AH-v-Department for Social Development (DLA) [2011] NICom 202

Decision No:  C72/10-11(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 25 November 2009

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1. Having considered the circumstances of the case I am satisfied that the appeal can properly be determined without a hearing.  The decision of the appeal tribunal dated 25 November 2009 is in error of law.  The error of law identified will be explained in more detail below.

 

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.

 

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.  An appeal tribunal which has a medically qualified panel member is best placed to assess medical evidence and address medical issues arising in an appeal.  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 appellant notes that while the decision of the appeal tribunal has been set aside, the issue of 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. In this decision, the appellant is the mother of a child in respect of whom she made a claim to DLA, received in the Department on 2 December 2008.  On 4 March 2009 a decision-maker of the Department decided that there should be no entitlement to DLA from and including 2 December 2008.  Following the appointment of the appellant to act on behalf of her child, the disputing of the decision dated 4 March 2009, and the obtaining of further information, the decision dated 4 March 2009 was reconsidered on 23 April 2009 but was not changed.  A letter of appeal against the decision dated 4 March 2009 was received in the Department on 20 June 2009.

 

7. Following an adjournment of an appeal tribunal hearing in order to obtain the correct general practitioner records, the appeal was listed for hearing on 25 November 2009 as a ‘paper’ case.  The appeal tribunal disallowed the appeal and confirmed the decision of the Department dated 4 March 2009.  On 18 December 2009 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.  On 22 February 2010 the application for leave to appeal was refused by the legally qualified panel member.

 

Proceedings before the Social Security Commissioner

 

8. On 4 May 2010 a further application for leave to appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners (OSSC).  On 17 June 2010 observations on the application for leave to appeal were sought from Decision Making Services (DMS) and these were received on 5 July 2010.  In these written observations, Mr Kirk, for DMS, supported the application for leave to appeal.  The written observations were shared with the appellant on 15 July 2010.  On 6 September 2010 the late application was accepted for special reasons by the Chief Social Security Commissioner.  On 19 November 2010 the Chief Commissioner granted leave to appeal.  In granting leave to appeal, the Chief Commissioner gave, as a reason, that it was arguable that the decision was wrong in law, because the tribunal, whilst considering the claimant’s eligibility for DLA, failed to consider if the claimant had any needs when his condition was not controlled by medication.  On 23 December 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.”

 

Was the decision of the appeal tribunal in the instant case in error of law?

 

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

 

‘The documents considered by the tribunal dated 25 November 2009 are listed in the record of proceedings as consisting of the scheduled papers and the General Practitioner notes and records.  I also note that in the reasons for its decision in relation to the care component the tribunal make reference to the evidence it considered which included “various reports received”.  These appear to refer to letters from Dr N……. dated 10 November 2009 one which was addressed to Dr H……….. and the other to (the claimant’s mother).  At paragraph 2 of the letter to (the claimant’s mother) Dr N……. stated:

 

“His ADHD is controlled, to a point, on concerta XL, 36 mgs in the morning.”

 

Dr N………. appears to suggest that (the claimant’s) medication controlled his ADHD to a certain point, however he does not elaborate as to what happens when the medication wears off.  Whilst the tribunal has given detailed reasons as to why it believes (the claimant) is not entitled to any component of DLA, it does not appear to have considered or investigated if (the claimant’s) behaviour changed when his condition was not controlled by his medication and if there were any needs/supervision required ‘post medication’ and in failing to do so it has not fulfilled its inquisitorial role.

 

In unreported decision C37/09-10(DLA) Commissioner Mullan reviewed various authorities on the inquisitorial role of tribunals and at paragraphs 30 to 35 stated:

 

“30. The traditional view of the appeal tribunal’s inquisitorial role is related to the duty, as was noted at paragraph 26 of the decision in R(IS) 17/04, and following a review of all of the relevant authorities, ‘to ascertain and determine the true amount of social security benefit to which the claimant was properly entitled’.  In C15/08-09(DLA), I determined that this aspect of the inquisitorial role included a requirement to undertake a full investigation of the validity of an existing award and determine whether that award is correct.  In making that determination, I disagreed with the views of Commissioner Rowland in CDLA/884/2008, who had stated that an appeal tribunal is at liberty to draw any doubts about the validity of the decision to the Department’s attention in the decision notice and can arrange for the parties to be sent a copy of the record of proceedings without them having to request it, such action permitting the Department to consider a supersession or revision.

 

31. The inquisitorial role has been interpreted in another way, however, as including the requirement for the appeal tribunal to provide support to the parties to the proceedings in order to ensure full participation in the appeal process to the fullest possible extent and to enable the parties to present all aspects of their case as fully and completely as possible.  In this context, the inquisitorial role is sometimes called the ‘enabling’ role.

 

32. In my view, the enabling role takes on its greatest significance in the following situations:

 

(1) oral appeals where the appellant is unrepresented, and where the Department may be represented;

 

(ii) oral appeals where the appellant is unrepresented and does not make an appearance, and where the Department may be represented; and

 

(iii) paper cases where the appellant is unrepresented.

 

33. In these situations, and in a balanced and objective way, the appeal tribunal is under a duty to explore all of the relevant issues, and assess the evidence linked to those relevant issues, even where some or all of those issues have not been raised by the appellant.  Further, the appeal tribunal is under a duty to note, in any statement of reasons (SORs) for the appeal tribunal’s decisions, that it has addressed all relevant issues, assessed the evidence linked to those issues, found facts with respect to those issues and made an appropriate decision, related to entitlement to the benefit at issue.

 

34. Balance also means that the appeal tribunal does not require, as was noted by Mrs Commissioner Brown in C5/03-04(IB), at paragraph 21 "to exhaustively trawl the evidence to see if there is any remote possibility of an issue being raised by it."  It is often the case, however, that unrepresented claimants to social security benefits do not understand the subtleties of the conditions of entitlement to that benefit.  In any claim to a disability benefit, or appeal against an adverse Departmental decision with respect to that claim, the claim or appeal is often couched in general assertions with respect to the disability, and may not be specifically related to the conditions of entitlement as understood by the decision-maker or appeal tribunal.

 

35. Accordingly, the appeal tribunal must be alert to the objective consideration of specific issues even though these may not have been raised by the appellant.  The appeal tribunal will have to go beyond the detail, however general, of the appeal letter, and consider all of the evidence before it, which will usually include evidence relating to the initial claim to the benefit, and determine all issues which are relevant to the appeal. “

 

In the present case there is nothing in the reasons for the tribunal’s decision to indicate that it considered if (the claimant) had any needs when his condition was not controlled by the medication.  It is therefore my submission that the tribunal has failed in its inquisitorial role and as such has erred in law.’

 

12. I agree with this submission made by Mr Kirk.  In my view, the appeal tribunal has concentrated on the control given to the effects of the appellant’s medical condition by the medication which he receives.  Equally though, it was under a duty, in light of the available evidence to consider the degree and nature of that control and whether there were fluctuations based on an absence of control.  Accordingly, and with some reluctance given the appeal tribunal’s careful and judicious management of the other aspects of the appeal, and its circumspectly prepared statement of reasons, I find that the decision of the appeal tribunal is in error of law.

 

Disposal

 

13. The decision of the appeal tribunal dated 25 November 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.  I refer the case to a differently constituted appeal tribunal for re-determination.

 

14. 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 4 March 2009 a decision-maker of the Department decided that there should be no entitlement to DLA from and including 2 December 2008;

 

(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)       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.  In this respect I note that the appellant has provided the OSSC with further evidence which post-dated the appeal tribunal hearing.  Further I have noted that the appellant did not, the first time around, desire to attend an oral hearing of the appeal.  She may wish to reconsider that decision and may wish to seek representation in connection with the further appeal tribunal hearing; and

 

(iv)       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

 

Chief Commissioner

 

 

 

17 August 2011