VMvL-v-Department for Social Development (DLA) [2012] NICom 295

Decision No:  C30/11-12(DLA)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

DISABILITY LIVING ALLOWANCE

 

 

Appeal to a Social Security Commissioner

on a question of law from a Tribunal's decision

dated 31 January 2011

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.    The decision of the appeal tribunal dated 31 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.  The appeal tribunal should note, however, that the error of law relates to a procedural irregularity which I consider was capable of making a material difference to the outcome or fairness of the proceedings but which was outside the control of the appeal tribunal.

 

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 20 August 2010 a decision-maker of the Department decided that the appellant should not have an entitlement to either component of DLA from and including 18 June 2010.  A letter of appeal against the decision dated 20 August 2010 was received in the Department on 8 September 2010.

 

7.    The appeal tribunal hearing took place on 31 January 2011.  The appeal tribunal proceeded to conduct the proceedings by way of a ‘paper’ hearing.  This was because the appellant had signed and returned Form REG2(i)d on 6 November 2010 indicating that he was content for the appeal to proceed without an oral hearing.  The appeal tribunal disallowed the appeal and confirmed the decision dated 20 August 2010.  On 13 June 2011 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.  On 24 June 2011 the application for leave to appeal was refused by the legally qualified panel member.

 

       Proceedings before the Social Security Commissioner

 

8.    On 20 July 2011 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 18 October 2011 observations were sought from Decision Making Services (DMS).  In these written observations, Mr Collins, for DMS supported the application on the grounds cited in the application for leave to appeal.  In addition Mr Collins addressed two questions which had been forwarded by the legal officer.  Written observations were shared with the appellant on 23 November 2011.  Also on 23 November 2011 I granted leave to appeal.  In granting leave to appeal, I gave, as a reason, that an arguable issue arose as to whether there had been a procedural or other irregularity capable of making a material difference to the outcome or fairness of the proceedings.

 

       Errors of law

 

9.    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.

 

10.   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 error of law?

 

11.   In the written observations on the application for leave to appeal, Mr Collins has submitted that:

 

‘In a further letter received in the Commissioner’s Office on 21 July 2011 (the claimant) states that the tribunal’s reasons do not correspond with information contained in his Doctor’s records.  ((The claimant) had forwarded a Patient Summary with this letter which provided details of his medical history and prescribed medication.)

 

The record of proceedings from the paper hearing on 31 January 2011 indicates the tribunal considered the Department’s submission and documents attached.  In addition the clerk to the tribunal advised that (the claimant) had returned the form asking for a paper hearing and there were previous papers held by the clerk.  I would submit that this confirms (the claimant’s) contention that the tribunal did not have (the claimant’s) medical records before it.

 

I rang The Appeals Service (TAS) on 20 October 2011 to confirm its procedure in relation to obtaining a claimant’s GP records (...)  TAS advised that a letter is issued to the claimant prior to the hearing asking for the GP’s details and the claimant’s permission to obtain the records.  I was unable to obtain a copy of (the claimant’s) written response to the request regarding his GP but TAS advised me that their computer records indicate his medical records were received on 07 December 2010 but for some unknown reason they do not appear to have been included for the tribunal’s consideration.

 

As (the claimant) gave permission to TAS to obtain his medical records he clearly had a legitimate expectation that the tribunal would have considered the contents of his GP notes and would have subsequently been aware of his various medical conditions and the treatment involved.  Whilst it is the needs arising from the condition that determines entitlement to DLA I would submit that had the tribunal been fully aware of (the claimant’s) circumstances they may have reached a different conclusion or alternatively the may have sought clarification between the discrepancies in the medical records and the GP report.

 

In view of this I would submit that there has been a breach of the rules of natural justice which would constitute an error in law.  Consequently I would support the ground of appeal cited by (the claimant).’

 

12.   I am grateful to Mr Collins for this concession and for the forensic investigation undertaken by him in connection with the issue of whether the appellant’s general practitioner (GP) records were before the appeal tribunal.  The appellant had given his consent to the release of his GP records for consideration by the appeal tribunal.  The relevant records had been obtained but, for whatever reason, do not appear to have been before the appeal tribunal.  I am in agreement with Mr Collins that the failure to place the appellant’s GP records before the appeal tribunal, when the appellant’s legitimate expectation was that the content of the records would have been considered by the appeal tribunal, means that there has been a procedural or other irregularity capable of making a material difference to the outcome or fairness of the proceedings, Accordingly, the decision of the appeal tribunal must be set aside.

 

13.   Having found that the decision of the appeal tribunal has to be set aside on the basis of the reasoning set out above, I do not have to consider the appellant’s other grounds for appealing to the Social Security Commissioner nor do I have to consider the additional questions submitted by the legal officer to DMS.  I am grateful, however, to Mr Collins for the work which he has undertaken in considering those additional issues.

 

       Disposal

 

14.   The decision of the appeal tribunal dated 31 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.

 

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

 

(i)          the decision under appeal is a decision of the Department, dated 20 August 2010, which decided that the applicant was not entitled to DLA from and including 18 June 2010;

 

(ii)         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);

 

(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

 

 

 

11 June 2012