Northern Ireland - Social Security and Child Support Commissioners' Decisions

AD-v-Department for Social Development (DLA) [2011] NICom 239

Decision No:  C24/11-12(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 18 May 2010

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

       The claimant’s appeal is allowed.  The decision of the Belfast Appeal Tribunal of 18 May 2010 is erroneous in law.

 

       It is set aside.

 

       The case is remitted to a freshly constituted appeal tribunal for redetermination in accordance with the directions in paragraph 9 of the reasons.

 

 

REASONS

 

 

1.    The claimant is a man now aged 19, his date of birth being 8 July 1992.  His stated disabilities are asthma, speech and communication difficulties, eczema and behavioural difficulties.  In 2003 he suffered a collapsed lung.

 

2.    The claimant held an award of the highest rate of the care component of disability living allowance (DLA) from 20 February 1997 to 7 July 1999.  On the expiry of that award he was re-awarded the same rate of the care component along with the lower rate of the mobility component until 7 July 2008.  On 15 February 2008 a renewal claim was made to take effect from 8 July 2008, the claimant’s 16th birthday.  On 31 March 2008, the decision-maker in response to that renewal claim refused to make any award of DLA from 8 July 2008.  On 21 April 2008 the claimant’s mother requested a reconsideration of the decision-maker’s decision.  It was reconsidered but not revised on 23 April 2008.  Thereupon, on 6 May 2008, the claimant’s mother appealed on his behalf.  The decision-maker’s decision was upheld by an appeal tribunal convened on 16 September 2008.  The claimant successfully appealed against the appeal tribunal’s decision.  On 18 November 2009 Mr Commissioner Mullan set it aside by decision C42/09-10(DLA) remitting the case for reconsideration by a differently constituted appeal tribunal.

 

3.    The case was listed for a rehearing before an appeal tribunal on 13 January 2010.  That tribunal adjourned it to facilitate the claimant’s attendance at a further hearing.  It then proceeded to a hearing on 18 May 2010 which the claimant attended and at which he was represented.  The tribunal held on that date refused his appeal once again and upheld the decision-maker’s decision.

 

4.    The legally qualified panel member who chaired the appeal tribunal of 18 May 2009 refused an application by the claimant to set the tribunal’s decision aside under regulation 57 of the Decisions and Appeals Regulations (Northern Ireland) 1999 on 1 December 2010.  Then, on 25 January 2011, she refused an application by the claimant for leave to appeal to the Social Security Commissioner.  That application was renewed to the Commissioner directly.  I gave him leave to appeal on 26 September 2011.  This appeal therefore proceeds with my leave.

 

5.    Six grounds of appeal against the tribunal’s decision of 18 May 2010 are advanced by his mother on his behalf.  The fourth of those grounds relates to the issue of a possible propensity to fall on the part of the claimant.  The Department for Social Development (Decision Making Services) support that ground of appeal only, dissenting from the others.

 

6.    The written and oral evidence available to the tribunal on the claimant’s falls was as follows:

 

(i)     In his claim pack the claimant answered the question “Do you fall or stumble out doors?” by stating “No.”

 

He did not answer the question “Do you fall or stumble indoors?” at all.

 

(ii)    The general practitioner’s factual report makes no reference to falls on the part of the claimant (or indeed stumbles) either indoors or out of doors.

 

(iii)    The tribunal’s record of proceedings notes the claimant as stating in his oral evidence:

 

“I have fallen in the living room a few times – not recently – didn’t fall to the ground.

 

I fell in the garden 4 weeks ago.  I just fell.  Needed no medical attention.  Problem with falling has not been reported to the doctor.”

 

7.    The tribunal dealt with the above evidence thus.  In regard to the lower rate of the mobility component they state in their reasons for decision:

 

“He is not subject to falls.  There have apparently been very occasional episodes of light-headedness or possible faint associated with infections, but these do not occur with sufficient frequency to reasonably require supervision.”

 

In respect of the care component they put matters thus:

 

“We find that he does not have a propensity to fall.”

 

       I agree with the Department that the findings which I have just narrated from the tribunal’s statement of reasons were not irrational on the evidence.  However, in making them, the tribunal have not said what they made of the claimant’s oral evidence quoted in paragraph 6 (iii) above.  It may well be the case that they simply did not believe it or at least did not regard it as particularly convincing or credible.  On the other hand, they may have broadly accepted it but considered that it did not really refer to falls in the full sense of the word but rather only to stumbles.  However, both myself as the Commissioner and, equally importantly, the claimant are left guessing as to which of these approaches (or possibly some other one) the tribunal took.  We simply do not know what they made of the claimant’s oral evidence on the issue of falls.  In these circumstances I find myself in agreement with the Department’s submission that the failure on the part of the tribunal to deal explicitly with that oral evidence renders their decision erroneous in law.

 

8.    Given the history of this case, it is with some degree of reluctance that I set the tribunal’s decision aside.  However I do so on the basis of the error of law identified in paragraph 7 above.  I do not consider it expedient to remake it with or without fresh findings of fact.  A process of fact-finding is still required.  That is much better carried out by a freshly constituted appeal tribunal including members with medical and disability as well as purely legal expertise.  I thus remit the case for redetermination by a freshly constituted tribunal in accordance with the directions laid out in paragraph 9 below.  For the sake of completeness, I should add that in these circumstances it is unnecessary for me to comment on or determine the other grounds of appeal stated on the claimant’s behalf.

 

9.    My directions for the rehearing are as follows:

 

(a)    The Department should lodge a brief written submission stating whether or not the claimant has made a fresh claim to DLA which has been adjudicated on.  If he has, the new tribunal will be restricted to dealing with the fixed period between the date of claim (8 July 2008) and the day immediately before any such adjudication took place.

 

(b)    Although the claim made by the claimant on 15 February 2008 was a renewal claim he bears the legal onus of establishing that he satisfies the relevant statutory criteria of entitlement to benefit.

 

(c)    The new tribunal should restrict themselves to the circumstances prevailing at the date of the decision under appeal, 31 March 2008, ignoring any subsequent deterioration or improvement in the claimant’s condition.  Evidence postdating that date should be considered but only so far as its content relates to the circumstances prevailing then.

 

(d)    The new tribunal are entitled to restrict themselves to those aspects of the claimant’s entitlement to DLA which are specifically put at issue before them by the claimant’s representative.  If however other aspects of his entitlement arise, in their view, from the whole state of the evidence they should consider those as well.

 

(e)    They should determine the case by making focused findings of fact on the basis of such of the available evidence as they accept on balance of probabilities and then applying to those findings the relevant statutory criteria of entitlement.

 

(f)     In particular, to avoid the error of law made by the last tribunal, they should deal carefully with the issue of whether or not the claimant has a propensity to fall both in regard to the lower rate of the mobility component and in regard to the care component.

 

10.   The claimant’s appeal thus succeeds.  He should draw no inference from that success as to eventual success on the merits.  Those will be determined by the new tribunal rehearing his case and applying the directions laid out in paragraph 9 above.

 

 

(signed):  A J Gamble

 

Deputy Social Security Commissioner

 

 

 

1 December 2011