JR v Department for Social Development (DLA) [2011] NICom 152

Decision No:  C94/10-11(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 16 December 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 16 December 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.

 

3.    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.

 

4.    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.

 

5.    It is imperative that the claimant 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

 

6.    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.

 

7.    On 15 April 2009 an application for DLA was received in the Department. The application was signed by the claimant’s mother. On 21 May 2009, and following receipt of additional information, a decision-maker of the Department decided that the claimant was not entitled to DLA from and including 28 June 2009. Following receipt of additional information from the claimant’s mother, the decision dated 21 May 2009 was reconsidered on 24 June 2009 but was not changed. An appeal against the decision dated 21 May 2009 was received in the Department on 6 August 2009. The letter of appeal was signed by the claimant’s mother.

 

8.    The appeal tribunal hearing took place on 16 December 2009. The claimant was not present but her mother was. The Department was represented by a Departmental presenting officer. The appeal tribunal disallowed the appeal and confirmed the decision dated 21 May 2009.

 

9.    On 26 February 2010 an application for leave to appeal against the decision of the appeal tribunal was received in the Appeals Service. On 9 March 2010 the application for leave to appeal was refused by the legally qualified panel member.

 

Proceedings before the Social Security Commissioner

 

10.  On 12 April 2010 a further application for leave to appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners. On 26 July 2010 observations were sought from Decision Making Services (DMS) and these were received on 6 August 2010. DMS supported the application on several of the grounds set out in the application. DMS also provided detailed observations on the appointee issue. Observations were shared with the applicant on 7 September 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 the instant case in error of law?

 

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,

 

the 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 claimant’s date of birth is 28 June 1993. At the date of the receipt of the renewal claim to DLA, that is 15 April 2009, the claimant was under the age of 16 and would have required a regulation 43 appointment to manage her claim. In fact, the claimant’s mother was her appointee for the purposes of regulation 43, up to her sixteenth birthday. The Department, on 29 April 2009, issued Form DLA 222 to the claimant’s mother, seeking information as to whether the claimant would be able to manage her own affairs after her sixteenth birthday. The claimant’s mother completed Form DLA 222 on 15 May 2009 indicating that the claimant would not be capable of managing her own affairs after her sixteenth birthday. The claimant’s mother also completed a Form BF 56 thereby making an application to be made an appointee of the claimant after her sixteenth birthday. That would have been a regulation 33 appointment. We now know that on 21 May 2009, the Department advised the claimant’s mother that she was not to be made a regulation 33 appointee for her daughter as the Department had determined that the claimant was capable of managing her own affairs.

 

16.  How did this affect the validity of the appeal to the appeal tribunal, the appeal tribunal proceedings and the applications for leave to appeal to the Social Security Commissioner? In the written observations on the application, Mr Hinton, for DMS, has submitted that:

 

‘… any appeal against the Department’s decision would have to be made by (the claimant) herself or by a person appointed under regulation 33.  However, in this case the appeal was not made in (the claimant’s) own name and the letter was signed by (the claimant’s mother) who was not appointed under regulation 33 to act on (the claimant’s) behalf.   Therefore, it could be argued that for this reason the appeal is invalid.  I would however refer to tabbed document ‘B’, form AT37, which is a form of notification of an appeal by the Department to the Appeals Service (TAS).  On this form the Department accepted the appeal as duly made.   Furthermore in paragraph 5 of section 4 of the Department’s submission the Department stated that (the claimant’s mother) was appointed to act on behalf of (the claimant).  Consequently I would argue that the Department accepted the validity of the letter of appeal signed by (the claimant’s mother) and that as a result of this she probably formed the impression that she was (the claimant’s) appointee.  Therefore, in the interests of fairness I would contend that appeal and subsequent proceedings be accepted as valid.  In unreported decision C30/08-09(DLA) Commissioner Mullan dealt with similar issues and at paragraphs 52 and 53 he 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…. 

 

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.”

 

I would further point to the fact that subsequent to the tribunal hearing all correspondence to TAS has been addressed solely to (the claimant’s mother) which would have indicated to her that she was legally appointed to deal with her daughter’s claim.  This would include her leave to appeal application to the Legally Qualified Member and her subsequent application to the Commissioner.  Furthermore form COMM12 which is the determination of the Legally Qualified Member on the application for leave to appeal shows the applicant as (the claimant’s mother) (Appointee).  Consequently I would contend that the letter of appeal, leave to appeal to the LQM and subsequently to the Commissioner are validly made.’

 

17. I would agree with the submission which has been made by Mr Hinton, and I hold that the appeal to the appeal tribunal was validly made. Further, 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.

 

The main meal test

 

18.  In the application for leave to appeal to the Social Security Commissioner, one of the grounds on which it was submitted that the decision of the appeal tribunal was in error of law was on the basis of the manner in which it addressed the issue of the claimant’s ability to prepare a cooked main meal for herself, in connection with the appeal tribunal’s assessment as to whether the conditions of entitlement to the lowest rate of the care component of DLA were satisfied. In connection with this ground, Mr Hinton, for DMS, has noted that the claim form which was completed in connection with the claim to DLA was a claim form for those aged under sixteen. The claim form did not seek information about the applicant’s ability to prepare a cooked main meal, as for the purposes of section 72(1A) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, there can be no entitlement for those aged under sixteen on the basis of inability to prepare a cooked main meal. Mr Hinton noted that the claimant was not present at the oral hearing of the appeal. The claimant’s mother, who was present, was asked questions concerning the claimant’s ability to prepare a cooked main meal. Mr Hinton submitted that:

 

‘… I would contend that (the claimant’s mother) was put in an unfair position at the hearing.  (The claimant’s mother) would not have been aware that the main meal test was going to be discussed because it would not have applied on her daughter’s self assessment form.  Therefore she would not have been aware of the functions involved in this test and as she was unrepresented was not in a position to seek advice regarding the best way forward here.  Consequently in the interests of fairness I would contend the onus was on the tribunal to adjourn the hearing in order for (the claimant’s mother) to seek further advice regarding the main meal test.  I would contend the tribunal’s failure to do this renders its decision erroneous in law.’

 

19.  I am of the view that the question of whether the appeal tribunal should have adjourned to enable the claimant’s mother to seek further advice in connection with the main meal test is marginal. I am of the view, however, that the appeal tribunal’s enabling role included the requirement to ensure that the claimant’s mother was aware of the significance of the questions in connection with the preparation of a cooked main meal, given that this was the first occasion on which the issue would have been raised with her. That could have included an explanation, in terms which were readily comprehensible, of the legislative requirements relating to entitlement to DLA, including the specific legislative test for entitlement to the lowest rate of the care component of DLA, based on an inability to prepare a cooked main meal. On that basis, the claimant’s mother might have concluded that she required further advice in connection with that specific issue, and might have raised the issue of an adjournment. A detailed explanation might have been sufficient for the issue to have been dealt with satisfactorily at the appeal tribunal hearing.

 

 The contended evidence concerning assistance with bedtime needs

 

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

 

‘… in the self assessment form (page11) (the claimant’s mother) did state that it took her daughter a long time to settle and has to be told frequently to try and settle down.  She also stated that in the morning (the claimant) is frequently tired and cross which would affect her concentration at school.  She stated that (the claimant) requires help 5 days per week, twice per day and that it takes roughly 20 to 30 minutes for her to get out of bed or into bed.  On page 24 of the same form (the claimant’s mother) also stated that when in bed (the claimant) still finds it hard to settle and on some nights has very unsettled sleep.  She stated that (the claimant) requires help 5 nights per week.

 

I would contend that as this evidence was before the tribunal it had a duty to explore (the claimant’s mother’s) contentions regarding the frequency of attention in connection with (the claimant’s) bedtime needs.  I would contend the evidence presented could have suggested possible entitlement.  However nowhere in the statement of reasons is there any suggestion that the tribunal considered this evidence or addressed the issues arising from it.  Consequently I would contend that the tribunal has failed in its inquisitorial role and has erred in law in this regard.’

 

21.  I would agree with Mr Hinton that the appeal tribunal was obliged to address the specific issue of bedtime needs. In the application form for DLA, the claimant’s mother was very specific about the attention and/or supervision needs which she submitted were reasonably required buy her daughter. Thus, for example, she stated that her daughter had no requirement for assistance with toileting. She did, as was identified by Mr Hinton, submit that there was a requirement for attention in connection with getting in and out of bed. The appeal tribunal was under a duty to assess whether such attention was reasonably required, in light of all of the evidence which was before it.

 

The evidence submitted by the claimant’s mother

 

22.  In the record of proceedings for the appeal tribunal hearing, it is recorded that the appeal tribunal had before it a letter from the claimant’s general practitioner (GP), dated 15 December 2009, and a letter from a consultant paediatric cardiologist, dated 8 April 2009. There is no further reference to this evidence in the statement of reasons for the appeal tribunal’s decision. 

 

23.  It is clear that the claimant’s mother submitted the additional medical evidence in support of the submissions which she was making in connection with her daughter’s entitlement to DLA. 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.

 

24.   In R2/04(DLA) a Tribunal of Commissioners, stated, at paragraph 22(5):

 

       ‘ … there will be cases where the medical evidence before a particular tribunal will be unsatisfactory or deficient in an important respect. It will often be open to the tribunal hearing such a case to reject the medical evidence for that reason. Indeed, it will sometimes be its duty to do so. However, and in either case, the tribunal cannot simply ignore medical evidence which is not obviously irrelevant. It must acknowledge its existence and explain its reasons for rejecting it, even if, as will often be appropriate, such reasons are fairly short. We repeat, the decision whether a person suffers from a particular medical condition is a matter for the tribunal. That body must have regard to the whole of the evidence, including the medical evidence. Where it rejects medical evidence it must, unless the reasons are otherwise apparent, explain why it does so. Anything less is likely to result in an appeal being brought on the grounds that the tribunal has not given adequate reasons or that its decision is against the weight of the evidence.’

 

25.  In its statement of reasons the appeal tribunal has made no reference to the medical evidence provided by the claimant’s mother, in the form of the medical report from the GP from a consultant paediatric cardiologist. The statement of reasons gives no indication as to how that medical evidence was assessed and whether or not it was accepted or rejected.

 

The GP records

 

26.  The record of proceedings for the appeal tribunal hearing records the following:

 

‘The General Practitioner notes were available. The claimant’s mother is not able to read them as she is not the Appointee and the claimant is not present. Ms Adair and the Tribunal read the notes.’

 

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

 

‘The tribunal did not accept (the claimant’s mother) as the appointee; therefore she was not afforded the opportunity of viewing the GP notes.  I would contend however that in light of the evidence (the claimant’s mother) presented at the hearing it could be argued that she should have been accorded the status of a representative; consequently it is my contention that the hearing should have been adjourned in order for (the claimant’s mother) to obtain her daughter’s permission to see the GP notes.  I would contend that the failure of the tribunal to do this renders its decision erroneous in law.’

 

28.  I would agree that there is, at first glance, an appearance of unfairness where the appeal tribunal and the Department, the latter as a party to the proceedings, were able to consider evidence which might be relevant to the issues arising in the appeal, and the claimant’s mother was unable to have sight of that evidence. It is unclear, from the record of proceedings, whether the appeal tribunal explained to the claimant’s mother the reasons why access to the GP records was being denied to her, or whether the claimant’s mother was given any explanation of the possibility of her seeking the status of representative from her daughter. I am of the view that the appeal tribunal could have done more to explain, (or set out any given explanation) why the claimant’s mother could not have had access to the GP records, and of her right to become her daughter’s representative, and seek access through that route. I would note that while the failure so to do does or does not render the decision of the appeal tribunal in error of law is not wholly material, given the other errors identified above, the enabling role of the appeal tribunal required, in my view, further action on the part of the appeal tribunal.        

 

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

 

29.  Having found that the decision of the appeal tribunal was 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

 

30.  The decision of the appeal tribunal dated 16 December 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.

 

31.  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 21 May 2009, and following receipt of additional information, a decision-maker of the Department decided that the claimant was not entitled to DLA from and including 28 June 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 claimant’s mother should, if she continues to represent her daughter, make an application for a formal appointment under regulation 33 of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987, as amended, or seek formal authorisation to act as her daughter’s representative and notify same to the Department

 

(iv)      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

 

(v)       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

 

 

 

22 February 2011