RRB-v-Department for Social Development (DLA) [2011] NICom 209

Decision No:  C19/11-12(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 16 June 2010

 

 

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 June 2010 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 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

 

6. On 21 January 2010 a decision-maker of the Department decided that the appellant was not entitled to DLA from and including 1 February 2010, on a renewal claim.  There had been several previous awards of entitlement to DLA.  Following receipt of correspondence to that effect, and additional medical evidence, the decision dated 21 January 2010 was reconsidered on 22 February 2010 but was not changed.  The appeal was received in the Department on 19 March 2010.

 

7. The substantive appeal tribunal hearing took place on 16 June 2010.  The appellant was not present.  The record of proceedings for the appeal tribunal hearing record that the appellant had written to the Appeals Service (TAS) to indicate that he would not be able to attend the oral hearing of the appeal and indicating that he would prefer the appeal tribunal hearing to proceed in his absence.  There was no Departmental presenting officer present.

 

8. The appeal tribunal allowed the appeal in part, making a decision that the appellant was entitled to the lowest rate of the care component of DLA from and including 1 February 2010 but was not entitled to either rate of the mobility component of DLA from and including the same date.

 

9. On 3 November 2010 an application for leave to appeal to the Social Security Commissioner was received in TAS.  On 3 December 2010 the application for leave to appeal was refused by the legally qualified panel member.

 

Proceedings before the Social Security Commissioner

 

10. On 16 December 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 29 March 2011 observations were sought from Decision Making Services (DMS) and these were received on 8 April 2011.  Mr Kirk, for DMS, supported the application for leave to appeal.  The basis of that support will be examined in greater detail below.  Observations were shared with the applicant on 5 May 2011.  On 10 May 2011 further correspondence was received from the appellant which was shared with DMS on 11 May 2011.

 

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?

 

13. The appeal tribunal has provided a detailed, analytical statement of reasons for its decision with respect to the majority of the issues arising in the appeal.  Where then did the appeal tribunal go wrong in law?

 

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

 

‘… the tribunal in this case conducted a paper hearing.  At paragraphs 1 to 4 of page 2 of the reasons for decision the tribunal noted;

 

“As regards the care component, we noted and accepted the Examining Medical Practitioner clinical findings.  We considered that the Examining Medical Practitioner findings, following examination of (the claimant), were entirely consistent with the evidence provided by his General Practitioner i.e. that he suffers from low mood/mild depression intermittently.

 

We took account of the fact that (the claimant’s) General Practitioner noted a recurrence of symptoms and also we had the benefit of a recent letter from Dr M.. C…., staff Grade Psychiatrist, dated 23.3.2010.  Dr C…. provided further confirmation that (the claimant) suffers with a “mixed anxiety/depressive illness”, and that he continues to require treatment with an anti-depressant and is at risk of self harm.  He did not, however, provide any detailed information with regard to the impact of (the claimant’s)] condition on his ability to manage activities of daily living.

 

The Examining Medical Practitioner recorded that (the claimant’s) mood fluctuates a little but that he is generally well motivated and on average 2 days per month he feels low enough to stay in bed and that other days he attends to all aspects of daily living.

 

The Tribunal is of the view that this evidence was consistent with the information provided by the General Practitioner.  In the absence of any medical evidence to the contrary, the Tribunal relied primarily on the professional opinion of the Examining Medical Practitioner, based on his clinical findings and observations, that (the claimant) is capable of attending to his bodily functions safely and unaided.  We furthermore accepted the assessment of the Examining medical practitioner that (the claimant) was fully mentally competent.”

 

In the above the tribunal have clearly noted the evidence contained in the letter from Dr C… but have also stated that Dr C…. had not provided any detailed information as to (the claimant’s) ability to manage his daily living needs.  In making that comment the tribunal were I submit clearly indicating that it did not place much weight upon the letter from Dr C…. for that reason.  As previously noted this was a paper hearing and the tribunal did not have the benefit of viewing (the claimant’s) medical notes and records.  In such circumstances there was I submit an onus upon the tribunal to consider any evidence which was contradictory to the evidence which had been obtained by the Department.  As the evidence from Dr C…. did indicate some needs the tribunal should in my opinion have considered if it required further evidence from that source.  It failed to do so and this and as a result I submit that the tribunal had failed in its inquisitorial role.

In addition to the above point I would also like to comment upon the tribunal’s acceptance of the Examining Medical Practitioner’s (EMP) report.  The tribunal has stated that this report was accepted because of the absence of any evidence to the contrary.  The evidence from Dr C… regarding the self harm issue could in my opinion be construed as evidence which was contrary to some of the findings of the EMP who did not find (the claimant) to exhibit any dangerous behaviour (question 17, tab no 3 of the scheduled documents).  In view of this there was, I submit, an onus upon the tribunal to clearly explain why it was rejecting the evidence of Dr C…. in favour of the EMP report and its failure to do so renders the decision erroneous in law.’

 

15. I agree with this submission from Mr Kirk.  While the appeal tribunal’s assessment was careful its acceptance of the medical evidence contained within the report of the examining medical practitioner (EMP) ‘in the absence of any medical evidence to the contrary’ fails to take account of the evidence of the psychiatrist, Dr C…, which, in its content, could be construed as providing evidence which contradicted some of the conclusions of the EMP.  I agree, therefore, that the decision of the appeal tribunal, in failing properly to resolve what appears to be a conflict between two crucial pieces of evidence, is in error of law.  Accordingly, and with some regret given the appeal tribunal’s careful and judicious management of the other aspects of the appeal, and its circumspectly prepared statement of reasons, I set its decision aside.

 

Disposal

 

16. The decision of the appeal tribunal dated 16 June 2010 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.

 

17. 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 January 2010 in which a decision-maker of the Department decided that the appellant was not entitled to DLA from and including 1 February 2010;

 

(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 regard I have noted that for the appeal tribunal hearing which is the subject of these proceedings, the appellant did not give his consent to the release of his general practitioner records.  The appellant may wish to give further consideration to this issue, and in respect of all of the issues arising in the appeal may wish to consider obtaining representation; 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

 

 

 

7 September 2011