SS-v-Department for Social Development (DLA) [2012] NICom 274

Decision No:  C60/11-12(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 15 November 2010

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.    This is an application for leave to appeal from the decision of the disability appeal tribunal sitting at Dungannon on 15 November 2010.

 

2.    No request has been made for an oral hearing of the appeal and I consider that it can properly be determined without a hearing.

 

3.    I consider that the applicant has made out an arguable case and I grant leave to appeal.

 

4.    However, on consideration of the merits of the appeal, I disallow the appeal for the reasons which I set out below.

 

5.    In consequence, the applicant continues to satisfy the conditions of entitlement to the high rate of the mobility component of disability living allowance (DLA) from and including 17 November 2002.

 

REASONS

 

       Background

 

6.    The applicant claimed DLA on the basis of low back pain, depression and anxiety.  On 8 October 2002, she was awarded the high rate of the mobility component and the middle rate of the care component of DLA from and including 17 November 2002.

 

7.    On 2 April 2009, a request was made by the Department to the applicant’s general practitioner (GP) for a factual report on her current health.  The GP’s report suggested that the applicant’s self-care was adequate but that she had difficulty with mobility due to a back problem, walking with a protective gait.

 

8.    The Department then arranged for an examining medical practitioner (EMP) to visit the applicant’s home.  The EMP reported that the applicant was likely to be able to walk 50m before the onset of severe discomfort and could safely attend to most bodily functions without someone’s help, albeit slowly and with encouragement, but could not safely cope with hot pans because of low back pain and muscle spasm.  The EMP viewed the applicant as having moderate to severe restriction of mobility and mild to moderate care needs and stated that occasional falls and stumbles could be expected.

 

9.    The Department made a decision superseding the decision of 17 November 2002 on grounds of relevant change of circumstances and removing all entitlement to DLA from and including 17 September 2009.  The applicant appealed to a tribunal.

 

10.   Following an initial adjournment due to the inability of the applicant to attend because of a hospital admission, and a further adjournment on 10 May 2010 for the discharge letters relating to the applicant’s hospital admissions in February and March 2010, and a further adjournment on 2 August 2010 for the same purpose, the tribunal heard the appeal on 15 November 2010.

 

11.   At the hearing of 15 November 2010 the applicant was represented by Mr McKernan of Dungannon Citizens Advice Bureau.  The hospital discharge letters had not been obtained by the tribunal.  However, the tribunal proceeded to consider and determine the appeal.  The tribunal restored the award of the high rate of the mobility component on the basis that grounds for supersession were not established by the Department.  They maintained the decision removing the award of the middle rate of the care component on the basis of a relevant change of circumstances.

 

12.   On 9 December 2010 the applicant requested a statement of reasons for the tribunal’s decision.  This was issued to her on 11 March 2011.  On 8 April 2011, she made an application for leave to appeal to the Social Security Commissioner.  This was refused on 11 April 2011 in a decision notified to her on 14 April 2011.  She then made her application for leave to appeal directly to the Office of the Social Security Commissioners.

 

       Submissions

 

13.   On 10 May 2011, through her representative Mr McKernan, the applicant sought leave to appeal on four grounds.  These were:

 

(i)          the tribunal proceeded to hear the appeal without adequately examining the question of whether there were grounds for supersession;

 

(ii)         the tribunal’s decision to the effect that grounds for supersession existed which would permit a reduction in entitlement was not supported by evidence, although evidence would support a relevant change of circumstances in the sense that there was a deterioration in the applicant’s condition;

 

(iii)       the tribunal had not given adequate reasons for deciding that grounds for supersession existed, and the statement of reasons and record of proceedings from the appeal hearings of 2 August 2010 and 15 November 2010 were contradictory;

 

(iv)       the tribunal reached an irrational conclusion.

 

14.   On 8 June 2011, on behalf of the Department, Jim Hinton of Decision Making Services made observations on the grounds of application.  He opposed the grounds with the exception of ground (iii).

 

15.   The second limb of this ground is expressed by Mr McKernan somewhat cryptically.  It appears that what he means by saying that the records of the tribunal proceedings from 2 August 2010 and 15 November 2010 were “contradictory” is that the tribunal initially adjourned for particular medical evidence relating to hospital admissions in early 2010 but, when this was still not available, proceeded to determine the appeal.

 

16.   Mr Hinton expresses support for the application on that basis.  He submits that although the discharge letters which were not before the tribunal related to a period after the date of the appealed decision, they might have contained evidence relevant to the period under appeal.  He submits that there is nothing to indicate that the tribunal put to the appellant or her representative the view that the evidence was not necessary for comment.

 

17.   Mr McKernan’s first ground was also expressed somewhat obliquely.  I took from this ground that he was submitting that the question of whether grounds to supersede exist should be a threshold question to be considered initially and distinctly from evidence as to whether the applicant had mobility or care needs.  Mr Hinton had not understood that to be the point of law relied on and had therefore not commented on it.

 

18.   On 15 November 2011, I directed that Mr Hinton should comment on the first ground on the basis that it was submitted that the tribunal was required to make a preliminary assessment on the issue of grounds to supersede, treating this as a “threshold question”, before going on to make any determination on the “outcome question” of entitlement.  I referred him to relevant Commissioner jurisprudence.

 

19.   In a reply received on 1 December 2011, Mr Hinton submitted that in the circumstances of this case, it was clear that the tribunal had conducted a preliminary assessment of the issue of grounds to supersede before determining the question of entitlement to DLA.  Therefore, he submitted that the tribunal had not erred in the way in which it had dealt with the issue.

 

20.   On 29 December 2010, the applicant’s representative was invited to comment further on Mr Hinton’s observations within a further four weeks.  No reply was received.

 

       Assessment

 

       The issue of supersession

 

21.   By Article 11(1) of the Social Security (NI) Order 1998:

 

“Subject to paragraphs (3) and (4) and Article 36(3), the following, namely-

 

(a)            any decision of the Department under Article 9 or this Article, whether as originally made or as revised under Article 10; and

 

(b)            any decision under this Chapter of an appeal tribunal or a Commissioner,

 

may be superseded by a decision made by the Department, either on an application made for the purpose or on the Department’s own initiative.”

 

       By Article 11(3):

 

“Regulations may prescribe the cases and circumstances in which, and the procedure by which, a decision may be made under this Article.”

 

22.   The relevant regulations appear at Chapter II of the Social Security (Decisions and Appeals) Regulations (NI) 1999.  The grounds for supersession are set out in regulation 6.  These include relevant change of circumstances, anticipated relevant change of circumstances, error of law, ignorance of a material fact and mistake as to a material fact.

 

23.   Only where a ground for supersession arises may the Department alter an earlier decision which established entitlement to benefit.  Where a supersession decision is the subject of an appeal, the tribunal hearing the appeal must be satisfied that grounds for supersession exist before upholding the supersession decision.

 

24.   The point made in the applicant’s first ground concerns the approach to be taken by a tribunal to a supersession appeal.  This arises from the different approaches taken by Commissioners in Great Britain to the question of the evidence which should be considered in establishing whether grounds to supersede are present.

 

25.   In CSDLA/765/2004 Scottish Chief Commissioner May suggested that a hearing of a supersession appeal should initially be restricted to taking evidence relevant to a ground of supersession, with the implication that, if grounds for supersession were not established as a preliminary matter before any evidence on entitlement was heard, the appeal should succeed.  By contrast in CSDLA/637/2006 Scottish Commissioner Parker held that it was sensible that a tribunal should hear all the evidence, including that potentially relevant to current entitlement, before reaching a decision on supersession.  Commissioner Jacobs in England has given decisions to similar effect to that of Commissioner Parker, such as in CDLA/1934/04.

 

26.   The tribunal in the present case correctly identified that the first question was whether there had been a relevant change of circumstances which would enable the Department to supersede the decision of 17 November 2002 which had awarded high rate mobility and middle rate care.

 

27.   In addressing mobility the tribunal said:

 

“If we had to decide the Appellant’s entitlement to High Rate Mobility as a new claim on 17/9/2009 we would not have awarded High Rate Mobility.  We do not believe that the Appellant was virtually unable to walk in accordance with the legislation on 17/9/2009.  However, that is not the decision for this Tribunal.  This Tribunal has to decide if there has been an improvement in the Appellant’s functional ability.

 

We do not believe that the Department has discharged the burden of proving that there has been an improvement in the Appellant’s functional ability…”

 

28.   Therefore the tribunal allowed the appeal in so far as the decision superseding the high rate of the mobility component was concerned.

 

29.   Turning to care, the tribunal said:

 

“The first issue for the tribunal is whether there has been a relevant change of circumstances which would enable the Department to supersede the decision of 17/11/2002…  This Tribunal accepts as found in C4/04-05(DLA) that an improvement in functional ability can constitute a change of circumstances and if the Department can prove that there has been an improvement in functional ability in this case, then this is a correct basis on which to proceed.”

 

30.   In its discussion the tribunal reflected its assessment of the appellant’s evidence as not credible.  Ultimately however the tribunal placed most weight on the documentary evidence available to it.  The tribunal said:

 

“We accept the evidence of the General Practitioner factual report regarding self care and we accept the Examining Medical Practitioner’s evidence at Question 7 of his report…”.

 

31.   Therefore, the tribunal accepted that there were grounds to supersede the award of the middle rate of the care component. In so doing, the tribunal adopted the approach favoured by Commissioner Parker and Commissioner Jacobs and heard all the evidence before deciding the issue of grounds for supersession.

 

32.   The approach of Commissioner May would not have involved a hearing of the oral evidence on entitlement before deciding on the question of whether grounds for supersession were established.  Nevertheless, although the tribunal heard oral evidence on the appellant’s care needs and received reports from her which were not before the original decision-maker of the Department, they ultimately decided the question of whether there were grounds for supersession on the basis of material which had been before the Department when the decision to supersede was made.  This material was the GP factual report and the EMP report.

 

33.   These reports contained clear evidence that the applicant did not demonstrate a level of attention needs equivalent to the middle rate of the care component.  Therefore, whereas the tribunal did not approach supersession as a “threshold” issue, prior to considering oral evidence, had they adopted that approach, the same decision would inevitably have been reached.  Even if the approach they took was in error of law, it could not have amounted to a material error of law in the sense that it would have made a difference to the outcome.

 

34.   It follows that I do not need to try to resolve the different approaches taken by the Great Britain Commissioners for the purposes of the present appeal.  Nevertheless, Mr McKernan raises an important issue which will doubtless require a decision in a future case.

 

       Was the tribunal’s decision supported by evidence?

 

35.   Mr McKernan submits that the GP factual report and the EMP report from September 2009 does not show that there has been a relevant change of circumstances which would allow the Department to supersede its decision on 8 December 2002.

 

36.   The evidence underpinning that award was the applicant’s claim form of 24 June 2002 and the factual report of her GP dated 16 September 2002.  In her claim form the applicant stated that she required attention in connection with falls, moving indoors, getting in and out of bed, using the toilet, bathing, dressing, cooking a meal, cutting up food, with medication and with communication.  These needs arose from physical and mental health problems.  The GP report was to the effect that she required encouragement to prevent self-neglect or self-harm, and with difficulty managed getting in and out of bed, dressing, sitting and standing, using stairs and walking indoors.  The award of middle rate care was made on the basis of day time attention in connection with bodily functions.

 

37.   The GP report of 12 May 2009 commented that self-care seemed to be adequate.  The EMP reported that the applicant could safely perform bodily functions without someone’s help and indicated that intermittent low mood might cause her to neglect personal hygiene and nutrition.

 

38.   In assessing whether there has been an error of law, I am not concerned with personally assessing the correctness of the tribunal’s decision, but of assessing whether a reasonable tribunal could have made the decision it did.  It seems to me that the initial award was based primarily on the applicant’s self-assessment from 2002, as the GP factual report of that year was not entirely corroborative of her own account.  The evidence of 2009 indicated a level of need which was significantly different.  It is therefore not correct to say that there was insufficient evidence of a relevant change of circumstances.

 

       Adequacy of reasons and “contradictory” reasons

 

39.   Mr McKernan submits that the tribunal had not given adequate reasons for deciding that grounds for supersession existed, and the statement of reasons and record of proceedings from the appeal hearings of 2 August 2010 and 15 November 2010 were contradictory.

 

40.   From the above discussion it is evident that the tribunal addressed the correct issues and explained the basis of their decision.  The tribunal firstly found that grounds for superseding the mobility component did not exist.  In relation to grounds for superseding the care component, it explains:

 

“We accept the evidence of the General Practitioner factual report regarding self care and we accept the Examining Medical Practitioner’s evidence at Question 7 of his report…. We find that the Appellant is not entitled to the Care Component of Disability Living Allowance as there has been an improvement in her functional ability since the initial decision of 8/10/2002…”

 

41.   The tribunal could not have made its reasoning any clearer.

 

42.   The “contradictory” record of proceedings point is really a point addressed to the fairness of the proceedings.

 

43.   It is evident that the identically constituted tribunal adjourned the appeal in May 2010 as “GP notes and records did not include details of the recent hospital admissions in February and March 2010.  Need the discharge letters from both hospital admissions above.  Any specialist report relating to the possibility of spinal surgery also to be requested.”

 

44.   The identically constituted tribunal also adjourned the hearing on 2 August 2010.  It indicated at that date that a report of an MRI scan of 9 March 2010 was not in the papers, nor was there a discharge note from March 2010 and no copy of the orthopaedic referral letter.  The tribunal believed that it might be necessary to obtain these documents and sought comment from the representatives.  The applicant’s representative indicated that he felt that the tribunal needed to deal with the supersession issue first, but is not recorded as commenting one way or the other on the tribunal’s proposed course of action.  The tribunal adjourned and the applicant’s representative was asked to contact her GP to try to ensure that all the medical evidence was provided on the next occasion.

 

45.   Mr Hinton suggests that fairness required that the applicant’s representative should have been given the opportunity to comment on the absence of this evidence on the date when the hearing eventually took place and to seek further adjournment.  He refers to C4/10-11(II) where the Chief Commissioner recommended that, if hospital or medical notes were not available to a tribunal, the position should be explained to the claimant and his representative for comment, in order that the tribunal could make an informed decision either to continue with the hearing or to adjourn the case until the relevant notes were available.

 

46.   This is not a case where medical notes were not available.  The date of the supersession decision which is the subject of the appeal was 17 September 2009. By Article 13(8)(b) of the Social Security (Northern Ireland) Order 1998, “in deciding an appeal under this Article, an appeal tribunal … shall not take into account any circumstances not obtaining at the time when the decision appealed against was made”.  It is evident that the documents sought related to a period after the date of decision.  It does not mean that they were not relevant to establishing circumstances obtaining when the decision was made.  However, the medical notes relating to the relevant period were available.  It can only be speculative that the missing documents would have added to the tribunal’s knowledge of the relevant period.

 

47.   It is also evident that the adjournments were at the tribunal’s initiative and not requested by the applicant or her representative.  Mr McGlade, who represented at the adjourned hearing on 2 August 2010 emphasised that the supersession issue required to be considered before any new evidence, with the implication that he considered that it would have limited relevance.

 

48.   I do not consider that an arguable case of procedural unfairness has been made out and I reject this submission.

 

       Irrationality

 

49.   It is not arguable that the tribunal has made an irrational decision.

 

Conclusion

 

50.   I reject all the grounds submitted by the applicant and I dismiss the appeal.

 

51.   The decision of the appeal tribunal to the effect that the Department has not established grounds to supersede the decision awarding the high rate of the mobility component from and including 17 November 2002 is confirmed.  The decision of the appeal tribunal to the effect that the Department has established grounds to supersede the decision awarding the middle rate of the care component from and including 17 September 2009 is also confirmed.

 

 

(signed):  Odhrán Stockman

 

Commissioner

 

 

 

17 April 2012