CK v Department for Social Development (DLA) [2011] NICom 147

Decision No:  C89/10-11(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 6 March 2009

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.    Having considered the circumstances of the case and any reasons put forward in the request for a hearing, I am satisfied that the application can properly be determined without a hearing.  I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.

 

2.    The decision of the appeal tribunal dated 6 March 2009 is not in error of law.  Accordingly, the appeal to the Social Security Commissioner does not succeed.  The decision of the appeal tribunal to the effect that the claimant is not entitled to either component of disability living allowance (DLA), from and including 1 February 2008, is confirmed.

 

       Background

 

3.    As will be noted below, one of the principal issues raised in this appeal relates to the validity of the claims and appeals process, and whether a valid appointment had been made.  Accordingly, reference is made to the claimant who is the person for whom entitlement to DLA has been sought and the claimant’s mother.

 

4.    The decision under appeal is a decision of the Department, dated 30 October 2007 which decided that the claimant was not entitled to DLA from and including 1 February 2008, on a renewal claim.  There had been previous awards of entitlement to DLA.  The claimant was born on 1 February 1992 so that by the time the claim form was received in the Department, she was under 16 years of age.  The claim form was signed by the claimant’s mother.

 

5.    Following a telephone call and correspondence to that effect, the decision dated 30 October 2007 was reconsidered on 22 November 2007 but was not changed.  An appeal against the decision dated 30 October 2007 was received in the Department on 12 December 2007.

 

6.    There were numerous adjournments of the appeal tribunal hearing leading up to the substantive appeal tribunal hearing.  The substantive appeal tribunal hearing took place on 6 March 2009.  The claimant was not present but her mother was.  The appeal tribunal disallowed the appeal and confirmed the decision dated 30 October 2010.

 

7.    On 5 June 2009 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.  The application for leave to appeal was signed by the claimant’s mother.  On 18 June 2009 the application for leave to appeal was refused by the legally qualified panel member (LQPM).

 

       Proceedings before the Social Security Commissioner

 

8.    On 17 August 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).  The further application was also signed by the claimant’s mother.

 

9.    On 22 September 2009 the claimant was requested to sign a form of authority to enable her mother to represent her before the Social Security Commissioner.

 

10.   On 16 February 2010 observations were sought from Decision Making Services (DMS), including a request to make observations on the appointee issue.  Observations were received on 9 June 2010.  DMS opposed the application on the grounds submitted by the applicant and set out observations on the appointee issue.  Observations were shared with the applicant on 26 March 2010.  On 20 April 2010 further written correspondence was received from the claimant’s mother which was shared with DMS on 28 April 2010.  On 27 July 2010 DMS was requested to clarify certain dates in connection with the appointee issue and to provide further observations on the application.  These further observations were received on 6 August 2010 and were shared with the claimant’s mother on 20 August 2010.

 

       Errors of law

 

11.   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.

 

12.   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 error of law in the instant case?

 

       The appointee issue

 

13.   In LM v Department for Social Development (DLA) ([2010] NICom 44 C30/08-09(DLA)), I said the following, at paragraphs 27 to 31:

 

‘The validity of the initial claim and subsequent appeals

 

27.     Regulation 42(1) and (2) of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987, as amended, provide that:

 

          ‘42(1)       In any case where a claim for disability living allowance for a child is received by the Department, it shall, in accordance with paragraphs (2) to (9), appoint a person to exercise, on behalf of that child, any right to which he may be entitled under the Act in connection with disability living allowance and to receive and deal on his behalf with any sums payable by way of disability living allowance.

 

          (2)           Subject to paragraphs (3) to (9), a person appointed by the Department under this regulation to act on behalf of the child shall—

 

          (a) be a person with whom the child is living; and

 

          (b) be over the age of 18 or, if the person is a parent of the child and living with him, be over the age of 16; and

 

          (c) be either the father or mother of the child, or, if the child is not living with either parent, be such other person as the Department may determine; and

 

          (d) have given such undertaking as may be required by the Department as to the use, for the child’s benefit, of any disability living allowance paid.’

 

28.     There is nothing in paragraphs 3 to 8 of regulation 42 which is of further relevance to the instant case.  Paragraph 9 defines a child as a person under the age of 16, although it is important to note that this definition was inserted by way of regulation 5(9)(b) of the Social Security, Child Support and Tax Credits (Miscellaneous Amendments) Regulations (Northern Ireland) 2005 (SR 2005 No.46) as from 18 March 2005.

 

29.     The ambit of the equivalent of regulation 42 in Great Britain, that is regulation 43 of the Social Security (Claims and Payments) Regulations 1987, as amended, which is in identical terms as regulation 42 in Northern Ireland, was considered by Commissioner Williams in CDLA/4228/2003.  At paragraphs 5 to 8 of that decision he stated:

 

          ‘Claiming disability living allowance for a child

 

5        I deal with the technical point first.  Where the Secretary of State receives a disability living allowance claim in respect of a child, regulation 43 of the Social Security (Claims and Payments) Regulations 1987 provides that the Secretary of State must appoint someone to exercise the child’s rights and to receive and deal with the payment of any allowance.  I am told by the Secretary of State's representative that the person appointed to act is normally the child benefit recipient.  That is usually the child’s mother, as in this case - obviously the most appropriate appointee for most child claims for disability living allowance.

 

6        The problem is that the regulation does not define “child”.  The facts of the case suggest that JH remained a “child” for child benefit purposes after he was 16 as he remained at school (Social Security Contributions and Benefits Act 1992, section 142).  But disability living allowance differentiates between awards for those who are 16 and over, and for those under 16.  For example, those under 16 are not expected to cook for themselves (Social Security Contributions and Benefits Act 1992, section 72(6)(a).  And in addition to the usual tests it must be shown that someone under 16 has a requirement for care or supervision substantially in excess of the normal requirements of someone of the child’s age (section 72(6)(b)).  In other words, the legislation assumes that parents or others will provide at least some personal care and supervision for anyone under 16.  That test was applied by the Secretary of State to stop JH’s claim.

 

7        There is no consistent approach to, or general definition in the Social Security (Claims and Payments) Regulations 1987 of, “child”.  For the purposes of regulation 9(2) (interchangeable claims for benefit), “child” appears to have the child benefit meaning.  In regulation 29 (payments to persons under age 18) the implication is that a person under 18 is a minor in the legal sense but not a child for the purposes of receiving benefit.  The Secretary of State's representative submits that for the purposes of regulation 43 “child” should be confined to those under age 16.  The educational status of a claimant is irrelevant to disability living allowance, while, as noted, the fact that someone is or is not 16 or under can be very important to a claim.  I agree.

 

8        “Child” in regulation 43 is limited to those under 16.  It follows that any appointment under regulation 43 automatically lapses when the child for whom the appointment is made becomes 16.  If he or she needs an appointee after becoming 16 as a matter of fact, then a new appointment must be made under regulation 33 (persons unable to act).  Otherwise the individual must make his or her own claims and appeals.  In this case JH has indicated that he wants the appeal to proceed.’

 

30.     It is clear that Commissioner Williams was dealing with the version of regulation 43 prior to the insertion of the definition of ‘child’.  Regulation 43(9) now also defines child for the purposes of the regulation as a person under the age of 16, following the insertion of that definition by regulation 7 of the Social Security, Child Support and Tax Credits (Miscellaneous Amendments) Regulations 2005 (SI 2005/337) as from 18 March 2005.  Accordingly his analysis in paragraphs 6 and 7 is no longer relevant.

 

31.     Further, I am in agreement with Commissioner Williams’ remarks in paragraph 8.  The insertion of the definition of ‘child’ as a person under the age of 16 must mean that a regulation 42 appointment ceases when that child reaches the age of 16.  That is logical as there are, as Commissioner Williams recognised in paragraph 6, differential tests for entitlement to aspects of DLA for those who are under 16, and those who are 16 and over.  This means that a person who reaches age of 16 and requires an appointee to assist with the making of a claim to DLA requires a new appointment to be made, under the provisions of regulation 33 of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987, as amended. Regulation 33(1) provides that:

 

          33 (1) Where—

 

(a)  a person is, or is alleged to be, entitled to benefit, whether or not a claim for benefit has been made by him or on his behalf;

 

(b)  that person is unable for the time being to act; and

 

(c)  no controller has been appointed by the High Court with power to claim or, as the case may be, receive benefit on his behalf,

 

          he Department may, upon written application made to it by a person who, if an individual, is over the age of 18, appoint that person to exercise, on behalf of the person who is unable to act, any right to which that latter person may be entitled and to receive and deal on his behalf with any sums payable to him.’’

 

14.   I added the following, at paragraphs 46 to 50:

 

‘46.     Article 13(2) of the Social Security (Northern Ireland) Order 1998 provides that the claimant and ‘any other person as may be prescribed’ shall have the right to appeal against a decision of the Department made on a claim for, or on an award of, a relevant benefit.

 

47.     Regulation 25 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended provides that for the purposes of Article 13(2) of the 1998 Order, amongst the other persons with a right of appeal is ‘… any person appointed by the Department under Regulation 33(1) of the Claims and Payments Regulations to act on behalf of another.’

 

48.     Regulation 33(1) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, provides that an appeal must be in writing either on a form approved for the purpose by the Department or in such other format as it accepts as sufficient for the purpose, and be signed by the person with a right to appeal to an appeal tribunal, or by a representative, where the person with a right of appeal has provided written authority to a representative to act on his behalf.

 

49.     Accordingly, a claimant and an appointee under regulation 33 of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987, as amended, have the right to appeal to an appeal tribunal against a decision of the Department.  In turn, an appeal must be signed by a person with a right of appeal (claimant or regulation 33 appointee) or a representative with written authority to act on behalf of the person with a right of appeal.

 

50.     In CIS/460/2003, Commissioner Levenson, in considering equivalent provisions in the Social Security Act 1998 and the Social Security and Child Support (Decisions and Appeals) Regulations 1999, stated, at paragraphs 5-7:

 

          5.  Section 12(2) of the Social Security Act 1998 provides the claimant with a right of appeal to an appeal tribunal but says nothing about the method of appealing.  Section 12(7) provides for regulations to be made which “may make provision as to the manner in which” appeals are to be brought.  Among such regulations are the Social Security and Child Support (Decisions and Appeals) Regulations 1999.  Regulation 33(1), so far as is relevant, provides that an appeal to an appeal tribunal shall be in writing either on a form issued for the purpose by the Secretary of State or in such other format as the Secretary of State accepts as sufficient for the purpose and shall:

 

          33(1)(a) be signed by

 

(i)    the person who, under … section 12(2), has a right of appeal; or

 

(ii)   where [that person] has provided written authority to a representative to act on his behalf, by that representative;

 

6.       Mrs B signed the appeal form on 26^th March 2002.  The Tribunal Appeals Service issued an enquiry form to the claimant on 20^th May 2002.  This form was not in the bundle of papers prepared for the Commissioner but is in the tribunal’s own file of which I have possession while considering the matter.  The first enquiry is “Do you want to withdraw your appeal?”.  There is a tick in the box to indicate “no” and the answer to the enquiry was signed by the claimant himself on 28^th May 2002.  In the circumstances of this case this seems to me to amount to the claimant providing written authority for his mother to act on his behalf in the appeal.

 

7.       Regulations 2 and 58 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 deals with the procedure for applying to a tribunal chairman (or legally qualified panel member) for leave to appeal to the Commissioner against a decision of the tribunal.  There is no requirement for the application to be signed by the claimant in person and, although that is obviously the best practice, it is not a legal requirement.  When a chairman has granted leave, notice of the appeal must be served on the Commissioners.  This is dealt with in regulations 12 and 13 of the Social Security Commissioners (Procedure) Regulations 1999.  Regulation 12(1) sets out what must be contained in the notice of appeal.  Again, there is no legal requirement that the notice be signed by the claimant.’

 

15.   In the instant case, the letter of appeal was prepared and signed by the claimant’s mother.  Was she, at that stage a regulation 33 appointee?  In relation to this issue, Mr Collins for DMS has submitted that the claimant’s mother had made efforts to be accepted as the claimant’s appointee but the Department had failed to act on the information which it had received.

 

16.   At paragraphs 52 to 55 of LM v Department for Social Development (DLA), I stated:

 

‘52.     It seems to me to be grossly unfair to challenge the validity of the appeal to the appeal tribunal.  The claimant’s mother thought that she had been validly appointed.  The Department did not initially challenge the validity of the appeal to the appeal tribunal.  Indeed, an officer of the Department, on 5 June 2008, by completion of Form AT37, which is a form of notification of an appeal by the Department to TAS, has accepted that the appeal was ‘duly made’.  Further the claimant’s mother is noted on the relevant Form AT37 as being the claimant’s ‘appointee’.

 

53.     The claimant’s mother would have taken corrective action had she known of the true position.  In my view, there should be no adherence to the strict requirements of the legislative provisions to deny a right of appeal in these circumstances and the denial of a right of appeal would be unjust in the circumstances.  It could be argued that the claimant’s mother acted as an agent for the claimant until the true appointee position was made known.

 

54.     Moreover, I have no doubt that the claimant has given his mother authority to act on his behalf as his representative.  As was noted above, on 10 April 2009 correspondence was forwarded to the claimant’s mother asking her to have a form of authority completed by the claimant.  On 27 April 2009 a completed form of authority, authorising the claimant’s mother to act in relation to the appeal to the Social Security Commissioner, and signed by the claimant on 21 April 2009, was received in OSSC.  Even if there was no written authority from the claimant in connection with the appeal to the appeal tribunal, it could easily be obtained, and I would hold that such authority was retrospective.

 

55.     Accordingly, I hold that the appeal to the appeal tribunal was validly made.’

 

17.   Mr Collins submits that on the basis of the principles set out in LM v Department for Social Development (DLA):

 

‘… I would submit that (the claimant’s) mother had completed the relevant forms issued to her by the Department and could not be faulted for being unaware that the Department had failed to make her an appointee under regulation 33 as discussed above.  The record of proceedings from the tribunal hearing on 06 March 2009 recorded (the claimant’s mother) as “appointee/mum” so it would appear there was no dispute in either the Department or tribunal’s mind regarding the validity of the appeal.  I would be of the opinion that the principles of C30/08-09(DLA) apply in (the claimant’s) case and the appeal to the appeal tribunal was validly made.’

 

18.   I would accept the submission made by Mr Collins and I hold that the appeal to the appeal tribunal was validly made.  Further, I have noted that the application for leave to appeal to the Social Security Commissioner made, initially, to the LQPM, was signed by the claimant’s mother.  I consider that this application was also validly made, on the basis of the comments of Commissioner Levenson at paragraph 7 of CIS/460/2003.  Finally, there are no legal or procedural difficulties with the proceedings before the Social Security Commissioner.  As was noted above, in the OSSC file, there is a completed form of authority, authorising the claimant’s mother to act in relation to the appeal to the Social Security Commissioner, and signed by the claimant on 1 October 2009.

 

       The appeal tribunal’s conclusions with respect to entitlement to DLA

 

19.   As was noted above, 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.  An application to the Social Security Commissioner for leave to appeal requires the appellant to identify the grounds or basis on which it is submitted the decision of the appeal tribunal is in error of law.  Having considered the application made by the applicant, and the grounds set out in the application, I am satisfied that no error of law can be identified.

 

20.   More particularly, it is clear that the appeal tribunal undertook a rigorous and rational assessment of all of the evidence before it.  The appeal tribunal gave 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 has been clearly resolved and explained.

 

21.   The appeal tribunal made sufficient findings of fact, relevant to its decision, all of which are wholly sustainable on the evidence, and all of which are supported by relevant evidence.  None of the appeal tribunal’s findings are irrational, perverse or immaterial.

 

22.   The appeal tribunal applied the correct standard of proof, ie on the balance of probabilities, having no power to apply any other standard.  All issues raised by the appeal, either expressly or apparent from the evidence were fully examined by the appeal tribunal in conformity with its inquisitorial role.  The appeal tribunal’s application of the applicable legal rules and principles was wholly accurate.

 

23.   The proceedings of the appeal tribunal were conducted in accordance with the principles of natural justice, and its decision is reflective of an apposite consideration of, and adherence to, such principles.  Read as a whole, the statement of reasons for the appeal tribunal’s decision provides a detailed explanation of the basis on which the appeal tribunal arrived at its conclusions on the issues before it.

 

24.   The appellant’s application for leave to appeal to the Social Security Commissioner amounts to a further submission on factual issues rather than questions of law.  It is clear that an appeal on a question of law should not be permitted to become a re-hearing or further assessment of the evidence, when that assessment has already been fully and thoroughly undertaken.  It is important to note that the assessment of evidence is a matter for the appeal tribunal, and a Social Security Commissioner must be wary of interfering with the conclusions of an appeal tribunal based on its evidential assessment.

 

25.   The claimant’s mother may well disagree with the appeal tribunal’s assessment of the evidence which was before it.  In Quinn v Department for Social Development ([2004] NICA 22), the Court of Appeal emphasised that assessment of evidence and fact-finding role is one for the appeal tribunal.  At paragraph 29, the court stated:

 

‘It is clear that the Tribunal considered Dr Manley’s report since they refer to it in their findings and describe it as being less than helpful.  The challenge to the Tribunal’s attitude to the report cannot proceed on the basis that they ignored it; rather it must be either that they misconstrued it or they failed to give it sufficient weight.  As to the latter of these two possibilities it is of course to be remembered that a view of the facts reached by a tribunal can only be interfered with by the Court of Appeal in limited and well-defined circumstances.

 

Carswell LCJ described those circumstances in Chief Constable of the RUC v Sergeant A [2000] NI 261 at 273f as follows: -

 

“A tribunal is entitled to draw its own inferences and reach its own conclusions, and however profoundly the appellate court may disagree with its view of the facts it will not upset its conclusions unless—

 

(a) there is no or no sufficient evidence to found them, which may occur when the inference or conclusion is based not on any facts but on speculation by the tribunal (Fire Brigades Union v Fraser [1998] IRLR 697 at 699, per Lord Sutherland); or

 

(b) the primary facts do not justify the inference or conclusion drawn but lead irresistibly to the opposite conclusion, so that the conclusion reached may be regarded as perverse: Edwards (Inspector of Taxes) v Bairstow [1956] AC 14, per Viscount Simonds at 29 and Lord Radcliffe at 36.”’

 

26.   At paragraph 4 of R(DLA) 3/04, Mrs Commissioner Brown had made similar remarks:

 

‘I should state at the outset that the weight to be given to any evidence is completely a matter for the Tribunal.  The weight to be given to an item of evidence is a matter of fact.  That means that I can disturb it only if that conclusion as to weight is one which no reasonable Tribunal could have reached.  Having examined Dr M...’s report I do not consider that the Tribunal’s conclusions as to the weight to be given to it are such as no reasonable Tribunal could have reached.’

 

       Disposal

 

27.   The decision of the appeal tribunal dated 6 March 2009 is not in error of law.  Accordingly, the appeal to the Social Security Commissioner does not succeed.  The decision of the appeal tribunal to the effect that the claimant is not entitled to either component of DLA, from and including 1 February 2008, is confirmed.

 

 

(signed):  K Mullan

 

Commissioner

 

 

 

14 February 2011