Northern Ireland - Social Security and Child Support Commissioners' Decisions

PG-v-Department for Social Development (DLA) [2011] NICom 240

Decision No:  C23/11-12(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 3 September 2010

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.    Pursuant to the grant of leave to appeal by Deputy Commissioner Gamble on 26 September 2011, I proceed to determine all questions arising from the relevant ground of application for leave as though they arose on appeal.

 

2.    The appellant has not requested an oral hearing of the appeal “unless necessary”.  I consider that an oral hearing is not necessary in order to determine the appeal.

 

3.    The decision of the appeal tribunal of 3 September 2010 does not contain a material error of law.  Accordingly, the decision of the appeal tribunal that the appellant satisfies the conditions of entitlement to the low rate of the mobility component of disability living allowance (DLA) from and including 25 May 2010 is confirmed.

 

       Background

 

4.    The appellant made a renewal claim for DLA.  He had previously held an award of the low rate mobility component and middle rate care component from 25 May 2004 to 24 May 2007, and an award of the low rate mobility component and low rate care component from 25 May 2007 to 24 May 2010.  Following the renewal claim, the Department awarded the low rate of the mobility component from and including 25 May 2010.

 

5.    As it disallowed the care component, the appellant appealed the decision of the Department.  On 3 September 2010 his appeal was heard by an appeal tribunal sitting at Craigavon.  The tribunal upheld the award of the low rate of the mobility component but maintained the disallowance of the care component.

 

6.    On 23 February 2011 an application for leave to appeal to the Social Security Commissioner was received by the Appeals Service (TAS).  On 3 March 2011 the legally qualified panel member refused leave to appeal.  The application for leave to appeal was renewed to the Office of the Social Security Commissioners on 24 March 2011.

 

       Grounds of appeal to the Social Security Commissioners

 

7.    The appellant, through his representative, Mr McCloskey of Craigavon District CAB, broadly set out four grounds of appeal.  These included the ground that the appeal tribunal had given no indication in its record of proceedings or statement of reasons that they had considered the two page written submission provided by him which highlighted the appellant’s previous difficulties with treatment and the previous award of DLA.  This it was submitted would amount to a misdirection of law or a procedural error.

 

8.    The Department was invited to respond to the grounds of application for leave to appeal submitted by the appellant.  Mr Kirk on behalf of the Department opposed the grant of leave on three of those grounds.  However, Mr Kirk agreed with the contention that the tribunal had not made any reference to the representative’s submission.  He referred to relevant jurisprudence, such as C14/00-01(DLA) and C8/08-09(IB), and agreed that the tribunal had erred in law.

 

9.    Mr McCloskey for the appellant in turn responded, saying that his submission raised the point that the appellant had attempted cognitive behavioural therapy (CBT), had been visited in the home by an occupational therapist (OT) and been referred to a counsellor but could not bring himself to continue treatment.  He submitted that there was no evidence that the appeal tribunal considered and explicitly addressed the evidence in the submission, which highlighted the difficulties with treatment and the previous award of DLA.

 

10.   On a consideration of all the papers, Deputy Commissioner Gamble decided on 26 September 2011 that the appellant had made out an arguable case that the appeal tribunal had erred in law and granted leave to appeal on this single ground.

 

11.   Subsequently, I have revisited the grounds of application for leave to appeal raised by the appellant.  I too am satisfied that the other grounds do not raise any arguable error of law.  I therefore consider the appeal solely on the basis of the grant of leave to appeal by Deputy Commissioner Gamble.

 

The record of proceedings of the appeal tribunal

 

12.   The record of proceedings of the appeal tribunal records under the heading “Documents Considered” simply the words “Appeal Papers”.  This is not a helpful description of the documents before the appeal tribunal.  No document is identified with sufficient particularity to enable a person reading the “Documents Considered” section to know what material was before the appeal tribunal and what was not.  From references in the statement of reasons to particular documentary evidence, such as the general practitioner (GP) notes and records, it may be possible to build a picture of this.  However, that is an undesirable state of affairs and can lead to a dispute about whether the appeal tribunal gave proper consideration to the documents submitted to it, as occurs in the instant case.

 

       Assessment

 

13.   In paragraph 25 of unreported decision C14/00-01(DLA) Chief Commissioner Martin held that the tribunal’s failure to deal with a representative’s submission amounted to an error in law, stating that:

 

“the net result in the present case is that the claimant might reasonably be under the impression that the relevant document (containing evidence, assertions as well as legal submissions) had not been taken into account when the Tribunal came to its decision.  While I have every sympathy in the particular circumstances with the Tribunal, I consider that it has erred in law by not specifically dealing with this document.”

 

       In the circumstances of that particular case, the document in question had been referenced under the “Documents Considered” heading, but was not expressly considered in the reasons for the decision.  Here the document has not been referred to at all.

 

14.   In decision C39/09-10(DLA) the current Chief Commissioner commented as follows on a situation where no documents were listed under the “Documents Considered” heading:

 

“25.    Regulation 55(1) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, provides that:

 

‘55(1)  A record of the proceedings at an oral hearing, which is sufficient to indicate the evidence taken, shall be made by the chairman or, in the case of an appeal tribunal which has only one member, by that member, in such medium as he may determine.’

 

26.     Regulation 55 is not prescriptive about the format of the record of proceedings for the appeal tribunal hearing.  Nonetheless, the President of Appeal Tribunals for Northern Ireland has recommended the use of the template form for the purpose of making of a record of proceedings for use in each case.  Section 1 of the form is headed ‘Documents Considered’ and in this section, one would expect the chairman to note, in a summary format, the documentation which was before the appeal tribunal, including the documentation which was made available to the appeal tribunal in advance of the hearing, and any documentation which was made available to the appeal tribunal on the day of the hearing itself.  The ‘Documents Considered’ section serves as a useful ‘aide-memoir’ to the chairman of the appeal tribunal as to the documentary evidence or submissions which were before the appeal tribunal.  That aide-memoir would be very useful if and when the chairman is asked to prepare a statement of reasons for the appeal tribunal’s decision.”

 

Relying on principles derived from C16/08-09(DLA), he further stated:

 

“31.    Having found that the appeal tribunal was under a duty to consider the relevant documentation, and having failed to consider it, and explain, in its statement of reasons, that it has so considered it, I find that the decision of the appeal tribunal is in error of law.”

 

       Assessment

 

15.   It appears to me that there are two issues to be resolved.  Firstly, did the appeal tribunal have regard to the submission from the appellant’s representative as it was required to do?  Secondly, if not, what is the consequence for the lawfulness of the decision of the appeal tribunal?

 

16.   The documents before me show that TAS acknowledged receipt of correspondence from Mr McCloskey on 27 August 2010 and stated that copies had been distributed to the parties to the proceedings and would be included in the documents placed before the appeal tribunal.

 

17.   The correspondence in question consisted of a fax from Craigavon CAB, including a two page written submission from Mr McCloskey in bullet point form, a series of questions on the appellant’s condition and responses from Dr Mc……. on two pages, and an appointment letter with The B…….. Unit (formerly C……. Psychiatric Unit) for 29 July 2010.

18.   The submission set out the appellant’s diagnosis of post-traumatic stress disorder, depression and anxiety, and his DLA adjudication history.  It indicated that the appellant had experienced CBT in the past and was visited at home by an OT, that he had felt unable to engage with counselling, and received treatment from his GP and consultant psychiatrist.

 

19.   The submission indicated that the appellant would be unable to attend the appeal tribunal hearing because of his condition but would be represented by his father and Mr McCloskey.  The submission then commented critically on the format of the GP factual report and referred to the two pages from Dr M…….. which “gives an indication of the constant care, attention and supervision that (the claimant) requires daily from his parents”.

 

20.   The next six bullet points relate to the appellant’s care and supervision needs.  At this point it is relevant to note that at the hearing before the appeal tribunal, Mr McCloskey indicated that he had never spoken to the appellant either in person or on the phone.

 

21.   The submission stated that:

 

“(The claimant) will stay in bed during the day and needs to be encouraged to get up.  He is awake throughout the night and is hyper-vigilant.  His parents need to be awake to watch over him and try to reassure him when he is panicky and anxious.  If (the claimant) hears a noise or a car outside he will become panicky and run to fetch his father.

 

During the day (the claimant) needs to be encouraged with his care needs.  For example when showering he needs his father to stand outside the door for reassurance as he cannot hear someone coming due to the sound of the water from the shower.  He needs to be encouraged daily with his care needs.

 

As he has attempted suicide a number of times his parents are worried about leaving him unsupervised.  His father reports that he is worried when his son comes down from his room in a tantrum.  He complains about his condition, that he has no life and talks about ending it all.

 

(The claimant) has difficulty controlling his temper at home and this can often lead to disruptive behaviour.  His father needs to supervise him, reassure him and calm him down.

 

(The claimant) relies heavily on his father to communicate.  He needs to be heavily encouraged and supported to attend any appointments.  This is a constant struggle and is the reason he has discontinued his treatment with the psychologist.

 

(The claimant) does not have the motivation to cook for himself and he cannot concentrate for long enough to cook a main meal.  He would leave the kitchen to check on the house and not return to the cooker.  This has happened previously and caused a fire.”

 

22.   The document completed by Dr Mc……. consists of a series of direct questions.  Some examples are “Would sleep problems interfere with his daytime activities?” “Is he able to cope with changes in his daily routine?” “Does he frequently get distressed at some time of the day due to fluctuation of mood?”

 

23.   I note Mr McCloskey’s criticism of the format of the GP factual report which is requested by the Department for completion on pro forma DBD 370.  However, it seems to me that the format of the evidence submitted by Mr McCloskey is not above criticism itself.  This is because many of the questions asked in the questionnaire given to Dr Mc……. for completion appear aimed at eliciting evidence relevant to the mental health descriptors in the personal capability assessment for the purposes of entitlement to incapacity benefit.  They do not have direct relevance to DLA, which was the benefit with which the appeal tribunal was concerned.  In summary the evidence given by Dr Mc……….. in the questionnaire is:

 

“Has (the claimant) ever been referred to a psychiatrist? Attending psychiatrist for over 8 years.

Does he require encouragement to get up and dress? Ticked “yes”.  His parents constantly caring for him and encouraging him but he will not leave the house.

Has there been any reported incidents of self harm? Ticked “yes”.  Three times tried to kill himself.  One overdose and tried to hang himself twice.

Would sleep problems interfere with his daytime activities? Ticked “yes”.  His parents are up at night watching him.  In bed midday and up at night.

Would he frequently need reassurance due to feelings of anxiety or panic? Ticked “yes”.  His parents are his main and only carers.

Are you aware of any instances of hyper vigilance around the house due to his condition? Ticked “yes”.  Parents watch him constantly.

Is he able to cope with changes in his daily routine? Ticked “no”.

Does he frequently get distressed at some time of the day due to fluctuation of mood? Ticked “yes”.

Would he get upset by ordinary events that results in disruptive behavioural problems? Ticked “yes”.

Would his mental problems impair his ability to communicate with other people? Ticked “yes”. He does not go out at all.  Despite occupational therapy from psychiatric department.

Would he require reassurance and calming down due to problems with his temper? Ticked “yes”.”

 

24.   This document was completed on 25 May 2010.  That the appeal tribunal had sight of the report is confirmed in the passage from the statement of reasons where it is stated that “the General Practitioner’s report dated 25 May 2010 contains comments that the Appellant’s parents watch him constantly and that they are up at night watching him”.  This document was of course appended to Mr McCloskey’s submission.

 

25.   Therefore, while the statement of reasons contains no direct reference to the bullet point submission prepared by Mr McCloskey, the appeal tribunal certainly had sight of a document appended to that submission.  I think that it can be safely inferred from that fact that the appeal tribunal was more likely to have seen Mr McCloskey’s submission than not, and to have considered its content.

 

26.   However, what is the consequence if I am wrong about this?  Mr McCloskey’s written submission did not contain evidence.  He had never spoken to the appellant, even on the telephone.  What he knew about the appellant came through the documents and medical reports he had seen and from contact with the appellant’s parents, or at least his father.  In principle there is nothing to stop a representative giving evidence if it is based on personal knowledge (see C73/98(IB)), but this was not such a case.

 

27.   I would characterise the submission as a skeleton argument of the appellant’s case.  The points referred to in the submission were fleshed out at hearing, which the appellant did not attend but his father did.  The case was made for the appellant based on night time care needs due to lack of sleeping and hyper-vigilance; supervision due to risk of self-harm; care needs based around the appellant’s temper, anxiety and reluctance to engage with other people; and his need for help preparing a cooked main meal though lack of concentration.  However, these points were all made in the course of the oral hearing.  Similarly, the submission mentions past treatment through psychology services and disengagement from counselling, which is also considered in the course of the oral hearing.  I do not consider that the possibility that the appeal tribunal overlooked the representative’s submission materially affected the appeal tribunal’s consideration of the appellant’s case as far as these matters are concerned.

 

28.   One aspect raised in the representative’s submission does not appear to have been considered at hearing – namely the stated need for the appellant’s father to remain outside the bathroom while he was showering to reassure him that the noise of someone coming to attack him would not be masked by the sound of the water.  When the principles arising from C16/08-09 and C14/00-01(DLA) are considered, it is arguable that the appeal tribunal has erred in law.

 

29.   However, in R(Iran) v. Secretary of State for the Home Department [2005] EWCA Civ 982, a decision approved by the Tribunal of Commissioners in R(I)2/06 in Great Britain and by the Northern Ireland Commissioners in many cases, it was stated that “errors of law of which it can be said that they would have made no difference to the outcome do not matter”.

 

30.   Even if this amounted to attention in connection with a bodily function - which is debatable as it would not appear to have the associated degree of intimacy required following R v Woodling [1984] 1 WLR 348 – I do not consider that the action of remaining outside a room for the duration of a shower is capable of amounting to attention for a significant portion of the day such as to affect the conclusions of the tribunal in relation to care.  The emphasis of the evidence heard by the appeal tribunal was that the appellant was reluctant to shower, and bearing in mind the evidence of hyper-vigilance, it is reasonable to conclude that he would spend as short a period in the shower as he possibly could.  I consider that the anticipated duration of a shower would be no longer than five to ten minutes, and I find accordingly that the appellant would not reasonably require attention in this regard for a significant portion of the day.

 

31.   Therefore, although the decision of the appeal tribunal contains an error of law, I do not consider that it is an error such as would have materially affected the outcome of the hearing.  On that basis, I disallow the appeal.

 

 

(signed):  O Stockman

 

Commissioner

 

 

 

13 December 2011