ED-v-Department for Social Development (DLA) [2011] NICom 234

Decision No:  C33/11-12(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 26 May 2010

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.    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 dated 26 May 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.

 

2.    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.  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, there may be further findings of fact which require to be made and 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.

 

3.    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.

 

4.    It is imperative that the appellant 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

 

5.    On 30 December 2008 a decision-maker of the Department decided that there were no grounds to supersede an earlier decision of the Department dated 24 May 2007.  The decision dated 24 May 2007 had made an award of entitlement to the lower rate of the mobility component and the lowest rate of the care component of DLA from 29 March 2007 to 28 March 2010.  An appeal against the decision dated 30 December 2008 was received in the Department on 10 February 2009.

 

6.    There were two adjournments of the appeal tribunal hearing before the substantive oral hearing of the appeal took place on 26 May 2010.  In the file which is before me are details of a telephone call which had been made by the appellant to the Appeals Service (TAS) on the day before the appeal tribunal hearing in which she indicated that she was unwell, would not be able to attend the oral hearing of the appeal and seeking a further adjournment of the appeal.  In the record of proceedings for the appeal tribunal hearing which did take place on 26 May 2010 the legally qualified panel member (LQPM) of the appeal tribunal has noted the appellant’s absence, her request for an adjournment made on the previous day and the record of previous adjournments of the oral hearing of the appeal.  The LQPM then sets out the basis upon which the appeal tribunal decided to proceed with the oral hearing of the appeal.  I would note, at this stage, that I find that the decision to proceed with the oral hearing of the appeal was one which the appeal tribunal was entitled to make and that the appeal tribunal has set out in some detail the basis upon which the decision to proceed was made.

 

7.    The appeal tribunal disallowed the appeal and confirmed the decision dated 30 December 2008.  On 12 November 2010 an application for leave to appeal to the Social Security Commissioner was received in TAS.  On 23 November 2010 the application for leave to appeal was refused by the LQPM.

 

       Proceedings before the Social Security Commissioner

 

8.    On 23 December 2010 a further application for leave to appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners.  On 12 April 2011 written observations on the application were sought from Decision Making Services (DMS) and these were received on 3 May 2011.  In these written observations, Mr Kirk, for DMS, opposed the application on the grounds cited by the appellant but submitted that the decision of the appeal tribunal was in error of law on the basis of another ground.  Written observations were shared with the appellant on 17 May 2011.  On 17 June 2011 written observations in reply were received from the appellant and were shared with Mr Kirk on 22 June 2011.

 

       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.”

 

       The error of law in the instant case

 

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

 

‘Error in law?

 

I believe that for the following reasons the tribunal has erred in law.

 

At paragraphs 1 and 3 of page 2 of the reasons for its decision the tribunal noted:

 

“……………………The Tribunal was able to observe the appellant on the 11 March 2010 when she came to the adjourned hearing and was able to observe that she had no difficulty entering the room, choosing a chair, sitting down, finding her papers and getting up and leaving the room.  She was not wearing her glasses.

 

Regarding her poor vision the tribunal prefers its observations that the appellant was able to read her papers at the adjourned hearing and was able to get about the hearing room without any apparent visual problems.  This observation is preferred as it does not contradict the above medical opinion.  According to the medical opinion there is no medical reason to explain her alleged inability to wear correcting glasses.  The Tribunal is of the view that the appellant would like to be classed as partially sighted as that is how she describes herself in her application.  The Tribunal finds that the appellant, in her application has exaggerated her difficulties as it had observed her ability in the tribunal room.…………………………….”

 

As noted above the tribunal in this case has clearly used its observations of (the claimant) as a major factor in reaching its conclusion.  Whilst there is nothing wrong with a tribunal using its observations of the appellant to help it reach a decision however there is, I submit, an onus on tribunals to put its observations to the claimant for comment.  In unreported decision C26/10-11(DLA) Commissioner Mullan sought the Department’s views on this subject with reference to reported decisions R1/01(IB)(T), R(DLA)8/06 and R1/01(IB)(T).  Commissioner Mullan agreed with the Department that when relying on its observations tribunals should put such observations to claimants for their comments.  At paragraph 23 of his decision Commissioner Mullan stated:

 

“23.  The legal principles concerning the extent to which an appeal tribunal may take into account its observations of an appellant at an oral hearing are clear.  In addition to those principles set out in R3/01(IB) (T) and R (DLA) 8/06 cited by DMS, in R1/01(IB) (T), a Tribunal of Commissioners stated, at paragraph 13:

 

‘… we wish to deal with one point.  In paragraphs 21 to 24 of decision R 4/99 (IB), Mrs Commissioner Brown held that a Tribunal, like any other adjudicating body, is entitled to use all its senses in assessing the evidence before it and may take account of what it sees as well as hears.  She referred to decision CDLA/021/1994 (now reported as R (DLA) 1/95), in which a Great Britain Commissioner, Mr Commissioner Skinner, said: -

 

“… The tribunal are precluded from conducting a walking test or making a medical examination of the claimant.  However, it does not appear to me that the tribunal’s ocular observation of the claimant can be said to amount to a physical examination nor can it be said that the claimant has been required to undergo any physical test.  It does not seem to me that the tribunal [which took into account observations made by the members during the hearing] were in breach of the prohibition contained in the section.  I have considered whether the reliance by the members of the tribunal on their own observation of the claimant may be objectionable on other grounds.  It seems to me that a tribunal are entitled to have regard to what they see provided that the weight to be attached is considered carefully. …”

 

We agree with those views.  In the context of a Tribunal hearing, sight is one of the more important senses.  Observing the manner in which a witness gives his or her evidence and how he or she behaves or responds at other times is an important part of the process.  Witness A may be wholly convincing while everyone who listens to and observes witness B soon becomes certain that he or she is lying.  A Tribunal must, of course, consider its observations carefully and judiciously.  The neatly dressed man who has said he is unable to look after himself may be lying.  On the other hand, the Tribunal may be seeing the results of extensive efforts by his family or friends to tidy him up for the hearing.  Further, a Tribunal which is going to base its decision, or an important part of its decision, on what it has seen should usually put its observations to the claimant and thereby give him an opportunity to comment.  It will then be for the Tribunal to accept or reject the comments.  Whether or not this is necessary will depend in a large measure on whether the Tribunal’s observations raise a new issue or constitute fresh evidence or whether they merely confirm existing evidence.’

 

Whist I accept that the tribunal was entitled to use its observations I would submit that it should have afforded (the claimant) the opportunity to comment on these observations before reaching its decision and in failing to do so has erred in law.

 

Also as noted above it is recorded in the reasons for decision that the tribunal was able to observe (the claimant) at the adjourned hearing of 11 March 2010 and it prefers its observations that the appellant was able to read her papers without any apparent visual problems.  I would however point out that the constitution of the tribunal of 11 March 2010 and that of 26 May 2010 were different and that only the Legally Qualified Member (LQM) had been present at both hearings.  Therefore in referring to its observations at previous hearings the tribunal was referring solely to the observations of the LQM and not the whole tribunal.  It is therefore arguable that the LQM has influenced the panel without them actually having sight of what (the claimant) could or could not do.  Furthermore whilst reference is made to (the claimant) being able to read without apparent visual problems I would submit that without questioning her ability to read this would be just pure speculation.’

 

12.   I agree with Mr Kirk’s written observations on this issue, and, for the detailed reasons which are set out by him agree that the decision of the appeal tribunal is in error of law.  I set the decision of the appeal tribunal aside.

 

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

 

13.   Having found that the decision of the appeal tribunal is in error of law, I do not have to consider the appellant’s other grounds for appealing.  I would indicate, however, that I would also agree with the written observations of Mr Kirk on the two grounds which were cited by the appellant in the application.

 

       Disposal

 

14.   The decision of the appeal tribunal dated 26 May 2010 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.

 

15.   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 30 December 2008 in which a decision-maker of the Department decided that there were no grounds to supersede an earlier decision of the Department dated 24 May 2007.  The decision dated 24 May 2007 had made an award of entitlement to the lower rate of the mobility component and the lowest rate of the care component of DLA from 19 March 2007 to 18 March 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; 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

 

 

 

6 December 2011