Department for Social Development (DLA) [2011] NICom 170

Decision No:  C2/11-12(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 2 April 2010

 

 

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 is in error of law.  The error is a minor one, however, and involves the manner in which the decision notices for the decision of the appeal tribunal dated 2 April 2010 have been completed.

 

2. 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.  I am able, however, to exercise the power conferred on me by Article 15(8)(a)(i) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given as I can do so without making fresh or further findings of fact.

 

3. Accordingly, although the appeal to the Social Security Commissioner succeeds the decision of the appeal tribunal to the effect that

 

(i) the decision-maker, on 16 October 2009, had grounds to supersede the decision dated 12 February 2006; and

 

(ii) the appellant is not entitled to either component of disability living allowance (DLA), from and including 16 October 2009;

 

is confirmed.

 

Background

 

4. On 12 February 1996 an adjudication officer (as was the title then given to such an officer) decided that the appellant was entitled to the lowest rate of the care component of DLA from and including 17 November 1995.  On 3 April 2009 a periodic enquiry form was received from the appellant in the Department.  On 7 October 2009 the appellant was examined by an examining medical practitioner (EMP).  On 16 October 2009 a decision-maker of the Department decided that:

 

(i) there were grounds to supersede the decision dated 12 February 2006; and

 

(ii) the appellant was not entitled to either component of DLA from and including 16 October 2009.

 

5. On 16 November 2009 a letter of appeal against the decision dated 16 October 2009 was received in the Department.  On 30 November 2009 further information was received in the Department from the appellant.

 

6. The appeal tribunal hearing took place on 2 April 2010.  The appellant was not present.  The appellant had indicated in correspondence to the Appeals Service (TAS) that she was unable to attend the oral hearing of the appeal and in which she gave her consent to the appeal tribunal proceeding in her absence.  At the oral hearing of the appeal the Department was represented by a Departmental presenting officer.  The appeal tribunal disallowed the appeal and confirmed the decision of the Department that the appellant was not entitled to either component of DLA from and including 16 October 2009.

 

7. On 1 August 2010 an application for leave to appeal to the Social Security Commissioner was received in TAS.  On 19 August 2010 the application for leave to appeal was refused by the legally qualified panel member (LQPM).

 

Proceedings before the Social Security Commissioner

 

8. On 24 September 2010 a further application for leave to appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners.  On 10 November 2010 written observations on the application for leave to appeal were sought from Decision Making Services (DMS) and the written observations were received on 26 November 2010.  DMS opposed the application for leave to appeal on all of the grounds cited by the appellant.  The written observations were shared with the appellant on 7 December 2010.

 

Analysis

 

9. The LQPM completed two decision notices in respect of the separate decisions with respect to the care and mobility components of DLA.  The decision notice with respect to the care component reads as follows:

 

‘Appeal disallowed

 

(The claimant) is not entitled to the care component of DLA from and including 16 October 2009.

 

The Department had grounds to supersede the decision of 12 Feb 1996 awarding the lowest rate care component.’

 

The decision notice with respect to the mobility component reads as follows:

 

‘Appeal disallowed

 

(The claimant) is not entitled to the mobility component of DLA from and including 16 Oct 2009.

 

There are no grounds to supersede the decision of February 1996 disallowing the mobility component.’

 

10. The difficulty with the formulation of the decision notices is as follows.  In considering the issue of whether the Department had grounds to supersede, an appeal tribunal should note the remarks of Mrs Commissioner Brown, at paragraph 7, of the decision in C14/04-05(DLA) that DLA is a composite benefit.  This means that the appeal tribunal should be considering whether the Department had grounds to supersede one of its earlier decisions not individual components within that decision.  Either there were grounds to supersede the decision or there were not.  Where I think the appeal tribunal has gone wrong is that it has confused the separate questions of supersession and entitlement.  There can be no consideration of the entitlement question unless there has been a consideration of the supersession question.  In turn the entitlement question only becomes relevant where it has been established that there were grounds to supersede.  What the appeal tribunal wanted to find was that the appellant should continue to have no entitlement to the mobility component of DLA and should no longer have an entitlement to the care component.  It arrived at that conclusion without, in its decision notices, properly formulating the supersession issue.

 

11. It is clear, however, from consideration of the comprehensive, detailed and elucidated statements of reasons for the appeal tribunal’s decisions with respect to the care and mobility components of DLA that the appeal tribunal was well aware of the issues under appeal, including the supersession issue.  Having looked at those statements of reasons, 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.

 

12. 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.

 

13. 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.  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.  In particular, the appeal tribunal gave careful consideration to proceeding in the appellant’s absence and satisfied itself that it had sufficient evidence before it to determine the issues arising in the appeal.

 

14. 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.

 

15. The appellant has asserted that she had been in receipt of DLA for 16 years; that her health has deteriorated since she first appealed to the appeal tribunal; and that the appeal tribunal did not take account of her health problems.

 

16. Article 13(8)(b) of the Social Security (Northern Ireland) Order 1998 provides –

 

‘(8)  In deciding an appeal under this Article, an appeal tribunal –

 

(a)……….

 

(b)  shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.’

 

17. In C24/03-04(DLA), Commissioner Brown approved of the following statement of law set out in paragraph 9 of the decision of Commissioner Jacobs in R(DLA) 2/01):

 

‘….. In the case of a claim for a Disability Living Allowance, the jurisdiction {of an Appeal Tribunal} is limited to the inclusive period from the date of claim to the date of the decision under appeal.  The only evidence that is relevant is evidence that relates to the period over which the tribunal has jurisdiction.  However it is the time to which the evidence relates that is significant, not the date when the evidence was written or given.  It does not limit the tribunal to the evidence that was before the officer who made the decision.  It does not limit the tribunal to evidence that was in existence at that date.  If evidence is written or given after the date of the decision under appeal, the tribunal must determine the time to which it relates.  If it relates to the relevant period, it is admissible.  If it relates to a later time it is not admissible.’

 

18. Accordingly, the appeal tribunal was limited to taking account of evidence that was relative to the period over which it has jurisdiction under Article 12(8)(b).  The principles in R(DLA) 2/01 give an accurate summary of the relevant legal principles, and confirm why a submission regarding a deterioration in a medical condition, subsequent to the decision of the appeal tribunal, cannot succeed as a ground for applying for leave to appeal to the Social Security Commissioner.

 

19. If the submitted changes to her health, or other changes, are, in the view of the applicant, sufficient to affect her current lack of entitlement to DLA, she may wish to draw these to the attention of the Department who may wish to take appropriate decision-making action.

 

20. In CDLA/4032/2006, the Commissioner stated, at paragraph 11:

 

‘It is clear that the tribunal was aware that there had been at least one decision before the 2004 decision and there was material to show that the 2004 decision involved an increase in the award.  It followed inevitably that there was further evidence held by the Department of Work and Pensions on the basis of which the earlier award or (as in fact was the case) awards had been made.  The examining doctor on whose evidence the tribunal relied said that the claimant’s conditions were longstanding and unlikely to improve.  In the absence of knowledge on the part of the tribunal what that further, earlier evidence was, it was practically speaking impossible for the tribunal to explain to the claimant why an award which she had had to some degree (the precise nature of which was unknown to the tribunal) for more than five years was being taken away.  To the extent that the tribunal attempted that task, it did so only in relation to the 2004 award, so its reasons were necessarily inadequate.  The tribunal therefore erred in law.’

 

21. There is additional authority on the extent of the duty of an appeal tribunal, when considering an appeal following a decision not to renew an entitlement to a social security benefit.

 

22. In R 3/04(DLA) (Quinn v Department for Social Development [2004] NICA 22), the claimant was in receipt of the highest rate of the care component and the higher rate of the mobility component of DLA for a fixed period.  Part of the evidence in respect of that award was the report of an examination by an EMP.  A renewal claim was disallowed by the Department and that decision was upheld by an appeal tribunal.  In turn, the decision of the appeal tribunal was upheld by the Social Security Commissioner.

 

23. Before the Court of Appeal, it was submitted that the appeal tribunal had failed to give any consideration to the first EMP report.  Since the appellant had been awarded DLA, on the first claim, and the medical evidence suggested that there had been no improvement in her condition the appeal tribunal ought to have taken account of the EMP report in relation to the first application.  The argument continued that, in turn, the Social Security Commissioner should have recognised that the appeal tribunal had failed to have regard to the first report and ought to have reversed the appeal tribunal’s decision on that account.

 

24. The Court of Appeal dealt with the latter argument quickly holding that as the issue concerning the first EMP report had not been argued before the Social Security Commissioner, it would be quite unrealistic to expect the Commissioner to disinter an argument from relevant obscurity.  More obviously, however, the Court of Appeal held, at paragraph 35, that:

 

‘The ultimate disposal of this argument, however, is provided by the consideration that the first report could not have made any difference to the outcome of the appeal to the Tribunal.  The second request for DLA was a renewal application.  Each application must be treated anew.  The reason for this is clear.  The claimant for DLA must establish a level of disability at the time the application is made and for a period of six months after the benefit becomes payable.  It would avail the appellant nothing to show that in November 1997 she was considered to be sufficiently disabled to be entitled to the benefit.  She must show a contemporaneous disability of such severity that she was entitled to the benefit at the time of application and beyond.’

 

25. In relation to the appeal tribunal’s requirement to consider the first EMP report, the Court of Appeal, had the following to say, at paragraphs 39-42:

 

‘[39]  The final argument on this subject was that the Tribunal had failed to explain why it had concluded that the appellant no longer qualified for the benefit if her condition had not improved from that set out in the first EMP’s report; or if it concluded that the appellant’s condition had improved, on what basis it made that finding.

 

[40]  The requirement to give reasons where a Tribunal decides that a claimant for benefit is no longer entitled to a benefit of which he or she had been in receipt previously was considered by the Social Security Commissioner in R(M)1-96 CM/20/1994.  In that case the claimant had lost part of his right leg in an accident and had arthritis in his left hip and spine.  His renewal claim for mobility allowance in 1992 was rejected on the ground that he was neither unable, nor virtually unable, to walk.  The claimant contended that his walking ability had in fact got worse since he was originally awarded mobility allowance in 1991.  A disability appeal tribunal confirmed the rejection of his claim.  The claimant appealed to a Social Security Commissioner.  It was held that the fact of a previous award does not raise any presumption in the claimant’s favour or result in the need for consistency having to be treated as a separate issue on a renewal claim.  However, the requirement for a tribunal to give reasons for its decision means that it is necessary for a tribunal to explain why it is not renewing a previous award unless this is obvious from its findings.

 

[41]  We agree with this reasoning and intend to apply it to the present case.  Here the Tribunal has not explained why it is not following the course previously taken in making an award of DLA but, in our view, there was no need to do so.  The reason that the Tribunal refused DLA was that it had concluded that the appellant did not suffer from the level of disability that had to be present before the benefit was payable.  As the Court of Appeal said in Evans, Kitchen and Others v. Secretary of State, [now reported as R(I)5/94] a previous award carries no entitlement to preferential treatment on a renewal claim for a continuing condition.  In the R(M)1-96 case the Social Security Commissioner put the point in this way: -

 

“… on a renewal claim, which is a fresh claim for benefit for a period not covered by any previous award, there can be no question of the tribunal being bound to follow any previous decision awarding benefit for an earlier period, nor, in determining whether the conditions for benefit are satisfied on the facts as they find them to be at the date relevant for their decision, is any different standard to be applied according to whether benefit has or has not been awarded before: ex p. Viscusi, supra; CM/205/1988 components of the same benefit dealt with by the same tribunal paragraph 13 (not doubted on this point in the later cases).” (paragraph 13.4)

 

[42]  The Tribunal said that it had concluded that the appellant had full function of her upper arms and lower limbs and that she could attend to her bodily functions unaided and unsupervised day and night.  It also said that she could cook a main meal for herself and has no mobility needs.  This statement was sufficient to convey to the appellant why she was not going to receive the benefit.  Put simply, the Tribunal had concluded that she had exaggerated her condition and that she was not truly disabled.’

 

26. Applying those principles to the present case, it was clear that the appeal tribunal was aware that the appellant had previously been in receipt of DLA.  The statement of reasons for the appeal tribunal’s decision begins with a confirmation that the decision under appeal was a supersession decision and that the appellant had previously been awarded an entitlement to DLA.  Thereafter, and as was noted above, the appeal tribunal’s duty was to outline and explain to the appellant why she did not satisfy the conditions of entitlement to either component of DLA.  For all of the reasons outlined above, I have concluded that the statement of reasons was sufficient to ‘convey to the appellant why she was not going to receive the benefit’.  It was obvious from the appeal tribunal’s findings why the previous award was not being renewed.

 

27. The appellant’s final ground in her application for leave to appeal to the Social Security Commissioner, that the appeal tribunal did not give due consideration to her health, 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.

 

 

(signed):  K Mullan

 

Commissioner

 

 

 

10 May 2011