MC-v-Department for Social Development (DLA) [2010] NICom 81

 

                              Decision No: C49/10-11(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 24 February 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 24 February 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 the entitlement of the claimant to disability living allowance (DLA) remains to be determined by another appeal tribunal. It is equally important to stress that the differently constituted appeal tribunal will be considering entitlement to both components of DLA. 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 21 March 2008 a decision-maker of the Department decided that the claimant, represented through the claims and decision-making process by his mother and appointee, was not entitled to DLA from and including 11 June 2008, on a renewal claim. There had been two previous awards.

 

9.       Following a telephone call disputing the decision, and the receipt of further correspondence, the decision dated 21 March 2008 was reconsidered on 12 May 2008 but was not changed. An appeal against the decision dated 21 March 2008 was received in the Department on 12 June 2008.

 

10.     The substantive appeal tribunal hearing took place on 24 February 2009. The appointee was present and was represented. The Department was represented by a Departmental presenting officer. The appeal tribunal allowed the appeal to the extent of making an award of entitlement to the lower rate of the mobility component of DLA for the fixed period from 11 June 2008 to 14 August 2008. The reason for making a fixed period award was that the appeal tribunal was given evidence that there had been a subsequent claim to DLA, which had been disallowed from and including 15 August 2008. The appeal tribunal disallowed the appeal, in part, to the extent that it made no award of entitlement to the care component of DLA. 

 

11.     On 29 April 2009 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service. On 2 May 2009 the application for leave to appeal was refused by the legally qualified panel member.

 

Proceedings before the Social Security Commissioner

 

12.     On 3 June 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. On 20 August 2009 observations were sought from Decision Making Services (DMS) and these were received on 11 September 2009. DMS opposed the application on all of the grounds submitted by the applicant.

 

13.     Observations were shared with the applicant on 17 September 2009. On 16 October 2009 written observations in reply were received from the appellant’s representative, which were shared with DMS on 3 November 2009. On 22 April 2010 further observations were received from DMS in response to a specific question directed to them. These further observations were shared with the appellant’s representative on 26 April 2010. On 21 May 2010 a further submission was received from the appellant’s representative.

 

Errors of law

 

14.     A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.

 

15.     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?

 

16.     It is clear that the challenge to the decision of the appeal tribunal is in respect of its decision with respect to the care component of DLA alone.

 

17.     The record of proceedings for the appeal tribunal hearing runs to four A4 pages, and from this it is clear that the appeal tribunal went about the forensic evidence-gathering process in a careful and thorough manner. Equally, the appeal tribunal has provided a detailed, analytical statement of reasons for its decision with respect to the care component of DLA. Where then did the appeal tribunal go wrong in law?

 

18.     In the appeal submission prepared for the appeal tribunal hearing, and as part of the evidence submitted by the representative, the appeal tribunal was provided with a number of reports and correspondence from those responsible for the education of the claimant. These included:

 

(i)       a report dated 12 March 2008 from the Principal of the claimant’s primary school;

 

(ii)      a letter dated 29 April 2008 from the Principal of the claimant’s primary school;

 

(iii)      a report dated 16 December 2008 from the Principal of the claimant’s secondary school; and

 

(iv)      a letter dated 23 February 2009 from the Principal of the claimant’s secondary school.

 

19.     In a written submission prepared for the appeal tribunal hearing, the representative submitted that the evidence from those responsible for the education of the claimant, demonstrated that he had a requirement for assistance while at school and that such assistance could amount to ‘attention’ for the purposes of entitlement to the care component of DLA.

 

20.     At the appeal tribunal hearing, the representative renewed his submission with respect to the assistance provided to the claimant at school, and provided the appeal tribunal with a copy of the decision of the Social Security Commissioner in Great Britain in CDLA/3737/2002, in support of that submission.

 

21.     How did the appeal tribunal deal with the evidence from those responsible for the education of the claimant? To begin with, the appeal tribunal raised questions about the reliability of certain of the evidence which had been provided by those responsible for education provision. The appeal tribunal was concerned at what appeared to be discrepancies between reports which had been sought as part of the official decision-making process and further correspondence from the same source which had been commissioned as part of the appeal process. Further, the appeal tribunal questioned how the principal of the secondary school arrived at the conclusion that the claimant had a diagnosis of attention deficit hyperactive disorder.

 

22.     Nonetheless, the appeal tribunal has accepted that the assistance provided to the claimant while at school, could be taken into consideration when assessing whether there was an entitlement to the care component of DLA. In the statement of reasons for the appeal tribunal’s decision, the appeal tribunal has recorded:

 

‘Despite the unreliable presentation of evidence the Tribunal took a broad view of all evidence including Mr Grant’s comments in relation to (the claimant’s) educational needs/classroom assistant input.

 

Whilst some help with cleansing/hygiene, encouragement to eat particular foods, checking clothing and now being told to toilet regularly and even taking extra needs at school regarding education into account it is our unanimous opinion that the criteria for Disability Living Allowance is not satisfied. (emphasis is mine)’

 

23.     Was the appeal tribunal correct to take into account the assistance provided to the claimant at school in assessing whether he satisfied the conditions of entitlement to the care component of DLA and, more particularly, and by implication, was the appeal tribunal correct to decide that the assistance which was provided at school could amount to attention in connection with bodily functions?

 

24.     In CDLA/3737/2002, the claimant suffered from Leber’s hereditary optic neuropathy, a disease of the eyes which significantly limited her distance and near vision. The initial appeal tribunal, which had disallowed her appeal with respect to the care component of DLA, had before it a report outlining the extra assistance which the claimant required while at school. The Commissioner stated, at paragraphs 9 to 11:

 

‘9.       In my judgment there can be no doubt that the measures referred to in the report are ‘in connection with’ the bodily function of seeing. They enable the Claimant to see more easily materials which she would otherwise have difficulty in seeing. The point made by the Secretary of State, as I understand it, is in effect that any school child would require a substantial degree of attention by a teacher, but that would be with reference to the function of education, not in connection with any bodily function. However, that in my judgment misses the point that the specific measures outlined in the report are either to enable the Claimant to see more easily exactly the same materials which the other children see, or to enable her to see substitute materials imparting the same information. If the measures amount to ‘attention’ for that reason they in my judgment clearly amount to attention ‘in connection with a bodily function’, namely the function of seeing.

10.     Further, there can in my judgment be no doubt that the Claimant’s reason for wishing to see that information, namely in order to be educated at school, is well within the range of purposes for which assistance with bodily functions can reasonably be required for disability living allowance purposes.

11.     The only question of difficulty is in my judgment the extent to which the relevant measures constitute “attention”. It has been said many times that this concept involves personal service of an intimate nature. It need not involve actual physical contact, but must be carried out in the presence of a claimant (with perhaps certain very limited exceptions – see for example the recent decision of the Court of Appeal in Ramsden v Secretary of State for Work & pensions [2003] EWCA Civ 32, where previous authority is reviewed in some detail). I have no doubt that the obtaining or preparation of some of the materials recommended by the report (e.g. desk copies of board work, large print books etc.) would not constitute “attention”. Those operations could, and indeed for the most part would, be done in the absence of the Claimant, indeed very probably outside school hours and to some extent outside the school premises. Similarly, in so far as measures involve the initial devising and putting in place of a system which will assist the Claimant e.g. that she always sits in a particular position, has access to certain materials etc, the element of personal service is absent, and in any event the initial putting in place and subsequent modification as necessary of the system would be unlikely to take place with sufficient frequency as to be significant for disability living allowance purposes. The subsequent monitoring of such systems (e.g. a teacher simply checking that the Claimant is indeed sitting in the designated position) would also not generally, it seems to me, amount to “attention”, but rather to supervision. I have, however, come to the conclusion, looking at the matter broadly, that measures of the nature indicated in the report are likely to involve a teacher or classroom assistant actually intervening, with specific reference to the Claimant, in a manner which amounts to ‘attention’, on a significant number of occasions throughout the average school day. The sort of examples I have in mind, arising from the measures outlined in the report, are (a) the need actually to hand to the Claimant desk copies of board work etc on each occasion on which it is required (b) the need actually to alter the Claimant’s seating position, whether in class or (perhaps more particularly) in other school activities, when it is found that she is not in fact in the most appropriate position (c) the need to check the Claimant’s work while she is doing it, to a perhaps greater extent than would be normal, to make sure that she is not in fact being disadvantaged (particularly in relation to the specific examples mentioned in the report of literacy and numeracy) and (d) the need to provide additional support during games and other communal activities.  On balance, I conclude that attention of this nature would be needed frequently throughout the average school day, and would be required to an extent which is substantially in excess of that required by a child of the Claimant’s age without disability.’

 

25.     The Secretary of State applied for permission to appeal to the Court of Appeal for England and Wales, submitting that the classroom assistance did not constitute attention, was not required frequently, was not substantially in excess of that required by a child of her age without disability and was not required throughout the year. The Commissioner granted permission on the ground that the issue as to whether the classroom assistance constituted attention was probably an issue of law of wider importance.

 

26.     The Court of Appeal held (R(DLA) 1/04), in dismissing the appeal, that:

 

(i)       it would not be right for the court to embark upon consideration of what amounted to a root and branch attack on parts of the Commissioner's decision which, despite the ample opportunity provided, had not been the subject of any real submissions to him;

 

(ii)      the issue as to whether the classroom assistance constituted attention raised no new issue of principle. The issue between the parties was not as to the meaning of the statutory provisions but merely as their application to the facts of the case;

 

(iii)      the ordinary courts should approach the complex area of social security law with an appropriate degree of caution (following Cooke v Secretary of State [2001] EWCA Civ 734) R(DLA) 6/01);

 

(iv)      despite the Commissioner's grant of permission to appeal the court declined to embark on the merits of the appeal.

 

27.     R(DLA) 1/04 was considered by the Commissioner in CSDLA/427/06, where the Commissioner held that the question in respect of the nature of the educational measures provided for the claimant were not dealt with at all by the Court of Appeal. Nonetheless, the Commissioner went on to state, at paragraph 9:

 

‘I should perhaps add that in my view educational provision at school is on any view outwith the scope of the statutory provisions.  The cost of disability living allowance is derived from public funds as is the educational provision that the claimant enjoys.  The cost of such educational provision will encompass such special measures as are needed to meet the educational requirements of the claimant.  To encompass educational provision within the scope of attention would, in these circumstances, result in the public purse paying twice for the same thing.  That cannot be what Parliament intended.  Disability living allowance is not a form of publicly funded compensation for being disabled.  It is a recognition of the additional cost of care for those who are disabled.  When taken in that context it can be seen that additional educational requirements for the purpose of learning to reach [sic] and write are of an entirely different nature to attention in connection with an impaired bodily function.  It fortifies the view which I have taken in paragraph 8.’

 

28.     With respect to the Commissioner, the analysis in paragraph 9 fails to recognise the true reasoning in CDLA/3737/2002. In that case, the Commissioner found that certain of the assistance being provided at school could amount to attention in connection with the bodily function of seeing, and that the claimant’s ‘… reason for wishing to see that information, namely in order to be educated at school, is well within the range of purposes for which assistance with bodily functions can reasonably be required for disability living allowance purposes’. That had nothing to do with learning to read or write. The decision in CSDLA/427/2006 was disapproved of by another Commissioner in CDLA/1983/2006, at paragraph 22, as the decision had been given one week after the decision of a Tribunal of Commissioners, reported as R(DLA) 1/07, and had made no reference to that decision.

 

29.     Finally, in CDLA/3737/2002, the Commissioner found that the appeal tribunal had failed to make sufficient findings in fact as to the extra attention which the appellant reasonably required at school and failed to explain why a need for the measures outlined in the relevant report did not amount to a requirement for attention in connection with the appellant’s bodily functions.  

 

30.     How do these principles apply to the reasoning of the appeal tribunal in the instant case? I am of the view that the reasoning of the appeal tribunal is problematic, in two respects. Firstly, the appeal tribunal has failed to identify the bodily function in connection with which the extra assistance at school constituted attention. It is important to remember that in CDLA/3737/2002, the Commissioner was specific that the extra assistance was in connection with the bodily function of ‘seeing’. Secondly, and as in CDLA/3737/2002, the appeal tribunal has failed to make sufficient findings in fact as to the extra attention which the appellant reasonably required at school and failed to explain why a need for the measures outlined in the relevant report did not amount to a requirement for attention in connection with the appellant’s bodily functions. I find, albeit with some reluctance, given the appeal tribunal’s care with other aspects of the appeal, that the decision of the appeal tribunal is in error of law.

 

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

 

31.     Having found that the decision of the appeal tribunal is in error of law on the basis of the reasoning set out above, 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.

 

32.     More particularly, I find no basis for the submission that the appeal tribunal unnecessarily concentrated on diagnosis, in contravention of the principles set out in R(DLA) 3/06. The appeal tribunal’s comments on the diagnosis question were in the context of the comments and conclusions made by the principal of the secondary school. Thereafter, the appeal tribunal’s analysis was wholly in keeping with the principles set out in R(DLA) 3/06.

 

33.     I would also not have interfered with the appeal tribunal’s conclusions with respect to the submitted problems with incontinence or, more generally, with the appeal tribunal’s conclusions on the other non-school related attention which it found to be reasonably required.

 

Disposal

 

34.     The decision of the appeal tribunal dated 24 February 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.

 

35.     Given the very short period under consideration, I am extremely reluctant to refer the case to a differently constituted appeal tribunal for re-determination. I have no option but to do so, for the following reasons. The period now under consideration is from 11 June 2008 to 14 August 2008. That period will probably include a time when the claimant was at school, likely to be until the end of June 2008, and a period when he was on holiday, likely to be from the end of June 2008 to 14 August 2008. As will be noted below, specific findings in fact will have to be made about the assistance which was provided to the claimant when he was at school and, more generally, what the factual situation was when he was on holiday. I cannot make such findings in the absence of additional evidence concerning those issues. In CDLA/3737/2002, the Commissioner was in a position to make further findings for periods both when the appellant in that case was at school, and when he was on holiday. In that case, however, the period under consideration was much greater.

 

36.     I direct that the parties to the proceedings and the newly constituted appeal tribunal take into account the following:

 

(i)       the period under consideration is from 11 June 2008 to 14 August 2008;

 

(ii)      the appeal tribunal must make findings in fact concerning the dates during that period when the claimant was at school. The appeal tribunal could be assisted in this regard by evidence supplied by the claimant’s parents or representative;

 

(iii)      the appeal tribunal is to make findings in fact concerning the assistance which was provided to the claimant during the time in the relevant period when he was at school. The appeal tribunal could be assisted in this regard by evidence supplied by the claimant’s parents or representative;

 

(iv)      the appeal tribunal is to determine whether the assistance provided to the claimant when he was at school amounted to attention in connection with his bodily functions. That will require the appeal tribunal to identify the specific bodily function in respect of which the attention was provided, and to determine whether the attention was within the range of purposes for which assistance with bodily functions can reasonably be required. Although that will not be a straightforward task, in making those determinations the appeal tribunal might be assisted by the decision of the Tribunal of Commissioners in Great Britain in R(DLA) 1/07 and the Commissioner in CDLA/1983/2006;

 

(v)      during the time in the relevant period when the claimant was at school, the appeal tribunal is also to make findings in fact concerning the assistance which was provided to the claimant when he was at home, and to determine whether this amounted to attention, reasonably required, in connection with his bodily functions;

 

(vi)      the appeal tribunal is to make findings in fact concerning the assistance which was provided to the claimant when he was exclusively at home, that is during the holiday period, and to determine whether this amounted to attention, reasonably required, in connection with his bodily functions;

 

(vii)     the appeal tribunal is to consider the relevant period as a whole, and taking a common-sense view, has to determine whether during that period the conditions of entitlement to the care component of DLA are satisfied;    

 

(viii)    the appeal is also to consider whether during the relevant period the conditions of entitlement to the mobility component of DLA are satisfied;

 

(ix)      the appeal tribunal is be provided with details of the outcome of the decision-making and/or appeals process with respect to any further claims to DLA made subsequent to the period under consideration. 

 

         

          (Signed):  K Mullan

         

          COMMISSIONER

 

         

          31 AUGUST 2010