DIH-v-Department for Social Development (DLA) [2012] NICom 257

Decision No:  C52/11-12(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 7 April 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 7 April 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.    I am able to exercise the power conferred on me by Article 15(8)(a)(i) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given.  My decision is that the decision of the Department dated 21 December 2009 is confirmed.  Accordingly, the appellant is not entitled to either the care or the mobility component of disability living allowance (DLA) from and including 30 September 2009.

 

3.    Accordingly, although the appeal to the Social Security Commissioner succeeds, the outcome, in terms of benefit entitlement, remains the same.  This decision will come as a disappointment to the appellant but I am obliged, as was the appeal tribunal, to apply the relevant legislative provisions to the facts of the case.

 

       Background

 

4.    On 21 December 2009 a decision-maker of the Department decided that the appellant should not have an entitlement to either the care or the mobility component of DLA from and including 30 September 2009.  On 5 January 2010 an appeal against the decision dated 21 December 2009 was received in the Department.  On 13 January 2010 the decision dated 21 December 2009 was reconsidered but was not changed.

 

5.    The appeal tribunal hearing took place on 7 April 2010.  The appellant was present and was accompanied by her father.  There was no departmental presenting officer present.  The appeal tribunal disallowed the appeal and confirmed the decision dated 21 December 2009.  On 15 July 2010 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS).  On 6 August 2010 the application for leave to appeal was refused by the legally qualified panel member (LQPM).

 

6.    On 9 September 2010 a further application for leave to appeal was received in the Office of the Social Security Commissioners (OSSC).  On 28 October 2010 written observations on the application for leave to appeal were sought from Decision Making Services (DMS).  Written observations were received on 23 November 2010.  In these written observations, Mrs Hulbert, for DMS opposed the application for leave to appeal on the grounds cited in the application.  Written observations were shared with the appellant on 1 December 2010.

 

7.    On 23 February 2011 the appellant was requested to provide a full copy of a medical report which had been made available to the appeal tribunal.  The medical report was received on 2 March 2011 and was shared with Mrs Hulbert on 28 March 2011.  On 5 April 2011 further written observations were received from Mrs Hulbert which where shared with the appellant on 13 April 2011.  On 27 April 2011 further correspondence was received from the appellant.

 

       Errors of law

 

8.    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.

 

9.    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.”

 

       Why was the decision of the appeal tribunal in the instant case in error of law?

 

10.   In the original written application for leave to appeal which was before the LQPM, the appellant submitted that evidence from a ‘qualified nurse’ which had advised that she required care for three hours per day had been ‘ignored’.  That submission was repeated by the appellant in the further application for leave which was received in OSSC and in her further written observations, dated as received on 27 April 2011, and which were made in response to those observations of Mrs Hulbert, dated 5 April 2011.

 

11.   The record of proceedings for the appeal tribunal hearing records that the appeal tribunal had before it a report from Marion C, dated 30 September 2006.  The record of proceedings goes on to set out the contents of that report in some detail.  Thereafter there is no mention of the report in the statement of reasons for the appeal tribunal’s decision.

 

12.   It is clear that the appellant placed reliance on the report from Ms C, dated 30 September 2006, and had submitted this report to the appeal tribunal in support of the appeal which was being made to it.  While the appeal tribunal has acknowledged receipt of the medical report and made reference to its contents in the record of proceedings for the appeal tribunal hearing, it has not, in my view, set out its conclusions and findings with respect to that report as part of its overall assessment of the evidence which was before it.  In my view, the appellant was entitled to know what the appeal tribunal made of a report which was adduced specifically in support of the contentions made by her in connection with her appeal.  I accept that the appeal tribunal, in the statement of reasons for its decision, has made reference to careful consideration of all of the medical evidence which was before it, and that could be interpreted to include the report from Ms C.  In my view, however, the appeal tribunal was obliged to say something more about its conclusions and findings with respect to this report.  The failure to undertake a more rigorous assessment of this specific piece of evidence renders the decision of the appeal tribunal as being in error of law.

 

13.   As part of the proceedings before the Social Security Commissioners, I have been provided with a full copy of the report from Ms C, dated 30 September 2006.  I would begin by noting that this report was prepared for court proceedings.  I note that the appeal tribunal had recorded that there had been court proceedings in relation to medical negligence.  It is highly likely, therefore, that the report from Ms C, and the reports from Mr D and Professor P, extracts from which were forwarded to TAS before the appeal tribunal hearing, were prepared in connection with the medical negligence proceedings.

 

14.   I would emphasise, however, that the fact that a report is prepared in connection with one type of legal proceedings for consideration by one specific judicial body does not mean that it cannot be considered to be relevant to other judicial proceedings.  Accordingly, and as was noted above, as it was adduced in evidence before the appeal tribunal, it had to be considered.  I would note, however, that the date of the report is 30 September 2006.  The appeal tribunal was obliged, under Article 13(8)(b) of the Social Security (Northern Ireland) order 1998, to consider the circumstances obtaining at the date of the decision under appeal.  The date of the decision which was under appeal to the appeal tribunal was 21 December 2009, as revised on 13 January 2010.  Accordingly, the report from Ms C pre-dated the decision under appeal by some three years and three months, and from the date of the claim by three years exactly.  Once again, that would not be fatal to its consideration if the evidence contained within the report was relevant to the period under consideration by the appeal tribunal.

 

15.   I have noted that the first two pages of the report are taken up with background details.  The bulk of the report, that is pages 3 to 13, is taken up with a description of the appellant’s medical background up to 2004.  There then follows a description of the appellant’s problems with her mobility, personal hygiene, nutrition, general health, behaviour, communication and ‘domestic and social’. Ms C then provides an opinion on the appellant’s care needs for specific periods, which include an opinion on the period from the date of the report.  Finally the report quantified the cost of the provision of care, using some detailed equations, which reinforces the view that one of the primary purposes of the report was to assess the appropriate level of damages in a negligence claim.

 

16.   In her application for leave to appeal to the Social Security Commissioner, the appellant focuses on the opinion of Ms C that the appellant would have present or future care needs of an average of three hours of care per 24 hours.  In her consideration of the period immediately prior to the completion of the report, Ms C identified the requirement for assistance with activities such as laundry, heavy shopping and heavy domestic work.  Once again this emphasises that the preparation of the report was for purposes other than a claim to DLA.  That is because such activities would not be considered in connection with determining whether the test for entitlement to the care component of that benefit, through the reasonable requirement for attention in connection with bodily functions, is satisfied.  In a similar way, Ms C has given the opinion that the appellant could not cope with lifting heavy pans for the preparation of a cooked main meal.  Once again, the ability to prepare a cooked main meal, for the purposes of entitlement to the lowest rate of the care component of DLA, through satisfaction of section 72(1)(a)(ii) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, does not include the requirement to manipulate heavy pots and pans.

 

17.   As was noted above, the report from Ms C considered the appellant’s circumstances up to 30 September 2006.  The appeal tribunal had before it medical evidence up to the date of the decision under appeal through the appellant’s general practitioner (GP) records.  In the record of proceedings for the appeal tribunal hearing, the appeal tribunal has set out a thorough analysis of the contents of the appellant’s GP records, including medical evidence from 2008 to 2009.  The report from Ms C has to be examined in the context of that medical evidence.  The examination of the contemporary medical evidence by the appeal tribunal was thorough and rigorous and I can find no fault with it.  Having examined the report from Ms C in that context, I cannot see how it could lead to a different conclusion that the appellant satisfied the conditions of entitlement to DLA from the date of claim, 30 September 2009.

 

18.   In her application for leave to appeal, the appellant has set out changes in her circumstances since the date of the appeal tribunal hearing and has challenged the assessment by the appeal tribunal of certain of the medical evidence, including the fact that she was taking medication and had seen a psychologist.

 

19.   Article 13(8)(b) of the Social Security (NI) Order 1998 provides –

 

‘(8)  In deciding an appeal under this Article, an appeal tribunal –

 

(a)……….

 

(b)  shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.’

 

20.   In C24/03-04(DLA), at paragraph 8, the Commissioner approved of the following statement of law set out in paragraph 9 of R(DLA) 2/01:

 

‘… In the case of a claim for a Disability Living Allowance, the jurisdiction {of an Appeal Tribunal} is limited to the inclusive period from the date of claim to the date of the decision under appeal.  The only evidence that is relevant is evidence that relates to the period over which the tribunal has jurisdiction.  However it is the time to which the evidence relates that is significant, not the date when the evidence was written or given.  It does not limit the tribunal to the evidence that was before the officer who made the decision.  It does not limit the tribunal to evidence that was in existence at that date.  If evidence is written or given after the date of the decision under appeal, the tribunal must determine the time to which it relates.  If it relates to the relevant period, it is admissible.  If it relates to a later time it is not admissible.’

 

21.   Accordingly, the appeal tribunal was limited to taking account of evidence that was relative to the period over which it has jurisdiction under Article 13(8)(b).  The principles in R(DLA) 2/01 give an accurate summary of the relevant legal principles, and confirm why a submission regarding changes in circumstances, subsequent to the decision of the appeal tribunal, cannot succeed as a ground for applying for leave to appeal to the Social Security Commissioner.

 

22.   If the submitted changes to her circumstances are, in the view of the applicant, sufficient to affect her current lack of entitlement to DLA, she may wish to draw these to the attention of the Department who may wish to take appropriate decision-making action.

 

23.   As was noted above, and absent the error with respect to specific consideration of the report by Ms C, I find no fault with the appeal tribunal’s assessment of the evidence which was before it.  It is clear that the appeal tribunal undertook a rigorous and rational assessment of all of the evidence before it.  The appeal tribunal gave a sufficient explanation of its assessment of the evidence, explaining why it took the particular view of the evidence which it did.  Any conflict in the evidence before the appeal tribunal has been clearly resolved and explained.  The appeal tribunal made sufficient findings of fact, relevant to its decision, all of which are wholly sustainable on the evidence, and all of which are supported by relevant evidence.  None of the appeal tribunal’s findings are irrational, perverse or immaterial.

 

24.   All issues raised by the appeal, either expressly or apparent from the evidence were fully examined by the appeal tribunal in conformity with its inquisitorial role.  Read as a whole, the statement of reasons for the appeal tribunal’s decision provides a detailed explanation of the basis on which the appeal tribunal arrived at its conclusions on the issues before it.

 

       Disposal

 

25.   The decision of the appeal tribunal dated 7 April 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.

 

26.   I am able to exercise the power conferred on me by Article 15(8)(a)(i) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given.  My decision is that the decision of the Department dated 21 December 2009 is confirmed.  Accordingly, the appellant is not entitled to either the care or the mobility component of DLA from and including 30 September 2009.

 

 

(signed):  K Mullan

 

Chief Commissioner

 

 

 

10 February 2012