VB-v-Department for Social Development (II) [2012] NICom 268

Decision No:  C1/11-12(II)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

INDUSTRIAL INJURIES DISABLEMENT BENEFIT

 

 

Appeal to a Social Security Commissioner

on a question of law from a Tribunal's decision

dated 6 April 2011

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.    Having considered the circumstances of the case and any reasons put forward in the request for a hearing, I am satisfied that the appeal can properly be determined without a hearing.  The decision of the appeal tribunal dated 6 April 2011 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, and there may be further findings of fact which require to be made.  An appeal tribunal which has one or two medically qualified panel members is best placed to assess medical evidence and address medical issues arising in an appeal.  Further 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 his entitlement to industrial injuries disablement benefit (IIDB) 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 21 September 2010 a decision-maker of the Department made two decisions as follows:

 

(i)          The appellant was suffering from a loss of faculty as a result of a relevant accident which took place on 24 August 2005.  The relevant loss of faculty was impaired and painful spinal movements.  The degree of disablement was 20%.  The period of the assessment commenced on 7 December 2005 and continued to 24 August 2007.  The assessment was final.  The appellant was not entitled to IIDB from 7 December 2005 to 24 August 2007(both dates included).  This was because his claim for that period, made on 26 April 2010, had not been made within the prescribed statutory time limits for bringing such a claim.

 

(ii)         The appellant was suffering from a loss of faculty as a result of a relevant accident which took place on 20 August 2009.  The relevant loss of faculty was impaired and painful back movements, pain right knee, anxiety and low mood.  The degree of disablement was 3%.  The period of the assessment commenced on 3 December 2009 and continued to 1 October 2011.  The assessment was final.  The appellant was not entitled to IIDB from and including 3 December 2009.  This was because the extent of the loss of faculty was less than 14%.

 

6.    Appeals against both decisions dated 21 September 2010 were received in the Department on 11 October 2010.  Following receipt of further information from the appellant and further advice from a Departmental medical officer, the appellant was advised on 24 November 2010 that the decisions dated 21 September 2010 had been looked at again but had not been changed.

 

7.    Following an adjournment of a ‘paper’ hearing of the appeal on 3 February 2011, an oral hearing took place on 6 April 2011.  The appellant was present and, while unrepresented, had the benefit of a written submission prepared by the Citizens Advice organisation.  The appeal tribunal issued a single Decision Notice in the following terms:

 

‘Appeal disallowed.

 

The decision of 21.9.10 is confirmed.’

 

8.    On 1 July 2011 an application for leave to appeal was received in the Appeals Service (TAS) from the appellant was now represented by Mr Hatton from the Law Centre (Northern Ireland).  On 21 July 2011 leave to appeal to the Social Security Commissioner was granted by the legally qualified panel member (LQPM).  In granting leave to appeal the LQPM identified, as a point of law:

 

‘As set out in Mr Hatton’s application’

 

       Proceedings before the Social Security Commissioner

 

9.    On 25 August 2011 the appeal was received in the Office of the Social Security Commissioners.  On 13 September 2011 written observations on the appeal were sought from Decision making Services (DMS).  Written observations were received on 6 October 2011.  In these written observations, Mr Kirk, for DMS, supported the appeal on certain of the grounds identified by Mr Hatton.  On 7 November 2011 the written observations were shared with the appellant and Mr Hatton.  On 7 December 2011 written observations in reply were received from Mr Hatton.

 

       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.”

 

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

 

       One appeal or two?

 

12.   As was noted above, the decision-maker of the Department made two decisions on 21 September 2010.  Appeals against both decisions dated 21 September 2010 were received in the Department on 11 October 2010.  For the purposes of the appeal tribunal hearing, the Department prepared two written submissions.  Accordingly, and until the date of the oral hearing on 6 April 2011, there were two extant appeals.

 

13.   For the purpose of the substantive oral hearing of the appeal, the appellant had the advantage of a written submission prepared on his behalf by the Citizens Advice organisation.  In the written submission it was noted that:

 

‘At page 7, para 16 the department submission deals with the issue of non application within the prescribed time limits.  We concede these grounds as the department is correct on this point of law.  However the client would like to state that his accident of 2005 has been direct link [sic] to his current claim and injuries that he has suffers [sic].’

 

14.   In the Record of Proceedings for the oral hearing, the following is recorded:

 

‘[The claimant] to Legally Qualified Member

 

… It is 2^nd accident 20.8.2009.  First accident damaged back but better by 2007, made worse 2009.’

 

15.   The statement of reasons for the appeal tribunal’s decision begins with the following paragraph:

 

‘1.  (The claimant) is not appealing the decision of 21.9.1010 reference his accident on 24.8.2005.  He accepts he had fully recovered from this by 2007.’

 

16.   In the written application for leave to appeal to the Social Security Commissioner, Mr Hatton made a specific submission in connection with the appellant’s appeal rights.  Mr Hatton noted that the appellant had made two claims for IIDB and had appealed against both decisions disallowing him entitlement to that benefit, albeit on different bases.  Mr Hatton submitted that the appellant had indicated that he did not state that he was not appealing against a decision in connection with the accident dated 24 August 2005 nor did he state that he had fully recovered from that accident.  Mr Hatton submitted that if the appellant had ‘conceded’ that decision in the sense of withdrawing his appeal against it, then the appeal tribunal should have recorded this concession and expressly record its decision, even if that decision was to adopt the decision of the Department.  Alternatively if the tribunal accepted that the appeal was withdrawn then the withdrawal should have been reflected in the record of proceedings or the statement of reasons.

 

17.   In the written observations on the appeal, Mr Kirk has responded to this issue in the following way:

 

‘It is I submit clear … that the tribunal have taken (the claimant’s) comment as a withdrawal of his appeal against the decision relating to the accident of 24 August 2005.  Before the tribunal could reach this conclusion there was I submit, an onus upon it to clearly ask (the claimant) if he was withdrawing his appeal against this decision.  There is nothing in the record of proceedings to indicate that the tribunal ever asked (the claimant) if it was his intention to withdraw his appeal.  I note that in his oral evidence to the tribunal (the claimant) had also indicated that the accident of 2009 had exacerbated his back condition and the same point had been made at page 3 of the submission prepared by the Citizen’s Advice Bureau (CAB).  The fact that this was raised would in my opinion clearly indicate that (the claimant) had serious doubts as to the conclusions of the Department’s Medical Officer (MO) regarding the duration of his injury from his first accident and would therefore not indicate an intention to withdraw the appeal.  For those reasons I submit that the tribunal has erred in its assumption that (the claimant) wished to withdraw his appeal and was therefore required to give a formal decision in relation to the accident of 24 August 2005.  Alternatively if it the tribunal was of the view that (the claimant’s) statement was meant as an intention to withdraw his appeal they should have sought clarification as to whether or not this was the case, by not doing so it has failed in its inquisitorial role and as such has erred in law.’

 

18.   I agree with the submissions made by both Mr Hatton and Mr Kirk in connection with this issue.  There were two extant appeals before the appeal tribunal at the date of the oral hearing on 6 April 2011.  The appeal tribunal should, in my view, have been more proactive in ascertaining the true intentions of the appellant with respect to both decisions, clarifying the implications of any specified intention to withdraw an appeal, and recording either the decision to withdraw or, in the absence of an intention to withdraw, record its formal decision in connection with the extant decision under appeal.  The appeal tribunal’s failures in this respect render its decision as being in error of law.

 

       The evidence which post-dated the decision under appeal

 

19.   In the statement of reasons for its decision, the appeal tribunal makes reference to two pieces of evidence from the appellant’s general practitioner records, dated 14 January 2011 and 21 October 2010.  In respect of the first entry the appeal tribunal has added:

 

‘… This is after the date of decision.  It does not say the mental health problems are due to the relevant industrial accident.’

 

20.   In respect of the second entry the appeal tribunal has added:

 

‘The [sic] post dates the decision.  It does not state the MRI findings are due to the relevant industrial accident.’

 

21.   In the written application for leave to appeal, Mr Hatton challenged the manner in which the appeal tribunal addressed the evidence which post-dated the decision under appeal, citing, in support of a submission that an appeal tribunal is required to determine whether the evidence is related to the period under consideration, my decision in C2/10-11(IB).

 

22.   In his written observations on the appeal, Mr Kirk has addressed this issue, as follows:

 

‘In C2/10-11(IB) the Commissioner considered a case where a tribunal refused to consider evidence the claimant had adduced extracts from his General Practitioner notes and records.  In that case the tribunal refused to consider that evidence as it post dated the decision under appeal.  Commissioner Mullan held that the tribunal had erred in law in failing to determine whether evidence that post dated the decision under appeal actually related to the period that was under appeal.

 

In the present case the tribunal has referred to evidence that post dated the decision and the reasons for not accepting this evidence appears to be that the evidence did not make specific reference to the accidents.  It is my submission that by not making specific reference to the accidents does not necessarily mean that the reports do not relate to these accidents.  There was an onus on the tribunal to make findings as to whether or not the reports related to the period in question and whether or not they could be linked to the relevant accidents, in failing to do so the tribunal has erred in law.’

 

23.   Once again, I am in agreement with the submissions of both representatives in connection with this issue and am in agreement that the appeal tribunal’s approach to the evidence which post-dated the decision under appeal did not accord with the guidance given in C2/10-11(IB).

 

       Other issues arising

 

24.   In the written application for leave to appeal which was before the LQPM, Mr Hatton raised other issues relating to the conclusions arrived at by the appeal tribunal in connection with the assessment of disablement and its assessment of certain of the medical evidence which was before it.  In reply to these issues, Mr Kirk has submitted that:

 

‘Tribunal’s conclusions

 

At paragraph 3 of the reasons for decision the tribunal has as noted by Mr Hatton confirmed the Department’s decision of 21 September 2010.  In confirming that decision the tribunal had accepted that (the claimant) had an assessment of 3% disablement relating to his mental health.  That 3% disablement had been awarded by the MO who examined (the claimant) on 10 September 2010.  In the opinion of the MO (the claimant) had impaired psychological function relating to anxiety and depression.  At paragraph 4 of the reasons for decision the tribunal refer to the submission of the CAB.

 

In their submission the CAB noted that (the claimant) took issue with the MO’s conclusions as to the degree of his mental health problems and CDLA/2849/2000 was cited in support of this contention.  At paragraph 4(a) the tribunal concluded by stating that it did not accept that (the claimant’s) accident of 20.08.2009 was one that would cause him post traumatic stress disorder (PTSD).  In reaching this conclusion the tribunal was not stating that (the claimant) did not have any mental health problems as it had clearly accepted that he had impaired psychological function but it was stating that it did not find that he suffered from PTSD.  This, I submit, was a conclusion the tribunal was entitled to reach and in doing so has not erred in law.

 

Tribunal’s assessment of medical evidence

 

Having considered the reasons for decision I would agree that the tribunal make no direct reference to the evidence of Dr McC…….  I would however submit that as the findings of the MO were in agreement with the evidence of Dr McC….. that the tribunal’s failure to make reference to this evidence would not have materially affected the decision, therefore this would not vitiate the decision.

 

As noted by Mr Hatton the submission from Fermanagh CAB which was handed in at the tribunal made two references to evidence from U.. J……... Those references were dated 21 October 2010 and 1 October 2010 [sic].  In its reasons for decision the tribunal make specific reference to the evidence dated 21 October 2010.  However it did not make any such reference to the evidence dated 1 February 2010.  This was evidence which predated the date of decision under appeal in this case.  Therefore I submit that there was an onus upon the tribunal to consider this evidence and to make reference to it its reasons for decision and decide whether it has accepted or rejected the evidence.  Its failure to do so renders the decision erroneous in law.

 

At paragraph 4(a) of the reasons for decision the tribunal give its reasons for not placing any reliance upon the evidence contained in the letter from Mr R……. F…….  The tribunal found that Mr F…….l was not medically qualified and that therefore he was in no position to give a diagnosis of PTSD.  As noted above this was an oral hearing and (the claimant) was present.  There is nothing in the record of proceedings which would indicate that the tribunal put its reservations regarding Mr F……..’s qualifications to (the claimant) for comment.  Whilst I accept that the record of proceedings is not a verbatim record I would expect it to contain any such interaction as to Mr F……….’s qualification.  In the absence of any evidence to the contrary I would assume that the tribunal did not put its reservations as to Mr F……..’s qualifications to (the claimant) for comment.  I would concur with Mr Hatton and state that the tribunal’s failure to do this was erroneous.

 

At paragraph 4(b) the tribunal has given its reasons for rejecting the evidence contained in the letter from Dr J……… [sic].  I would submit that the tribunal has clearly stated that it could find nothing in that letter which would call into doubt the findings of the Department’s MO or indeed the findings of the Medical Panel members who examined (the claimant) at the hearing of 6 April 2011.  That conclusion of the tribunal was I submit one that it was entitled to reach.  For that reason I submit that the tribunal has not erred in its treatment of the evidence from Dr J……….. [sic].’

 

25.   I agree with the submissions made by Mr Kirk in connection with the additional matters raised by Mr Hatton.

 

       Disposal

 

26.   The decision of the appeal tribunal dated 6 April 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.  Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.

 

(i)          There remain two decisions under appeal to the appeal tribunal, both dated 21 September 2010, as follows:

 

(a)        the appellant was suffering from a loss of faculty as a result of a relevant accident which took place on 24 August 2005.  The relevant loss of faculty was impaired and painful spinal movements.  The degree of disablement was 20%.  The period of the assessment commenced on 7 December 2005 and continued to 24 August 2007.  The assessment was final.  The appellant was not entitled to IIDB from 7 December 2005 to 24 August 2007(both dates included).  This was because his claim for that period, made on 26 April 2010, had not been made within the prescribed statutory time limits for bringing such a claim;

 

(b)        the appellant was suffering from a loss of faculty as a result of a relevant accident which took place on 20 August 2009.  The relevant loss of faculty was impaired and painful back movements, pain right knee, anxiety and low mood.  The degree of disablement was 3%.  The period of the assessment commenced on 3 December 2009 and continued to 1 October 2011.  The assessment was final.  The appellant was not entitled to IIDB from and including 3 December 2009.  This was because the extent of the loss of faculty was less than 14%;

 

(ii)         the appellant and/or his representative is to indicate to TAS, at the earliest possible opportunity, whether he wishes to continue his appeals against both decisions dated 21 September 2010;

 

(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

 

 

 

26 March 2012