is being made, in the record of proceedings for the appeal tribunal hearing.  In the statement of reasons for the appeal tribunal’s decision, reference should be made to specific medical reports, or other entries on which the appeal tribunal has relied or which it has rejected.  For example, the reasons might refer to an attendance at the Accident and Emergency Unit of [] hospital on [] date, during which [] was noted.

 

89.       Detailed recordings of submissions in respect of the evidence contained in the GP records, and precise references in statements of reasons will ensure that the Social Security Commissioner to whom any subsequent application or appeal is made can be certain as to the specificity of the evidence which was in contention before the appeal tribunal.’

 

34.   It is possible to envisage a case where an appeal tribunal, having assessed the evidence which is contained within GP records which have made been made available to it, determines that the evidence within records has little or no relevance to the issues arising in the appeal or minimal value in terms of resolving the issues arising in the appeal.  In such circumstances, it would be safest and best practice for an appeal tribunal to add to the statement of reasons a specific reference to the evidential assessment undertaken in respect of the GP records and to outline the lack of evidential value or relevance found by the appeal tribunal.  It seems to me that such an addition would amount to no more than a few additional lines or brief paragraph to the statement of reasons but would give a clear confirmation that the relevant evidence has been assessed.

 

         The appellant’s other grounds for appealing to the Social Security Commissioner

 

35.   In the application for leave to appeal to the Social Security Commissioner, the appellant’s representative, in addition to the submissions concerning the appellant’s GP records, submitted that the decision of the appeal tribunal was in error of law on the basis that:

 

(i)      the appeal tribunal gave insufficient reasons for failing to accept the diagnosis of pancreatitis and poor prognosis contained in a report from the appellant’s GP;

 

(ii)     the appeal tribunal failed to indicate why it accepted and preferred the content of a report from an examining medical practitioner;

 

(iii)    it was unclear why the appeal tribunal did not accept a report from the appellant’s GP;

 

(iv)    certain of the facts found by the appeal tribunal were not supported by the evidence; and

 

(v)     in preferring the report of the examining medical practitioner to correspondence from a community psychiatric nurse, the appeal tribunal had failed to take into account the appellant’s mental health at the time of the decision.

 

36.   I would note that I would not have found the decision of the appeal tribunal to be in error of law on the basis of the grounds set out in (ii) to (v) above, and would agree with the submissions made by DMS in response to these grounds.

 

37.   In relation to the ground at (i) above, I note that in the statement of reasons for the appeal tribunal’s decision, the appeal tribunal has recorded:

 

‘… She has no real diagnosis …’

 

38.   In R(DLA) 3/06, at paragraphs 35 to 37, a Tribunal of Commissioners in Great Britain stated:

 

‘35.      “Disability” is conceptually distinct from “medical condition”.  “Disability” is entirely concerned with a deficiency in functional ability, ie the physical and mental power to do things.  Of course, a diagnosable medical condition may give rise to a disability.  For example, a condition that inevitably involves the loss of a sense or a limb would give rise to an obvious diminution in functional capacity.  But entitlement to DLA is dependent upon a claimant’s inability to cope with care and mobility without assistance and with his consequent reasonable care and mobility needs; and not upon the diagnosis of any medical condition.  Even if a person has a serious medical condition in the sense that his life is imminently threatened – perhaps some asymptomatic heart condition – that person is not entitled to either component of DLA if the condition has no adverse impact on his ability to care for himself and be mobile without assistance.  Conceptually and in ordinary language usage, “disability” cannot be equated with “medical condition”; and a “severe disability” is not the same as a “serious medical condition”.

 

36.       Contrary to this usage, do the statutory provisions of sections 72 and 73(1)(d) require “disability” to mean “medical condition”?  The requirement of these provisions is that the claimant is “so severely disabled … that” certain consequences follow.  This clearly does not and cannot mean “having a serious medical condition”.  If severity of disability is measured by reference to the seriousness of the medical condition, rather than to the effects in terms of care needs, the provisions could not achieve their purpose of correlating entitlement to care needs.  Furthermore, as the Chief Commissioner recognised in the formulation of his question in R(A) 2/92, in context the equation of “disability” with “medical condition” requires a severance of the statutory language, which would deprive the provision of any criteria by which “severity” could be assessed.  Indeed, the very use of the word “severe” is an indication that “disability” is a reference to some functional deficiency (see paragraph 41 below).

 

37.       Sections 72 and 73(1)(d) require a claimant to be “disabled physically or mentally”, and provide no further definitions or guidance.  If there had been an intention to require proof of a diagnosed or diagnosable medical condition, then the provisions could have made this clear, as they do in other benefit contexts (eg the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 (SI 1985/967).  We were also referred to section 1(1) of the Disability Discrimination Act 1995 which provides “[s]ubject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities”.  Schedule 1 provides a number of detailed provisions that supplement section 1, including in paragraph 1 the following: “Mental impairment’ includes an impairment resulting from or consisting of a mental illness only if the illness is a clinically well-recognised illness”.  As Mr Maurici submitted, had Parliament intended to adopt a similar restricted approach to the concept of “disability” in the 1992 Act, it could and no doubt would have done so.’

 

39.   The key phrase in the extract cited above is ‘… entitlement to DLA is dependent upon a claimant’s inability to cope with care and mobility without assistance and with his consequent reasonable care and mobility needs; and not upon the diagnosis of any medical condition.’  Accordingly, if reasoning of the appeal tribunal in the instant case, (and it is not clear that this was its reasoning) was that the appellant could not have an entitlement to DLA because she had ‘no real diagnosis’ then such reasoning is erroneous.

 

40.   Finally, it is important to note that in further correspondence received from the appellant’s representative on 29 December 2009, it is noted that:

 

‘We ask the Commissioner to consider (the claimant’s) Community Psychiatric Nurse B was a witness at the Tribunal.  The Tribunal failed to ask Mr B for medical evidence which would have helped her case … Mr B, Community Psychiatric Nurse was not asked to give evidence or make any comment.’

 

41.   The record of proceedings for the appeal tribunal hearing clearly record that Mr B did, in fact, give evidence to the appeal tribunal.  An entry reads:

         ‘Mr B

 

         Physical and mental go hand in hand.  Cognitive Behavioural Therapy October 2007 – 50 minutes every 3 weeks – helping and crisis management.’

 

42.   Further, the appellant was represented at the oral hearing and that representative, if she had felt that the evidence adduced from Mr B was insufficient could have sought further evidence by way of questioning of him.

 

         Disposal

 

43.   The decision of the appeal tribunal dated 26 January 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.

 

44.   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 18 May 2008, a decision-maker of the Department decided that the applicant should not be entitled to DLA from and including 15 January 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

 

 

 

21 May 2010