Northern Ireland - Social Security and Child Support Commissioners' Decisions

MJ-v-Department for Social Development (DLA) [2013] NICom 22

Decision No:  C43/11-12(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 2 June 2011

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.     This is an appeal from the decision of a tribunal which sat at Enniskillen on 2 June 2011, leave having been granted by the legally qualified member (LQM) of the appeal tribunal.

 

2.     For the reasons I give below I allow the appeal under Article 15(8)(b) of the Social Security (NI) Order 1998 and remit the appeal for determination by a newly constituted tribunal, subject to the directions I have given.

 

         REASONS

 

         Background

 

3.     The appellant claimed disability living allowance (DLA) from the Department for Social Development (the Department) for the period from and including 17 January 2011.  She stated that she had undergone surgery to remove a tumour in the orbit of her right eye on 23 November 2010.  The Department obtained a report from the appellant’s general practitioner (GP) on 11 February 2011.  Her claim was considered by the Department and was disallowed on 18 February 2011.  She appealed.  The appeal was heard by a tribunal on 2 June 2011 but the tribunal disallowed the appeal.

 

4.     The applicant requested a statement of reasons for the tribunal’s decision and this was issued to her on 11 November 2011.  On 15 November 2011, her representative, Ms McElroy of Fermanagh Citizens Advice Bureau made an application for leave to appeal to the Social Security Commissioner on her behalf.  The LQM of the tribunal granted leave to appeal on 1 December 2011.

 

         Submissions

 

5.     On 28 December 2012 the appeal was received at the Office of the Social Security Commissioners.  The grounds relied on were those which had previously been submitted to the LQM.  Specifically, Ms McElroy submitted for the appellant:

 

(i)        that the evidence of the appellant’s GP in a letter of 13 April 2011 supported her case by confirming that “she can’t use her right eye unless she physically holds the lid open … she is self-conscious about her appearance and has difficulty going out without using her sunglasses”.  She submits that the tribunal did not give a proper analysis of the evidence;

 

(ii)     that the evidence of travelling to the tribunal on the hearing day was not evidence of ability to walk an unfamiliar route and amounted to post-decision evidence.

 

6.     The Department was directed to make observations on the appellant’s grounds of appeal on 26 January 2012.  Mr Hinton has responded on behalf of the Department. He submits that:

 

(i)        the tribunal dealt adequately with the evidence in the letter of the appellant’s GP;

 

(ii)       the tribunal applied the correct test in deciding that the appellant was not entitled to the low rate of the mobility component;

 

(iii)      there was no indication that the ability to attend the tribunal hearing was a change of circumstances since the decision under appeal and therefore the tribunal was entitled to take it into account;

 

(iv)      however, that the tribunal had erred by failing to consider high rate mobility and the care component, having regard to the GP’s comment “has to be careful” and in terms of the problems outlined by the appellant in her claim form.

 

On this basis Mr Hinton supports the appeal.

 

7.     On 28 February 2012 Ms McElroy was invited to make any comments on Mr Hinton’s observations.  She did not respond.

 

         Legislative provisions

 

8.     The main provision governing entitlement to the low rate of the mobility component is section 73 of the Social Security (Contributions and Benefits) Act (Northern Ireland) 1992.  This says:

 

‘73.-(1)  Subject to the provisions of this Act, a person shall be entitled to the mobility component of a disability living allowance for any period in which he is over the relevant age and throughout which-

…

(d)  he is able to walk but is so severely disabled physically or mentally that, disregarding any ability he may have to use routes which are familiar to him on his own, he cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time.

…

(5)  Circumstances may be prescribed in which a person is to be taken to satisfy or not to satisfy a condition mentioned in subsection (1)(a) or (d) or subsection (2)(a) above.

…’

 

Relevant supplementary conditions are found in regulation 12 of the Disability Living Allowance Regulations (Northern Ireland) 1992.  This provides:

 

‘Regulation 12-

…

(7)  For the purposes of section 73(1)(d) a person who is able to walk is to be taken not to satisfy the condition of being so severely disabled physically or mentally that he cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time if he does not take advantage of the faculty in such circumstances because of fear or anxiety.

 

(8)  Paragraph (7) shall not apply where the fear or anxiety is-

 

(a)  a symptom of a mental disability; and

 

(b)  so severe as to prevent the person from taking advantage of the faculty in such circumstances.’

 

         The tribunal’s decision

 

9.     The tribunal was specifically asked by the appellant’s representative to consider the low rate of the mobility component on the basis of a letter from Dr H....., the appellant’s GP.  This letter, dated 13 April 2011, explained that the appellant had developed a rare tumour in the orbit of her right eye.  This required surgery to remove the tumour and save her sight.  However, it had left her with a right eyelid which she could not raise and numbness over the right temple and right side of her head.  She was awaiting further surgery to try to give back some control over the right eye lid.  In the meantime she was self-consciousness and had difficulty going out without sunglasses.  The GP’s letter stated that the appellant also had some lumbar disc degeneration and mild spinal stenosis which led to frequent episodes of back pain and sciatica.

 

10.   The tribunal had the appellant’s claim form in which she stated that she could not walk more than 50-75 metres at a very slow pace without severe discomfort due to right sided pain and bumping into things.  She stated that she could not open her right eye and had impaired balance and anxiety, giving rise to a need for guidance or supervision out of doors.  She stated that she had care and supervision needs by day and that she had care needs by night.

 

11.   In the factual report, the appellant’s GP had indicated that she had no problems with self-care but had difficulty focusing with her right eye and had to be careful when walking.  She had significant ptosis or drooping of the eyelid on the right side.

 

12.   The tribunal heard evidence from the appellant that she preferred to have someone with her in an unfamiliar place.  She stated that she was conscious of people staring at her.  She would be able to ask for directions in a strange place if she had to.  She had come by bus and taxi today.  She wears prescription sunglasses.

 

13.   The tribunal decided that, although the appellant stated that she needed to be accompanied when walking outdoors, her own evidence did not support this.  The tribunal further decided that the medical evidence did not substantiate her statement that she needed to be accompanied when walking out of doors.  The evidence was that she was self-conscious about her appearance when out of doors, but not that she needed to be accompanied.  On this basis the appeal was disallowed.

 

         Submissions

 

14.   I held an oral hearing of the appeal.  The appellant was represented by Mrs Banks of Citizens Advice.  The Department was represented by Mr Hinton.  I am grateful to the representatives for their submissions.

 

15.   Mrs Banks submitted that the tribunal had failed to resolve a conflict in the evidence.   Mrs Banks further submitted that the tribunal had taken account of post-decision evidence in considering the account of the journey made by the appellant on the day of hearing.  However, she accepted that there was no evidence to suggest that there had been any change in the appellant’s circumstances, and accordingly that the journey taken on the hearing date reflected the circumstances obtaining at the time the decision was made.

 

16.   Mrs Banks made further submissions as to the role of the tribunal in addressing issues relevant to the low rate mobility component.  Much of the evidence before the tribunal was related to anxiety.  I asked whether there was any evidence to suggest that the anxiety resulted from a mental disability as would be required by regulations 12 of the DLA Regulations.  She indicated that there was no diagnosis but suggested that the appellant was on medication for memory loss and submitted that the tribunal should have investigated this issue.  She further submitted that the tribunal had not considered the evidence relating to safety walking outdoors due to physical issues.

 

17.   Mr Hinton in his submissions opposed the arguments advanced by Mrs Banks.  However, he submitted that the tribunal had erred in law when it considered only the low rate care component, in a context where the self-assessment claim form included references to mobility needs relevant to the high rate mobility component and care.

 

18.   He referred in particular to the decision of the Court of Appeal in Northern Ireland in Mongan v Department for Social Development [2005] NICA 16 and to the decision of Chief Commissioner Mullan in C37/09-10(DLA) where he said at paragraph 37(iii) that an aspect of the tribunal’s inquisitorial duty required it to ensure that the appellant agreed with any concession made by a representative.

 

19.   Mrs Banks accepted that the representative on the day of the tribunal hearing had advanced only a case based around low rate mobility component.  The tribunal then only considered the aspect of entitlement to the low rate of the mobility component and no objection was raised.  However, Mrs Banks submitted that the appellant could have advanced a case based on high rate mobility component and the care component.  The tribunal should have addressed this or recorded the consent of the appellant to proceeding only with low rate mobility.  I was told that in the meantime the appellant had been awarded low rate mobility component and middle rate care component (day time attention) from 7 November 2011 to 5 May 2013.

 

         Discussion

 

20.   Mrs Banks submitted that the tribunal had failed to resolve a conflict in the evidence.  However, upon analysis, I could not see any actual conflict in the evidence.  There were only differences in the degree of support given by two doctors to the statements in the appellant’s claim form.  I am also satisfied that the account of the journey taken on the hearing date reflected the circumstances obtaining at the time the decision was made.

 

21.   I therefore consider that there is no merit in the submissions advanced by the appellant in her initial application for leave to appeal.  However, while opposing the grounds of appeal which Mrs Banks advances, Mr Hinton for the Department submits that the tribunal erred by failing to address anything but the low rate mobility component.  He submits that it was clearly apparent from the evidence (the words of Kerr LCJ in Mongan) that the appellant had raised other issues.

 

22.   When the claim form is considered, it is evident that the high rate mobility component was put in issue by the appellant, as was the main meal test and the question of attention in connection with bodily functions.  Mongan requires the tribunal to exercise its inquisitorial function in relation to all issues before it, even if a representative has conceded an issue.  In Mongan, the Court of Appeal indicated, at paragraph 18, that:

 

‘In carrying out their inquisitorial function, the tribunal should have regard to whether the party has the benefit of legal representation.  It need hardly be said that close attention should be paid to the possibility that relevant issues might be overlooked where the appellant does not have legal representation.  Where an appellant is legally represented the tribunal is entitled to look to the legal representatives for elucidation of the issues that arise.  But this does not relieve them of the obligation to enquire into potentially relevant matters.  A poorly represented party should not be placed at any greater disadvantage than an unrepresented party.’

 

23.   Mongan obliges the tribunal to consider all matters which are clearly raised by the evidence before it, including the self-assessment claim form.  In this case, it has examined only the aspect of the low rate of the mobility component.  It does not formally record that the appellant or representative conceded that the conditions of entitlement to the other components raised by the self-assessment claim were not met.  It does not record that it considered the question of whether the concession was an appropriate one in the light of the evidence as a whole.

 

24.   In C37/09-10(DLA) Commissioner Mullan suggested practices which would lighten the obligation which Mongan places on the tribunal and recognise the expertise of particular representatives who properly might want to concede issues.  These included clarifying the legal and evidential basis on which any concession is based, ensuring that the appellant agrees with any concession made by the representative and considering whether the concession was appropriate.  In such circumstances, he considered that the Mongan obligations would be met.

 

25.   In the particular case the tribunal has not sought to record whether an express concession was made, or the attitude of the appellant and the tribunal to the concession.  Had the tribunal done so, a different outcome might have been possible.  However, Commissioners are bound by the Court of Appeal decision, just as tribunals are.  Here the tribunal did not consider the high rate of the mobility component or the care component, which were clearly raised in the evidence, and it did not address the concession.  In accordance with Mongan, its decision is in error of law.

 

26.   I asked the appellant if she intended to concede all but the low rate mobility component.  The appellant indicates that she would have wished the care component to be addressed.  This is an unsurprising and reasonable position in light of the fact that she subsequently has been awarded the middle rate care component from 7 November 2011 for a two year fixed period.  Therefore the tribunal’s failure to apply Mongan is a material error.

 

27.   I set aside the decision of the appeal tribunal and remit the appeal to a newly constituted tribunal for determination.

 

28.   The new tribunal shall be concerned with the appellant’s entitlement to all components of DLA for the period from 17 January 2011 to 6 November 2011 inclusive, subject to any concessions properly made.

 

 

(signed):  O Stockman

 

Commissioner

 

 

 

13 March 2013