Northern Ireland - Social Security and Child Support Commissioners' Decisions

PR-v-Department for Social Development (DLA) [2012] NICom 266

Decision No:  C53/11-12(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 28 January 2011

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.    Having considered the circumstances of the case, 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.  The decision of the appeal tribunal dated 28 January 2011 is in error of law.  The error of law identified will be explained in more detail below.

 

2.    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.  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.

 

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 13 May 2010 a decision-maker of the Department decided that there were no grounds to supersede an earlier decision of the Department dated 13 November 2003.  The decision dated 13 November 2003 had itself superseded an earlier decision of the Department dated 11 February 1994 and, in turn, which had awarded an entitlement to the higher rate of the mobility component of DLA from and including 13 November 2003.  An appeal against the decision dated 13 May 2010 was received in the Department on 6 July 2010.

 

7.    Following an earlier adjournment, the substantive appeal tribunal hearing took place on 28 January 2011.  The appellant attended the oral hearing of the appeal accompanied by his wife, and was represented by Mr Sloan of the Citizens Advice Bureau.  The appeal tribunal disallowed the appeal and confirmed the decision dated 13 May 2010.  On 3 June 2011 correspondence was received in the Appeals Service (TAS) from the appellant’s representative.  It would appear that this correspondence was ‘treated’ as an application for leave to appeal to the Social Security Commissioner and was presented in that way to the legally qualified panel member (LQPM).  On 23 June 2011 the application for leave to appeal was refused by the LQPM.

 

       Proceedings before the Social Security Commissioner

 

8.    On 27 July 2011 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 25 October 2011 observations on the application for leave to appeal were sought from Decision Making Services (DMS) and these were received on 4 November 2011.  In these written observations, Mr Kirk, for DMS, opposed the application on the grounds cited by the appellant’s representative but supported the application on another cited ground.  Written observations were shared with the appellant and his representative on 10 November 2011.

 

9.    In the interim, telephone communications were exchanged between the Office of the Social Security Commissioners and TAS on the issue of whether the LQPM, in light of the wording of the correspondence received in TAS on 3 June 2011 should have considered setting aside the decision of the appeal tribunal.  On 23 November 2011 further correspondence was received from TAS attaching a response to a direction from the LQPM.

 

       Errors of law

 

10.   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.

 

11.   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?

 

12.   As was noted above, on 3 June 2011 correspondence was received in TAS from the appellant’s representative.  It would appear that this correspondence was ‘treated’ as an application for leave to appeal to the Social Security Commissioner and was presented in that way to the LQPM.  On 23 June 2011 the application for leave to appeal was refused by the LQPM.  The correspondence from the appellant’s representative is headed:

 

‘This is an application for a set aside of a decision of an Appeal Tribunal and/or leave to appeal to the social security commissioner.’

 

13.   In the correspondence, the representative goes on to make various submissions as to why the decision of the appeal tribunal was wrong.  One of the cited grounds was that the appeal tribunal had not commented on a medical report dated 13 September 2010 from a Mr H………, a Consultant Orthopaedic Surgeon.  The representative refers to the contents of the medical report in some detail and submitted that there had not been a rigorous enough assessment of the evidence from Mr H………. The correspondence concludes with the following paragraph:

 

‘We asked the Legally Qualified Member to set aside the decision of the 21st January 2011 and allow the appeal to be heard before a new appeal panel.  If the Legally qualified panel [sic] refuses to set aside the decision of the 21^st January 2011 we ask they accept this as an application to appeal to the social security commissioner for decision on the matter.’

 

14.   In the written observations on the application for leave to appeal, Mr Kirk, for DMS comments on the submission from the appellant’s representative concerning the appeal tribunal’s assessment of the evidence from Mr H………, as follows:

 

‘In the present case I can find no trace of any report from Mr H……… in the papers I have received.  I contacted the Commissioner’s office who subsequently contacted The Appeals Service and neither office could find a copy of the report in their papers (…).  As there is no trace of this report in the papers I can only assume that the relevant report was included in the General Practitioner notes which were considered by the tribunal.  If this is correct then it is not unreasonable to accept that this report would have been considered by the tribunal.  If the report contained information relating to (the claimant’s) needs then I would submit there was an onus on the tribunal to consider it and to clearly explain why it was accepting or rejecting that evidence in the reasons for decision.  Failure to do so would amount to an error in law.

 

Alternatively if the report did not contain information which was pertinent to the issue under consideration then I would submit that the tribunal did not err in not making any specific reference to the report.  At paragraph 11 of unreported decision C34/06-07(DLA) Commissioner Brown stated:

 

“It is also worth remarking in this connection that the tribunal is not required to comment on every piece of evidence before it.  It is required to explain its decision.  Lord Penrose in the case of Asif v Secretary of State for the Home Department 1999 SLT 890 at 894 G-H stated as follows:

 

“… nothing could be more destructive of the efficient disposal of immigration appeals than the notion that the adjudicator and the tribunal are under an obligation to carry through a mechanical process of narration of the evidence, analysis of it into classes, and explanation factor by factor of the relevance, or irrelevance, credibility and reliability or otherwise of it.”

 

Finally I would refer to Mr Sloan’s comment that the report from Mr H……… contained information as to a new condition suffered by (the claimant).  It is my submission that this would only be relevant grounds for supersession if it led to an increase in (the claimant’s) personal care needs.’

 

15.   Following an exchange of telephone communication on the issue of whether the LQPM should have considered setting aside the decision of the appeal tribunal, on 23 November 2011, further correspondence was received from TAS attaching a response to a direction from the LQPM.  In the direction, the LQPM was asked whether ‘… a Set Aside was considered or not?’  The LQPM’s response was that:

 

‘No.  I did not consider a set aside, because in error I did not read Mr Sloan’s letter carefully enough.  Having now considered Mr Sloan’s letter of 3/6/11 in detail I accept panel did not comment on Mr H………..’s report.  This could have been an error in law.  It is appropriate this matter is now set aside in interests of natural justice.’

 

16.   It is not clear to me whether the appellant’s representative meant to have both an application to set aside the decision of the appeal tribunal under regulation 57 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, and an application for leave to appeal to the Social Security Commissioner under regulation 58 of the same Regulations.  The grounds for setting aside a decision under regulation 57 are reasonably specific and it is difficult to know how the grounds set out by the appellant’s representative would fit into the regulation 57 requirements.  Equally, the reference to the LQPM ‘setting aside’ the decision might be an allusion to the LQPM’s power, under Article 14(2) where the LQPM, on an application to that effect, considers that the decision of the appeal tribunal is in error of law, to remit the case for determination by a differently constituted appeal tribunal.

 

17.   I am satisfied, however, that on receipt of the correspondence from the appellant's representative on 3 June 2011, additional administrative action ought to have been taken by TAS.  Firstly clarification might have been sought from the appellant's representative as to the true intentions behind the correspondence.  In the alternative, the correspondence might have been placed before the LQPM with a request to determine the proper intention behind it.  It was not enough, in my view, simply to place the correspondence before the LQPM as an application for leave to appeal to the Social Security Commissioner.

 

18.   The LQPM has been remarkably frank in admitting that she did not read the correspondence from the appellant's representative carefully enough.  She is also candid in stating that had she paid the proper attention to the contents of the correspondence she might have taken different action in respect of it.  Once again, however, it is not clear to me what form that action might have been.  The LQPM states that she accepts that the '... panel did not comment on Mr H………'s report' and that the failure to so do might have been an error in law.  Her solution is to state that '... it is appropriate this matter is now set aside in interests of natural justice.'  I am not sure whether the LQPM is stating that a setting aside of the decision of the appeal tribunal is appropriate under regulation 57 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, or whether, given a further opportunity, she would have exercised her power, having considered that the decision of the appeal tribunal is in error of law, to remit the case for determination by a differently constituted appeal tribunal.

 

19.   I am satisfied that something has gone wrong with the assessment of the evidence which was before the appeal tribunal, more particularly, the evidence contained within the report of Mr H…………. I am satisfied that the relevant report was before the appeal tribunal, either having been specifically adduced in evidence by the appellant's representative or formed part of the appellant's general practitioner records.  I am satisfied that emphasis was placed on the relevant report as representing evidence in support of the appellant's case.  I am satisfied that the appeal tribunal, as is now accepted by the LQPM, ought to have set out its conclusions and findings with respect to this evidence as part of its overall assessment of the evidence which was before it.  The failure to make specific its findings and conclusions with respect to the report from Mr H……….. renders the decision of the appeal tribunal as being in error of law.

 

20.   In the written observations on the application for leave to appeal Mr Kirk submits that the decision of the appeal tribunal might have been in error of law on another cited ground.  Mr Kirk submits that certain references in the statement of reasons for the appeal tribunal's decision to 'valid medical grounds' and 'valid medical reasons' for superseding meant that the appeal tribunal had misdirected itself as to what the legal basis for supersession was in the instant case.

 

21.   The decision which was before the appeal tribunal was a decision of the Department dated 13 May 2010 in which a decision-maker decided that there were no grounds to supersede an earlier decision of the Department dated 13 November 2003.  The decision dated 13 November 2003 had itself superseded an earlier decision of the Department dated 11 February 1994 and, in turn, which had awarded an entitlement to the higher rate of the mobility component of DLA from and including 13 November 2003.  Supersession and, more particularly, whether there were grounds to supersede a decision of the Department, were issues which were before the appeal tribunal.  The appeal tribunal, in the statement of reasons for its decision, began by stating that the question which was before it was:

 

'... to consider are these valid medical grounds for the supersession decision dated 13.05.2010 which stated that there are no grounds to supersede the decision dated 13.11.2003 which stated that (the claimant) did not satisfy the criteria for an award of care component Disability Living Allowance at any of the three levels.'

 

22.   Having gone through the evidence which was before it, the appeal tribunal concluded that:

 

'It therefore appears there are no valid medical grounds why the decision of 13.11.2003 (not awarding any care component Disability Living Allowance) shall be superseded.'

 

23.   I accept that the passages which are cited above from the appeal tribunal's statement of reasons are clumsy in their phrasing.  I am of the view that what the appeal tribunal meant to say was that the medical evidence did not support a supersession on the basis of a relevant change of circumstances, for the purposes of regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, of the decision dated 13 November 2003.  Accordingly, and absent the error in respect of the assessment of the evidence, noted above, I would not necessarily have found the decision of the appeal tribunal to be in error of law on the basis of this ground.

 

24.   I have noted that the appellant's representative, in the application for leave to appeal to the Social Security Commissioner, has submitted that the decision of the appeal tribunal was in error of law on the basis of two further submitted grounds.  Having concluded that the decision of the appeal tribunal is in error of law on the basis of another ground, I do not have to consider these additional grounds in any degree of detail.  I would note, however, that I would not have found the decision of the appeal tribunal to be in error of law on the basis of those additional grounds.

 

Disposal

 

25.   The decision of the appeal tribunal dated 28 January 2011 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.  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.

 

26.   I direct that the parties to the proceedings and the newly constituted appeal tribunal take into account the following:

 

1.     the decision under appeal is a decision of the Department, dated 13 May 2010 in which a decision-maker decided that there were no grounds to supersede an earlier decision of the Department dated 13 November 2003.  The decision dated 13 November 2003 had itself superseded an earlier decision of the Department dated 11 February 1994 and, in turn, which had awarded an entitlement to the higher rate of the mobility component of DLA from and including 13 November 2003;

 

2.     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);

 

3.     the appellant will wish to consider what was said at paragraph 77 of C15/08-09 (DLA) concerning the powers available to the appeal tribunal and the appellant’s options in relation to those powers;

 

4.     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 respect, if the appellant's representative wishes to make specific reliance on the medical report from Mr H………., dated 13 September 2010, or any additional medical evidence, then a specific submission to that effect, either in writing or orally before the appeal tribunal, should be made; and

 

5.     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

 

 

 

21 March 2012