BMcD-vDepartment for Social Development (DLA) [2011] NICOM 148

Decision No:  C90/10-11(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 4 August 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.  I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.  The decision of the appeal tribunal dated 4 August 2009 is in error of law.  The error of law identified will be explained in more detail below.  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.

 

2.    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.

 

3.    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.

 

4.    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

 

5.    On 13 March 2009 a decision-maker of the Department decided that the appellant was not entitled to DLA from and including 24 July 2009, on a renewal claim.  There had been previous fixed period awards of entitlement to DLA.  Following a telephone call to that effect, the decision dated 13 March 2009 was reconsidered on 31 March 2009 but was not changed.  An appeal against the decision dated 13 March 2009 was received in the Department on 30 April 2009.

 

6.    The substantive appeal tribunal hearing took place on 4 August 2009.  The appellant was present.  There was no Departmental presenting officer present.  The appeal tribunal disallowed the appeal and confirmed the decision dated 13 March 2009.

 

7.    On 7 October 2009 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.  On 19 February 2010 the application for leave to appeal was refused by the legally qualified panel member.

 

       Proceedings before the Social Security Commissioner

 

8.    On 22 March 2010 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 12 May 2010 observations were sought from Decision Making Services (DMS) and these were received on 9 June 2010.  DMS opposed the application on the grounds submitted by the appellant but supported the application on two other grounds.  Observations were shared with the appellant on 15 June 2010.  On 11 August 2010 further correspondence was received from the appellant.

 

       Errors of law

 

9.    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.

 

10.   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

 

11.   In written observations on the application for leave to appeal, Mr Hinton, for DMS, has submitted that:

 

‘… I would submit that for the following reasons the Tribunal has in fact erred in law.

 

Night time needs

 

As I have previously stated the record of proceedings shows that (the claimant) attended the hearing and also gave oral evidence at the hearing.  At paragraph 4 of the record of proceedings (the claimant) indicated that when drinking he would have problems with urinary incontinence at night.  At paragraph 4 of page 1 of the reasons for decision the tribunal noted:

 

“Regarding night time care in his DLA1A form he needed help with care needs and someone to watch over him although on expanding on this it would only be when drunk.  In his direct evidence he said he had no one to call at night and there have been times when he would just wet the bed and continue to lie in it.  The tests for night time care is the appellant requires prolonged or repeated attention from another person in connection with his bodily functions or that he requires another person to be awake for a prolonged period or at frequent intervals to watch over him to avoid substantial danger to himself or others.  The tribunal acknowledge that on occasions the appellant may wet the bed at night when drunk but do not accept that on most occasions during the night he cannot deal himself with aspects of care.  Again the tribunal are entitled to take into consideration the General Practitioner’s comments that the appellant can care for himself and there is no reason why this cannot be extended to night time care.  In his own evidence the appellant said he can manage when he gets drunk though sometimes he would wet himself.  This falls well short of the requirement of prolonged or repeated attention.”

 

In the above the tribunal is clearly accepting that on occasions (the claimant) could need help at night due to his alcohol problems.  However the tribunal then proceed to state that it found that this was not the case on the most occasions.  It could well be that the tribunal have based its conclusions as to the frequency and pattern of (the claimant’s) night time needs upon his evidence to it at the hearing.  However in view of (the claimant’s) comments regarding just lying in a wet bed there was I submit an onus upon the tribunal to consider if he required help or attention even if he did not actually receive it.  In addition I would submit that the tribunal should have explained how it concluded that this help was not on most occasions.  Once the tribunal had explained how it reached this conclusion then there was I submit no onus upon it to consider if the night time needs were repeated or prolonged.  It is my submission that the reasons for decision are inadequate and the tribunal has erred in law.

 

Main Meal Test

 

At page 23 of the self assessment forms (Tab no 1 of the scheduled documents) (the claimant) indicated that he would lack the motivation to prepare a cooked main meal.  In addition in his oral evidence to the tribunal (the claimant) stated that he would lack the motivation to cook (paragraph 4 of the record of proceedings reproduced at the previous point above).  It is clear from that evidence that (the claimant) was indicating that his problems with preparing a cooked main meal stemmed from a lack of motivation rather than any physical problems.  In the final paragraph of page 2 of the reasons for decision the tribunal stated:

 

“Regarding low rate (main meal) the appellant said he just had no appetite and lacks motivation.  He did say that he sometimes would microwave burgers and do these at home.  There is no evidence whatsoever before the tribunal to suggest that there isn’t any physical reason why the appellant cannot prepare and cook a main meal for himself.  In his DLA1A form he says he has a low appetite and most times would have to be told to eat.  Even if this was the case it is not sufficient to satisfy the main meal test which is that he cannot prepare and cook a main meal for himself.  Again taking into consideration the doctors comments that he can self care the tribunal do not accept that this test is satisfied.”

 

It is I submit clear from the above that the tribunal concluded that (the claimant) lacks motivation to prepare a cooked main meal.  However whilst the tribunal was entitled to conclude that (the claimant) could physically prepare a main meal it should have addressed the issue of whether the lack of motivation prevented him from doing so and its failure to do so renders the decision erroneous in law.  Alternatively, I submit that if the tribunal did not accept that the lack of motivation prevented (the claimant) from preparing a main meal it has failed to give adequate reasons for reaching its decision.’

 

12.   I am in agreement with Mr Kirk that the decision of the appeal tribunal is in error of law on the basis of grounds submitted by him.  The appeal tribunal has identified many of the issues requiring to be considered in assessing whether the appellant satisfied the conditions of entitlement to DLA.  It has not, however, properly and fully assessed the submitted attention and/or supervision needs at night nor addressed, in sufficient detail, the issue of the appellant’s motivation to prepare a cooked main meal for himself and, accordingly, whether the conditions of entitlement to the lowest rate of the care component of DLA were satisfied.

 

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

 

13.   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.

 

       Disposal

 

14.   The decision of the appeal tribunal dated 4 August 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.

 

15.   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 13 March 2009 in which a decision-maker of the Department decided that the appellant was not entitled to DLA from and including 24 July 2009;

 

(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)       the appeal tribunal will derive guidance on the relevance of encouragement, motivation and support from the decisions of the Tribunal of Commissioners in Great Britain in R(DLA) 1/07, the decision of the Chief Commissioners in C46/96(DLA) and C12/99(DLA) and by Commissioner Brown in C10/00-01;

 

(iv)       in C40/10-11(DLA), it was confirmed that the proper approach to section 72 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, was as set out in R(DLA) 5/05 and Moyna v Secretary of State for Work and Pensions [2003] UKHL 44, [2003] 1 WLR 1929, and involves, after consideration of the relevant period, taking a ‘broad’ or ‘common sense’ view;

 

(v)        the appeal tribunal will derive guidance on the issue of entitlement to DLA based on alcoholism in the decision of the Tribunal of Commissioners in Great Britain in R(DLA) 6/06, approved in this jurisdiction by Commissioner Brown in C4/06-07(DLA);

 

(vi)       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

 

(vii)      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

 

 

 

14 February 2011