HMcL-v-Department for Social Development (DLA) [2011] NICom 158

 

Decision No:  C77/10-11(DLA)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

DISABILITY LIVING ALLOWANCE

 

 

Appeal to a Social Security Commissioner

on a question of law from a Tribunal's decision

dated 21 September 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 appeal can properly be determined without a hearing.

 

2.    The decision of the appeal tribunal dated 21 September 2009 is in error of law.  The error of law identified will be explained in more detail below.

 

3.    Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

 

4.    For further reasons set out below, I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given.  This is because there is detailed evidence relevant to the issues arising in the appeal, including medical evidence, to which I have not had access, and there may be further findings of fact which require to be made.  Further I do not consider it expedient to make such findings, at this stage of the proceedings.  Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.

 

5.    In referring the case to a differently constituted appeal tribunal for re-determination, I direct that the appeal tribunal takes into account the guidance set out below.

 

6.    It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of 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

 

7.    On 11 May 2009 a decision-maker of the Department decided that there were no grounds to supersede an earlier decision of the Department, dated 21 April 1997.  In the decision dated 21 April 1997, the adjudication officer had decided that the appellant was entitled to the higher rate of the mobility component and the lowest rate of the care component of DLA from and including 24 June 1997.  An appeal against the decision dated 11 May 2009 was received in the Department on 26 May 2009.

 

8.    The substantive appeal tribunal hearing took place on 4 August 2009.  The appellant was present and was accompanied by his daughter.  The appeal tribunal disallowed the appeal and confirmed the decision dated 11 May 2009.

 

9.    On 3 October 2009 an application for leave to appeal to the Social Security Commissioner was received in The Appeals Service (TAS).  On 19 February 2010 the application for leave to appeal was refused by the legally qualified panel member (LQPM).

 

Proceedings before the Social Security Commissioner

 

10.   On 26 April 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 3 September 2010 the late application was accepted for special reasons by the Chief Commissioner.

 

11.   Also on 3 September 2010 observations on the application were sought from Decision Making Services (DMS) and these were received on 9 June 2010.  DMS supported the application on an identified ground.  Observations were shared with the appellant, and his representative Miss Louise Kyne from the Citizens Advice Bureau, on 27 September 2010.  On 29 October 2010 written observations in reply were received from the appellant’s representative which were shared with DMS on 4 November 2010.  On 7 December 2010 leave to appeal was granted by the Chief Commissioner.  In granting leave to appeal, the Chief Commissioner gave, as a reason, that:

 

‘It is arguable that the decision was wrong in law, because the tribunal did not apply the correct test for entitlement to disability living allowance as laid down in sections 72 and 73 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 in that it failed to assess the claimant’s needs in line with these statutory provisions.’

 

Errors of law

 

12.   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.

 

13.   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?

 

14.   The statement of reasons for the appeal tribunal’s decision reads as follows:

 

‘The Tribunal considered all the oral and written evidence and submissions in order to decide whether at the date of decision, 11.05.2009 there were grounds to supersede a decision on 21.04.1997 awarding higher rate mobility component and lowest rate care component (main meal) from 24.06.1997.

 

(The claimant’s) date of birth is 10.07.1937.

 

Supersession

 

In order to change and supersede the decision of 21.04.1997, the Tribunal must find that there is a relevant change of circumstances which indicates that the current award is incorrect.  The Tribunal found that there was no such change in the period under consideration.  In 1997 (the claimant) suffered osteo-arthritis and renal colic.  His General Practitioner described significantly reduced mobility and the Examining Medical Practitioner described walking with a slow and shuffling gait.  The General Practitioner again confirmed arthritis in 2009.  There had been an episode of collapse in December 2008.  He attended the Mater Accident and Emergency but was not admitted (General Practitioner records).  These symptoms which arose in the context of taking part in a drugs trial, were fully investigated.  Dr Craig, Consultant Neurologist described the episode as not involving lost consciousness and concluded it was likely to be a faint.  In May 2009 Dr Todd, Consultant Chest Physician, found that the shortness of breath he developed after the episode had settled.  Asthma was diagnosed and he was started on Symbicort.  Dr Todd described a mild degree of airways narrowing.  There was no indication of any other medical condition developing in the period.

 

The episode of collapse was a “one-off” and asthma was mild.  There was no proven deterioration in his arthritis condition.  He takes codydramol and has had no further specialist referrals.  There was no deterioration or change which justified superseding the award in 1997.’

 

15.   The appeal tribunal clearly identified the decision under appeal which was the decision dated 11 May 2009.  The appeal tribunal also clearly identified the issue arising in the appeal before it, that is whether the decision-maker, on 11 May 2009, had grounds to supersede the earlier decision of the Department, dated 21 April 1997.  Where, therefore, did the appeal tribunal go wrong?

 

16.   One minor error was the conclusion by the appeal tribunal that ‘…In order to change and supersede the decision of 21.04.1997, the Tribunal must find that there is a relevant change of circumstances which indicates that the current award is incorrect.’  The legislative provisions which make provision for the supersession of decisions, and the date from which a supersession decision should take effect, namely Article 11 of the Social Security (Northern Ireland) Order 1998 and regulations 6 and 7 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, are complex.  There is a temptation to assume that the natural ground on which a supersession decision has been made is ‘change of circumstances’.  The cases and circumstances under which a decision may be superseded are more varied, however, and specific provisions have been included to deal with discrete situations.  The limitation of the supersession ground to ‘change of circumstances’ would not be enough to render the decision of the appeal tribunal as being in error of law if the appeal tribunal had gone on to properly and effectively reason that there had (or had not been) a relevant change of circumstances.  It is here that the appeal tribunal did go wrong.

 

17.   Reading the reasons for the appeal tribunal’s conclusions that there had not been a relevant change of circumstances, I am struck by the appeal tribunal’s emphasis on the appellant’s diagnosed medical conditions, as at the date of the original decision awarding entitlement to benefit, and as the date of the decision under appeal.  The appeal tribunal has set out the appellant’s diagnosed medical conditions as they existed in 1997, as they existed in 2009, has compared the different dates and concluded that there had been no change in medical conditions or any deterioration in existing medical conditions.  What is the problem with that?

 

18.   The meaning of the phrase ‘so severely disabled physically or mentally’ in sections 72 and 73 of the Social Security Contributions and Benefits Act 1992 in Great Britain (the equivalent of sections 72 and 73 of the Social Security Contributions and Benefits (Northern Ireland) Act, as amended) was considered by a Tribunal of Commissioners in R(DLA) 3/06.  At paragraphs 35 to 37, the tribunal stated:

 

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

 

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

 

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

 

19.   The key phrase in the extract cited above is ‘… entitlement to DLA is dependent upon a claimant’s inability to cope with care and mobility without assistance and with his consequent reasonable care and mobility needs; and not upon the diagnosis of any medical condition.’  In exploring the issue of whether there had been a relevant change of circumstances, sufficient to ground a supersession, the appeal tribunal, in the instant case, should have focused on whether there had been any change in the appellant’s care and mobility needs, rather than focusing on whether there had been a change in his diagnosed medical conditions.  In the self-assessment form, received in the Department on 25 March 2009, and which formed the basis of the application for a supersession, the appellant’s daughter submitted that there had been a deterioration in the appellant’s physical and emotional needs in the two years prior to the completion of the form.  The submission that there had been a change in the appellant’s needs in the period from 2007 was emphasised in other evidence made available as part of the application for a supersession.

 

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

 

20.   Having found that the decision of the appeal tribunal is in error of law on the basis of the failure to apply the principles in R(DLA) 3/06, I do not have to consider the appellant’s grounds for appealing to the Social Security Commissioner.  I have noted, however, that the appellant, in the original application for leave to appeal which was before the LQPM, had submitted that the appeal tribunal did not have access to x-rays and ‘notes’ which had been lost until finally received by the appellant on 29 September 2009.  The date of the appeal tribunal hearing was 21 September 2009, and the appeal tribunal cannot be faulted for not having considered evidence which was not made available until after the date of the appeal tribunal hearing.  I have also noted that the appellant’s representative has clarified this issue by submitting that the additional evidence had been hand-delivered to TAS in advance of the appeal tribunal hearing before being returned to Belfast City Hospital, in error.  The appellant, and his representative, may wish to have this evidence before the differently constituted appeal tribunal which is to re-hear this appeal.  If that is the case, then the appellant and his representative will wish to ensure that such evidence is made available.

 

Disposal

 

21.   The decision of the appeal tribunal dated 21 September 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.

 

22.   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 11 May 2009, in which a decision-maker of the Department decided that there were no grounds to supersede an earlier decision of the Department, dated 21 April 1997.  In the decision dated 21 April 1997, the adjudication officer had decided that the appellant was entitled to the higher rate of the mobility component and the lowest rate of the care component of DLA from and including 24 June 1997;

 

       (ii)    the appeal tribunal will wish to note that the application for a supersession of the decision dated 21 April 1997 was made after the appellant’s sixty-fifth birthday.  Further, the award of entitlement to DLA, made on 21 April 1997, was prior to the appellant’s sixty-fifth birthday.  The legislative provisions governing revisions and supersessions of decisions in these factual circumstances are complex, and are to be found in section 75 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, and regulation 3 and Schedule 1 of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992, as amended;

 

       (iii)    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);

 

       (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):  Kenneth Mullan

 

Commissioner

 

 

 

14 March 2011