HJS-v-Department for Social Development (DLA) [2012] NICom 339

 

Decision No:  C31/12-13(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 21 June 2010

 

 

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.

 

2.     The decision of the appeal tribunal dated 21 June 2010 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.

 

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 17 December 2009 a decision-maker of the Department decided that the appellant should not have an entitlement to either component of DLA from and including 4 April 2010 on the basis of a renewal claim to that benefit.  A letter of appeal against the decision dated 17 December 2009 was received in the Department on 28 January 2010.

 

7.     The appeal was first listed for hearing on 14 April 2010.  The record of proceedings for the hearing which took place on 14 April 2010 shows that the appeal proceeded by way of a ‘paper’ hearing.  There was nothing erroneous about the Appeals Service (TAS) organising the appeal as a ‘paper’ hearing or the appeal tribunal proceeding in that manner.  This was because the appellant had, on 7 March 2010, returned Form REG2(i)D to TAS indicating that he was content for the appeal to proceed without an oral hearing.  The decision of the appeal tribunal on 14 April 2010 was to adjourn the hearing.  The reasons given for the adjournment were as follows:

 

‘GP records were requested but have not yet been received.  It would be unfair to proceed as (the claimant) is expecting us to have sight of his medical records.’

 

8.     The appeal was re-listed for hearing on 21 June 2010.  Once again, the appeal was by way of a ‘paper’ hearing.  The decision of the appeal tribunal was to disallow the appeal and to confirm the decision dated 17 December 2009.

 

9.     On 11 November 2010 an application for leave to appeal to the Social Security Commissioner was received in TAS.  On 26 November 2010 the application for leave to appeal was refused by the legally qualified panel member.

 

         Proceedings before the Social Security Commissioner

 

10.   On 6 January 2011 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 19 April 2011 observations on the application for leave to appeal were sought from Decision Making Services (DMS) and written observations were received on 11 May 2011.  In these written observations, Mr Kirk, for DMS, opposed the application on one of the grounds submitted by the appellant but supported the application on the second submitted ground and on a further identified ground.  Written observations were shared with the appellant on 20 May 2011.  On 16 August 2011 TAS was requested to provide certain additional information concerning the procedures for notification of appeals which was received on 23 August 2011.  There then followed a delay in the promulgation of this decision due to the fact that it was noted that certain of the issues arising in this appeal were also under consideration by another Commissioner in a different appeal.  As it turned out, the principles which emerged in the other decision did not impact on the issues arising in this appeal to the extent which was first thought.

 

         Errors of law

 

11.   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.

 

12.   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?

 

13.   In the written observations on the application for leave to appeal, Mr Kirk, for DMS, submitted that:

 

‘I note that in this case the GP notes and records had not been received and that therefore the tribunal were reliant upon the evidence gathered by the Department.  That evidence consisted of (the claimant’s) own evidence as contained in the self assessment forms and the GP factual report completed by Dr F……. (Tab No’s 1 and 2 of the scheduled documents).  I note that at question 31 of the self-assessment form (the claimant) had indicated that he would require someone with him out of doors as he is anxious on his own (page 14, Tab no 1).  At question 6 (c) of the GP factual report, Dr F………., was asked about (the claimant’s) ability to get around, including pain, gait, balance, breathlessness, visual loss and communication difficulties (Tab no 2).  In response to this question Dr F……….. stated “ambulatory”.  In the same report I note that in response to other questions asked Dr F………. had indicated that (the claimant) suffered from depression, that his mood was low but that his condition was controlled by medication.  At paragraph 3 of the record of proceedings the tribunal stated:

 

“The Tribunal noted the Medical report of Dr F…... which indicated (the claimant) was able to walk, and did not have trouble regarding pain, gait balance, breathlessness, visual loss or communication difficulties.  The Tribunal therefore concurred with the views of Dr F…….. that (the claimant’s) walking ability was not so severely restricted as to engage the mobility component of Disability Living Allowance.  (The claimant) was therefore able to walk.  We accept that he may have had some slight difficulty but this was neither significant nor impairing.  The Tribunal also found that there was no need for (the claimant) to be accompanied when out of doors.”

 

         At paragraph 2 of page 1 of the reasons for decision the tribunal stated:

 

“As indicated above, the Tribunal found that the Appellant was able to walk and there was no serious, physical or mental impairment that would have impacted upon his ability to walk.  We noted the Appellant’s observations that he was restricted to fifty metres but this was not supported by the clinical evidence before us today in the form of Dr F…………’s report.  For this reason, we found that the Appellant did not qualify for Disability living allowance under the High or Low Mobility Component.”

 

         As I have previously stated Dr F……….. had not been specifically asked to comment upon whether (the claimant) required guidance and/or supervision when out of doors.  Therefore I submit that it difficult to understand how the tribunal could have dismissed (the claimant’s) contended needs without seeking further evidence on this issue.

 

         With regard to the lower rate care component (main meal test) I note that in the self assessment forms (the claimant) had indicated that he would have problems with the preparation of a cooked main meal (Q48, page 28, Tab No 1).  At question 6(a) of the GP factual report Dr F………….. was asked to comment upon (the claimant’s) ability to self care.  In particular Dr F……….. was asked to comment upon washing, dressing, feeding, using the toilet, continence, ability to rise from the chair and ability to communicate and he replied able to self care.  However he was not asked any specific question in relation to the main meal test.  At paragraphs 5 and 7 of page 1 of the reasons for decision the tribunal stated:

 

“We noted (the claimant’s) suggestion that he required daytime supervision as a result of his condition.  He also claimed to require some help with the preparation of a cooked main meal.  This was not substantiated by the observations of Dr F…………., the General Practitioner.  As indicated above, we consider that Dr F……….’s report was objective and there was nothing to call it into question.  There may have been an element of over-statement on the part of (the claimant) but certainly we are satisfied on the evidence before us today that there was no physical or mental impairment that would have impacted on the care needs of (the claimant).

 

We are satisfied on the evidence before us today that he has full function of his upper limbs and there is nothing that would disable him from preparing a cooked main meal for on person.   …….”

 

         As there was no information in the GP factual report as to how (the claimant) could prepare a cooked main meal or to support the conclusion that (the claimant) has full function in all his limbs I would submit that the tribunal did not have any evidence to support its conclusion and has therefore erred in law.’

 

14.   I am in agreement with the submissions made by Mr Kirk.  The appeal tribunal has placed a particular emphasis on the factual report prepared by Dr F………..  The main reason for that emphasis was that the appeal tribunal did not have the appellant’s complete general practitioner (GP) records before it.  The appeal tribunal has emphasised the objectivity of that report and has arrived at a specific conclusion that the appellant’s submission that he required assistance in the preparation of a cooked main meal was not substantiated by the report completed by Dr F………..  As Mr Kirk submits, however, Dr F………… was never asked to comment on the appellant’s ability to prepare a cooked main meal.  Accordingly it could not be said that the appellant’s claimed difficulties with the preparation of a cooked main meal were not substantiated by the contents of the relevant report.

 

15.   Having concluded, for the reasons set out above, that the decision of the appeal tribunal was in error of law, I am not required to consider the submissions made by the appellant in the application for leave to appeal.  I believe that it is necessary to say something about those grounds, in particular the second submitted ground.

 

16.   As was noted above the appellant submitted, firstly, that the appeal tribunal had relied on evidence from a doctor in his GP practice whom the appellant did not see on a regular basis and had not seen for some time.  The appeal tribunal should have adduced evidence from the GP with whom he consulted on a more regular basis or from his consultant.  This submission was addressed by Mr Kirk in his written observations on the application for leave to appeal:

 

‘I note that in a letter stamped in by The Appeals Service (TAS) on 10 March 2010 (the claimant) had stated that Dr F………. was not his doctor.  At paragraph of page 1 of the record of proceedings the tribunal stated:

 

“He was noted to be 49 years old and had indicated in a letter attached to the papers that Dr F………… was not his doctor.  He had not seen this doctor in about three or four years.  The Tribunal noted that the doctor who completed the General Practitioner Report attached to the Submission Papers herein, would have had access to the same information that Dr L… M…… would have had and was therefore able to complete the Report without difficulty.”

 

         In the above the tribunal has I submit clearly noted the comments made by (the claimant) regarding the fact that he was not familiar with Dr F……...  The tribunal then moved on to explain why it decided to place weight upon the report of Dr F……. despite (the claimant’s) comments.  I would further state that the tribunal had correctly noted that Dr F………. did not need any personal knowledge of (the claimant) as he would have consulted (the claimant’s) medical records prior to completing the factual report.  At paragraph 8 of the Northern Ireland Commissioner’s decision C23/02-03(DLA) Commissioner Brown stated:

 

“.. Any doctor giving a report in the circumstances does not have to have any prior personal knowledge of the patient.  Consultants prepare reports for court cases without such knowledge and medical practitioners preparing reports for claims for state benefit are equally not required to have any prior personal knowledge of the patient.”

 

Therefore I would submit that the tribunal were entitled to accept the evidence of Dr F…………. in the factual report, that it has not erred as contended and that there is no merit in this ground of appeal.’

 

17.   Once again I am in agreement with Mr Kirk and for the reasons set out by him above conclude that there is no merit in the first ground cited by the appellant.

 

18.   The appellant has also submitted that he should have been informed of the date of the second hearing of the appeal arguing that if he had known of the date of the hearing he would have attended.

 

19.   Regulation 39 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, provides that:

 

‘Choice of hearing

 

39.—(1) Where an appeal or a referral is made to an appeal tribunal the appellant and any other party to the proceedings shall notify the clerk to the appeal tribunal, on a form approved by the Department, whether he wishes to have an oral hearing of the appeal or whether he is content for the appeal or referral to proceed without an oral hearing.

 

(2) Except in the case of a referral, the form shall include a statement informing the appellant that, if he does not notify the clerk to the appeal tribunal as required by paragraph (1) within the period specified in paragraph (3), the appeal may be struck out in accordance with regulation 46(1).

 

(3) Notification in accordance with paragraph (1)—

 

          (a) if given by the appellant or a party to the proceedings other than the Department, must be sent or given to the clerk to the appeal tribunal within 14 days of the date on which the form is issued to him; or

 

          (b) if given by the Department, must be sent or given to the clerk to the appeal tribunal—

 

               (i) in the case of an appeal, within 14 days of the date on which the form is issued to the appellant, or

 

               (ii) in the case of a referral, on the date of referral, or within such longer period as the clerk may direct.

 

(4) Where an oral hearing is requested in accordance with paragraphs (1) and (3) the appeal tribunal shall hold an oral hearing unless the appeal is struck out under regulation 46(1).

 

(5) The chairman or, in the case of an appeal tribunal which has only one member, that member, may of his own motion direct that an oral hearing of the appeal or referral be held if he is satisfied that such a hearing is necessary to enable the appeal tribunal to reach a decision.’

 

20.   In Northern Ireland, the ‘form approved by the Department’ for notification of choice of either an oral hearing or a hearing based on the papers alone is Form REG2(i)D.  In the instant case, this form was sent to the appellant on 2 March 2010.  As was noted above, the appellant, on 7 March 2010, returned Form REG2(i)D to TAS indicating that he was content for the appeal to proceed without an oral hearing.

 

21.   The appeal was first listed for hearing on 14 April 2010.  It would appear, however, that as the appellant had consented to the release of his GP records and that as the relevant records not been received in TAS before the date of the hearing of the appeal, correspondence relating to the GP records was forwarded by a clerk in TAS to the appellant on 30 March 2010.  A copy of that correspondence is in the file of papers which is before me.  In that correspondence the clerk confirms that the appellant has consented to the release of his GP records and then goes on to state that while contact had been made with the GP the relevant records had not yet been received in TAS.  The correspondence goes on to state that:

 

‘The absence of General Practitioner records can often lead to a delay in the resolution of appeals, therefore it would be helpful if you would now contact your General Practitioner to ensure the records will be sent to The Appeals Service to arrive at least 3 days before the date of hearing.’

 

22.   The emphasis in the last sentence was in the original correspondence.  What is potentially problematic about this correspondence is that the appellant might be confused about the reference to the date of hearing.  This is because it is my understanding that where an appellant has returned Form REG2(i)D with an indication that he/she is content for the appeal to proceed without an oral hearing, the appeal will be classified within TAS as one to be heard and determined as a ‘paper’ case.  Further, it is my understanding that while a specific date might be allocated for the hearing and determination of a ‘paper’ case, equally that case might not be allocated a discrete date and time but allocated on a ‘floating’ basis to any sitting appeal tribunal in a session in which sufficient time becomes available to hear and determine the appeal.

 

23.   As was noted above, the decision of the appeal tribunal on 14 April 2010 was to adjourn the hearing.  The reasons given for the adjournment were that the appellant’s GP records were not available, having been requested but not received.

 

24.   The appeal was re-listed for hearing on 21 June 2010.  It would appear, however, that the appellant would not have been informed of the specifics of the re-listing of the appeal.  This is because TAS considers any decision communicated through the completion of Form REG2(i)D to be ‘absolute’ and to be determinative of the manner in which the appeal will be classified for listing.  The absolute nature of the classification would continue through any adjournments of the appeal.  Accordingly, if an appellant consented, as in the instant case, to the appeal tribunal proceeding in his absence, the subsequent classification of the appeal as a ‘paper’ case would subsume through any adjournment.  Further, and following any adjournment, there would be no requirement to notify the appellant of the date and time of the resumed appeal hearing.  One would expect, however, that there would be an exception to the ‘absolute’ nature of that practice where the purpose of any adjournment was to permit or encourage the appellant to attend an oral hearing.

 

25.   In the instant case, and before the listed date of 21 June 2010, it would appear that there was a further problem with the availability of the appellant’s GP records.  As the relevant records had not been received in TAS before the date of the hearing of the appeal, correspondence relating to the GP records was forwarded by a clerk in TAS to the appellant on 17 June 2010.  A copy of that correspondence is in the file of papers which is before me.  That correspondence is similar to that which was forwarded by the clerk to the appellant on 30 March 2010.  In other ways, however, it is different.  The correspondence reads as follows:

 

‘You previously signed a consent form agreeing to the release of your General Practitioners records for perusal by all Parties to the Proceedings at your forthcoming Appeal Tribunal.

 

Your General Practitioners records have been requested today, however it is important to note that it is entirely at your doctor’s discretion whether or not to release the notes in order to assist with your appeal.  The absence of General Practitioners records can often lead to a delay in the resolution of appeals, therefore it would be helpful if you would now contact your General Practitioner to ensure the records will be sent to The Appeals Service to arrive at least 3 days before the date of hearing.

 

Should you, prior to the hearing wish to examine these records, you should contact a supervisor on the above number.  They will inform you whether or not your General Practitioners records have been received and arrange an appointment for you to view them under supervision.

 

Your Representative will only be entitled to examine your records with your specific written authority.

 

Documentation may not be extracted from the records and photocopying of any portion of the documents is not permitted.  If you have any queries regarding this please let me know.’

 

26.   Both emphases in ‘bold’ and underlined were in the original correspondence.  Once again, I am of the view that the appellant might be confused by the contents of this letter.  He had not been given a date for the hearing of his appeal so how could he attempt to ensure delivery of his GP records to TAS at least three days prior to an unknown date?  More importantly, if he had not been given a date for the hearing of his appeal, how could he make arrangements with a supervisor to examine his GP records prior to the hearing of his appeal?

 

27.   As was noted above, the appeal was re-listed for hearing on 21 June 2010.  The record of proceedings for that hearing begins by noting that the appeal was by way of a ‘paper’ hearing.  Further, the record of proceedings records that:

 

‘The Appellant did not attend.  The Tribunal considered the papers as they appeared before it.

 

We were satisfied that the Appellant was aware of the date of today’s hearing and that the papers had been served upon him’.

 

28.   That latter statement is clearly incorrect.  It has been confirmed by an officer from TAS that, in line with the policy outlined above following completion of Form REG2(i)D, the appellant was not informed of the date and time of the further hearing of the appeal.

 

29.   It seems to me that there should be a re-consideration of the ‘absolute’ nature of the policy of omitting to inform an appellant, who has initially completed Form REG2(i)D to indicate that he/she is content for the appeal to proceed without an oral hearing, and whose initial appeal hearing is then adjourned, of the date and time of the subsequent re-listing of the appeal.  It may be that an appellant, who has originally formed the view that he/she does not wish to attend an oral hearing, might have a change of view and, subsequently, does wish to attend.  Further an appellant, following an adjournment of an appeal, may wish to adduce additional evidence even if he/she continues to consent to the appeal proceeding without an oral hearing.  Most importantly administrators need to consider why correspondence, such as that considered above, which makes reference to dates of hearing and the possibility of attendance to view medical records in advance of the date of hearing, is forwarded to appellants who have otherwise not been informed of the date and time of the hearing.  As this issue cuts across the appeal tribunal’s procedural rules and impacts on the judicial function of the appeal tribunal, it may be that re-consideration of the internal administrative policies might be conducted in consultation with the Office of the President of Appeal Tribunals for Northern Ireland.

 

30.   I have to ask whether, in the instant case, the appellant has been put at a disadvantage by the application of the various procedures by the officers in TAS.  It is clear that the appellant’s first decision was that he was content for the appeal to proceed without an oral hearing.  He did, after all, complete Form REG2(i)D to that effect.  Thereafter he was informed that the first listing of the appeal had resulted in an adjournment and he was informed, by way of correspondence dated 27 April 2010, what the terms of the adjournment were.  Further, the appellant was alerted to the fact that there was to be a further re-listing of his appeal although I accept, as was noted above, that the correspondence dated 17 June 2010 had the potential to mislead.  It seems to me, however, that had the appellant in fact changed his mind and subsequently wished to attend an oral hearing of his appeal then he could have been more pro-active in responding to the correspondence dated 17 June 2010, and either sought clarification of what that correspondence meant or sought to rescind his Form REG2(i)D.  Accordingly, I am satisfied that, in this case, the appellant has not been put to any significant disadvantage such as would amount to a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings.

 

         Disposal

 

31.   The decision of the appeal tribunal dated 21 June 2010 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.

 

32.   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 17 December 2009 in which a decision-maker of the Department decided that the appellant should not have an entitlement to either component of DLA from and including 4 April 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)    the appellant is to consider whether he wishes to have an oral hearing of his appeal and, if that is the case, to inform TAS to that effect through the completion of the appropriate form;

 

         (iv)    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

 

         (v)     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

 

 

 

18 October 2012