RD-v-Department for Social Development (DLA) [2012] NICom 275

Decision No: C64/11-12(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 17 February 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.

 

2.    The decision of the appeal tribunal dated 17 February 2010 is not in error of law.  Accordingly, the appeal to the Social Security Commissioner does not succeed.  The decision of the appeal tribunal to the effect that the appellant is not entitled to either component of disability living allowance (DLA), from and including 25 September 2009, is confirmed.

 

       Background

 

3.    On 12 November 2009 a decision-maker of the Department decided that the appellant was not entitled to either component of DLA from and including 25 September 2009.  An appeal against the decision dated 12 November 2009 was received in the Department on 23 November 2009.

 

4.    The appeal tribunal hearing took place on 17 February 2010.  The appellant was present, was accompanied by his mother and was represented, as he is now in the proceedings before the Social Security Commissioners, by Mr Keogh from the Citizens Advice organisation.  The Department was not represented at the oral hearing of the appeal.  The appeal tribunal disallowed the appeal and confirmed the decision of the Department dated 12 November 2009.  On 21 May 2010 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.  On 4 June 2010 the application for leave to appeal was refused by the legally qualified panel member.

 

 

       Proceedings before the Social Security Commissioner

 

5.    On 30 July 2010 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 15 September 2010 observations on the application were sought from Decision Making Services (DMS) and these were received on 11 October 2010.  In these written observations, Mrs Hulbert, for DMS, opposed the application on the grounds cited by the appellant’s representative.  The written observations were shared with the appellant and his representative on 3 November 2010.  On 17 February 2011 I directed that an oral hearing of the application would not be required.

 

       Errors of law

 

6.    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.

 

7.    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?

 

8.    In the application for leave to appeal, Mr Keogh has submitted that the decision of the appeal tribunal was in error of law on the basis of a number of submitted grounds.  I shall address each of these cited grounds in turn.

 

9.    Before doing so, I would note that the record of proceedings for the appeal tribunal hearing is comprehensive.  It sets out in considerable detail the oral and documentary evidence which it considered and the submissions which had been made.  In a similar way the statements of reasons for the appeal tribunal’s decisions with respect to both the care and mobility components of DLA have been prepared with commendable care and attention.

 

10.   Mr Keogh comments on the present tense use of language in the statements of reasons for the appeal tribunal’s decisions.  He submits that the appeal tribunal appear to have been assessing the appellant’s evidence concerning his disabilities and the limitations which they cause at the date of the oral hearing of the appeal and not at the date of the decision which was subject to appeal.  Further, Mr Keogh suggests that the appeal tribunal appeared to have failed to take into account the lapse of time between the date on which the claim form to benefit was submitted and the date of the oral hearing of the appeal.

 

11.   In C2/10-11(IB), I stated the following, at paragraphs 22 to 26:

 

‘22.     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.’

 

23.     Article 13(8)(b) exhorts appeal tribunals to concentrate on the decision under appeal, and, more particularly, the date of the decision under appeal.  The applicability of Article 13(8)(b) has to be considered, however, in the context of the social security appellate structure.  It is inevitable that the appeal tribunal hearing will take place at a date later to the date of the decision under appeal.  In the majority of cases, the date of the appeal tribunal hearing will be at least some months after the date of the decision under appeal and, in some rare instances, may take place at a date some years after the date of the decision under appeal.

 

24.     It is equally often the case that the appellant, or any representative whom the appellant might have and, in rare instances, the Department, as the other party to the proceedings, may also have, between the date of the decision under appeal and the date of the appeal tribunal hearing, sought to adduce further evidence considered to be relevant to the issues arising in the appeal.  Moreover, the appeal tribunal itself has the legislative power, under regulation 51(4) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, to adjourn an appeal tribunal of its own motion for the purpose, for example, of production of additional evidence.

 

25.     In oral hearings, where the appellant is in attendance, the appeal tribunal will also usually hear the oral evidence of the appellant given, therefore, at a time which post-dates the decision under appeal.

 

26.     In short, therefore, an appeal tribunal may find that there is before it evidence which post-dates the decision under appeal.  The question arises, therefore, as to how the appeal tribunal should deal with such evidence in light of the rule set out in Article 13(8)(b) of the Social Security (NI) Order 1998.’

 

12.   I then made reference to the decisions of Commissioner Jacobs in R(DLA) 2/01 and R(DLA) 3/01.  In R(DLA) 3/01, Commissioner Jacobs considered the effect of section 12(8)(b) of the Social Security Act 1998, the equivalent in Great Britain to Article 13(8)(b) of the Social Security (Northern Ireland) Order 1998, in light of his comments in R(DLA) 2/01.  At paragraph 58 he stated:

 

‘Section 12(8)(b) limits an appeal tribunal’s jurisdiction by preventing it taking into account a fresh circumstance.  It is only concerned with evidence in this respect: evidence is not admissible unless it relates to circumstances obtaining at the date of the decision under appeal.  I stand by the statement of law that I set out in [R(DLA) 2/01] para.9 … In relating later evidence to the time of the decision, the claimant’s evidence is admissible, although it will, like all evidence, have to be weighed by the appeal tribunal.’

 

13.   The decisions in R(DLA) 2/01 and R(DLA) 3/01 were considered by Commissioner Brown in C24/03-04(DLA).  In that case, the Commissioner stated, at paragraphs 6 to 7:

 

‘6.       I shall deal first with the third ground of appeal.  The ground is based on the provisions of Article 13(8)(b) of the Social Security (Northern Ireland) Order 1998.  That provision is as follows: -

 

“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.”

 

7.    This is a mandatory provision.  It prevents the Tribunal from taking account of circumstances not obtaining at the date of the decision under appeal.  It does not relate to evidence whenever it came into being, which is relevant to what the circumstances were up to the date of the relevant decision.  It does not prevent the Tribunal taking into account evidence obtained after the decision under appeal was made, for the purpose of drawing inferences as to the circumstances obtaining when or before the decision was made.  For example, if a claimant tells the Tribunal that his situation now is the same as it was at the date of the decision under appeal and produces evidence as to his present walking ability, why should that latter evidence if accepted not be used to determine the circumstances at the date of the claim?

 

       The Tribunal in deciding the appeal must not take into account circumstances which did not obtain at the time of the decision under appeal.  However, it is entitled to take account of any evidence which indicates what those circumstances were.’

 

14.   Looking at the appeal tribunal’s assessment of the evidence which was before it, it is clear that the appeal tribunal was not confining itself to consideration of the appellant’s circumstances at the date of the decision under appeal.  Indeed, the appeal tribunal’s extensive consideration of the evidence which was before it covered the period which it was obliged to consider.  Accordingly, I find no error of law on the basis of this submitted ground.

 

15.   Mr Keogh makes reference to the appeal tribunal’s finding that there were inconsistencies in the appellant’s own evidence and submits that the appeal tribunal appeared to doubt that the appellant had ever suffered from his claimed problems, drew an adverse inference from the withdrawal, at the oral hearing of the appeal, of any claim to entitlement to the higher rate of the mobility component of DLA, and raised further doubts concerning the appellant’s evidence relating to his ability to drive.  Mr Keogh submitted that such inconsistencies should have been put to the appellant for his comment.

 

16.   In C14/02-03(DLA), Commissioner Brown, at paragraph 11, stated:

 

‘ … there is no universal rule that a Tribunal must always explain its assessment of credibility.  It will usually be enough for a Tribunal to say that it does not believe a witness.’

 

17.   Additionally, in R3/01(IB)(T), a Tribunal of Commissioners, at paragraph 22 repeated what the duty is:

 

‘We do not consider that there is any universal obligation on a Tribunal to explain its assessment of credibility.  We disagree with CSIB/459/97 in that respect.  There may of course be occasions when this is necessary but it is not an absolute rule that this must always be done.  If a Tribunal makes clear that it does not believe a claimant’s evidence or that it considers him to be exaggerating this will usually be sufficient.  The Tribunal is not required to give reasons for its reasons.  There may be situations when a further explanation will be required but the only standard is that the reasons should explain the decision.  It will, however, normally be a sufficient explanation for rejecting an item of evidence, including evidence of a party to an appeal, to say that the witness is not believed or is exaggerating.’

 

18.   This reasoning was confirmed in CIS/4022/2007. After analysing a series of authorities on the issue of the assessment of credibility, including R3/01(IB)(T), the Deputy Commissioner (as he then was) summarised, at paragraph 52, as follows:

 

‘In my assessment the fundamental principles to be derived from these cases and to be applied by tribunals where credibility is in issue may be summarised as follows: (1) there is no formal requirement that a claimant's evidence be corroborated – but, although it is not a prerequisite, corroborative evidence may well reinforce the claimant's evidence; (2) equally, there is no obligation on a tribunal simply to accept a claimant's evidence as credible; (3) the decision on credibility is a decision for the tribunal in the exercise of its judgment, weighing and taking into account all relevant considerations (e.g. the person's reliability, the internal consistency of their account, its consistency with other evidence, its inherent plausibility, etc, whilst bearing in mind that the bare-faced liar may appear wholly consistent and the truthful witness's account may have gaps and discrepancies, not least due to forgetfulness or mental health problems); (4) subject to the requirements of natural justice, there is no obligation on a tribunal to put a finding as to credibility to a party for comment before reaching a decision; (5) having arrived at its decision, there is no universal obligation on tribunals to explain assessments of credibility in every instance; (6) there is, however, an obligation on a tribunal to give adequate reasons for its decision, which may, depending on the circumstances, include a brief explanation as to why a particular piece of evidence has not been accepted.  As the Northern Ireland Tribunal of Commissioners explained in R 3/01(IB)(T), ultimately "the only rule is that the reasons for the decision must make the decision comprehensible to a reasonable person reading it".’

 

19.   It is important to recall the remarks made by Mrs Commissioner Brown at paragraph 4 of her decision in R(DLA) 3/04, where she stated:

 

‘I should state at the outset that the weight to be given to any evidence is completely a matter for the Tribunal.  The weight to be given to an item of evidence is a matter of fact.  That means that I can disturb it only if that conclusion as to weight is one which no reasonable Tribunal could have reached.

 

20.   In the instant case, the appeal tribunal’s assessments of the appellant’s own evidence, and the appeal tribunal’s conclusions with respect to that evidence, are in keeping with the principles set out in the case-law of the Social Security Commissioners.  Accordingly, I cannot find that the decision of the appeal tribunal is in error of law on the basis of this cited ground.  In any event, the appellant was represented by an experienced appeal tribunal representative who was given every opportunity to adduce evidence and make submissions in connection with the issues arising in the appeal.  Mr Keogh could have addressed the identified inconsistencies during the course of the oral hearing of the appeal, raised further oral evidence from the appellant in rebuttal and made submissions in connection with the appellant’s own evidence.

 

21.   Mr Keogh submits that the appeal tribunal failed in it inquisitorial role in not raising with the appellant its concerns in relation to the failure to seek adjustments to medical machinery which was provided to the appellant in connection with his medical condition.  Once again, I cannot agree that the decision of the appeal tribunal was in error of law in respect of this cited ground.  The assessment of the evidence in connection with the relevant machine formed part of an overall detailed and extensive assessment of all of the evidence which was before the appeal tribunal.  It was the appeal tribunal’s assessment of all of the evidence rather than one particular piece of evidence which led to its conclusions that the conditions of entitlement to DLA were not satisfied.  Once again, I would note that Mr Keogh could have made submissions in connection with this issue and, had he felt that the evidence which was before the appeal tribunal was insufficient, could have made an application for an adjournment to seek additional evidence.

 

22.   Mr Keogh makes a submission in connection with the appeal tribunal’s conclusions with respect to the appellant’s ability to prepare a cooked main meal for himself.  More specifically, the appeal tribunal’s reference to the appellant suffering from a blackout while preparing his son’s breakfast showed a misunderstanding of the nature of the legislative test for entitlement based on an inability to prepare a cooked main meal.

 

23.   I have considered the passage in the statement of reasons in which reference is made to the appellant suffering a blackout while preparing his son’s breakfast.  Contrary to the submission made by Mr Keogh, and with respect to it, I cannot see how he has concluded that the appeal tribunal’s overall conclusion with respect to satisfaction of the legislative test with respect to the preparation of a cooked main meal, was predicated upon this one piece of evidence alone.  On the contrary it is clear that the appeal tribunal’s conclusion that the appellant did not have an entitlement to the lowest rate of the care component of DLA, based on an inability to prepare a cooked main meal, was based on its assessment of all of the evidence which was before it.

 

24.   Mr Keogh has also challenged the appeal tribunal’s general conclusions with respect to the appellant’s blackouts, submitting that the appeal tribunal was wrong to reject part of the appellant’s evidence as lacking credibility when there was clear other documentary evidence.  With respect to that submission, I cannot agree with it.  In my view, the appeal tribunal has given 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.

 

25.   Finally Mr Keogh has submitted that before the appeal tribunal there was clear evidence that the appellant had supervision requirements, both within his home and outdoors, at the date of the decision under appeal, based on his propensity to have blackouts.  In this regard, Mr Keogh submits that the appeal tribunal’s reference to a diagnosis by a consultant cardiologist of ‘simple fainting fits’ was taken out of context.  He submits that further exploration of this issue, and a possible adjournment to seek specialist evidence, could have confirmed that such blackout episodes could also have been resultant on the appellant’s problems with sleep apnoea.  Once again, I cannot accept this submission.  In my view, the appeal tribunal has placed the evidence from the consultant cardiologist in the context of its very rigorous assessment of all of the evidence which was before it.

 

Disposal

 

26.   The decision of the appeal tribunal dated 17 February 2010 is not in error of law.  Accordingly, the appeal to the Social Security Commissioner does not succeed.  The decision of the appeal tribunal to the effect that the appellant is not entitled to either component of DLA, from and including 25 September 2009, is confirmed.

 

 

(signed):  K Mullan

 

Chief Commissioner

 

 

 

4 April 2012