Northern Ireland - Social Security and Child Support Commissioners' Decisions

JL-v-Department for Social Development (DLA) [2013] NICom 33

 

 

Decision No:  C40/12-13(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 8 November 2011

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.     This is an appeal from the decision of an appeal tribunal which sat at Newtownards on 8 November 2011.

 

2.     Having read the submissions of the parties I granted leave to appeal on 25 January 2013.  I held an oral hearing of the appeal on 14 March 2013.

 

3.     I allow the appeal.  I set aside the decision of the appeal tribunal under Article 15(8)(b) of the Social Security (NI) Order 1998 and I remit the appeal to a newly constituted tribunal for determination.

 

REASONS

 

         Background

 

4.     The applicant claimed disability living allowance from the Department for Social Development (the Department) on 6 October 2010.  Her claim was based on needs arising from conditions including a prolapsed uterus, urge incontinence and depression.  The Department obtained a report from the applicant’s general practitioner on 10 February 2011.  On 23 February 2011 the Department disallowed her claim.  She appealed to a tribunal, but her appeal was disallowed on 8 November 2011.

 

5.     The applicant requested a statement of reasons for the tribunal’s decision.  This was issued to her on 13 February 2012.  On 1 March 2012, represented by Mrs Carty of Law Centre NI, the applicant made application to the legally qualified member of the tribunal for leave to appeal to the Social Security Commissioner.  Leave to appeal was refused by a determination issued on 16 March 2012.  On 5 April 2012 the applicant made an application to a Social Security Commissioner for leave to appeal.

 

         Grounds

 

6.         The applicant relies on three grounds. These are:

 

(i)    the tribunal erred in its interpretation of a letter from the applicant’s consultant obstetrician and gynaecologist relevant to the issue of high rate mobility component;

 

(ii)  the tribunal failed to consider the applicant’s need for guidance and supervision for the purposes of the low rate mobility component;

 

(iii) the tribunal gave inadequate reasons, in particular in relation to the refusal of the low rate care component on the basis of the main meal test.

 

7.     The Department was invited to make observations on the applicant’s grounds.  Mr Hinton responded for the Department.  Mr Hinton disputed the second and third of the applicant’s grounds but submitted that the tribunal has erred in law in respect of the first ground.

 

8.     I accepted that an arguable case had been made out and I granted leave to appeal.  While noting the Department’s agreement with the appellant’s first ground, I decided to hold an oral hearing of the appeal in order to assess whether this made any material difference to the outcome of the appeal and to hear oral argument on the remaining grounds.

 

         The tribunal decision

 

9.     The tribunal had found that the applicant had a grade 1 vaginal prolapse, which is the lowest of three grades of severity, describing that this will typically involve the types of feelings the appellant had described but would not normally give rise to severe discomfort such as to bring a claimant into the category of being virtually unable to walk.  The tribunal took the view that there was a considerable degree of overstatement in the level of disability claimed by the appellant.  In reaching this view, the tribunal indicated that it had carefully considered the medical evidence, referring to letters provided to the tribunal by Dr Fogarty and Dr Hamilton, each of whom was a consultant obstetrician and gynaecologist.  Dr Fogarty referred to “significant pain and discomfort which is exacerbated by weight bearing, walking and standing”.  Dr Hamilton referred to “severe discomfort on any weight bearing, standing or walking”.  In relation to Dr Hamilton’s letter the tribunal felt that she was reporting what she was told by the appellant.

 

         Hearing

 

10.   I held a hearing of the appeal.  Ms Loughrey of Law Centre (NI) appeared for the appellant.  Mr Hinton of Decision Making Services appeared for the Department.

 

11.   Ms Loughrey pointed out that there were in fact two letters from Dr Hamilton before the tribunal, - one dated 22 March 2011 and one dated 26 May 2011.  The tribunal referred to the letter of 26 May 2011 in the list of documents considered, but not to the earlier letter.  Nothing in the record of proceedings alluded to the fact that there were two letters.  There was a substantial overlap in the two letters.  The letter of 26 May differed only from the letter of 22 March by the inclusion of the expression “I have confirmed in consultation with (the claimant) that …” before the list of symptoms.  The earlier letter was signed while the latter was dictated but not signed.

 

12.   Ms Loughrey pointed out the fact that the appellant placed express reliance on the letter of 22 March 2011, submitting it with a review request of 24 March 2011 and in a further letter of 19 May in which the appellant indicated the consultant’s willingness to be telephoned directly in relation to the case, giving the name and number of the consultant’s secretary, something reiterated in another letter of 6 June 2011 enclosing the consultant’s letter dated 26 May.

 

13.   She submitted that the consultant had been sympathetic to the appellant and was seeking to be actively supportive in writing on her behalf.  She had spoken to the appellant at home, indicating that she was unsure what evidence the Department required.

 

14.   Ms Loughrey submitted that the fact that there was no reference to the letter of 22 March suggested that it had played no part in the tribunal’s decision.  However, she submitted, had the tribunal considered the two letters it may have given more weight to the letter of 26 May and thereby have reached a different decision.  It had erred in law by failing to read the evidence as a whole.

 

15.   Mr Hinton submitted that the difference between the two letters of Dr Hamilton was subtle but significant.  If the tribunal took the letter of 26 May, which introduced the words “I have confirmed in consultation with (the claimant) that” as weaker because of the use of those words, it nevertheless required to assess the letter which had not included those words.

 

16.   He referred to the decision of Chief Commissioner Mullan in C16/08-09(DLA) at paragraph 54 where he held that the tribunal should undertake a rigorous assessment of the evidence and explain why it accepted or rejected evidence.  He argued that the tribunal had not undertaken an assessment of the letter of 22 March or explained its rejection.

 

17.   I further heard argument on the appellant’s second and third grounds.

 

         Assessment

 

18.   In any case where it appears that a tribunal has overlooked evidence, it is likely to give rise to an error of law.  However, I also have to ask myself whether such an error was a material error in the circumstances of the individual case.  It will only be a material error if it would have been likely to have affected the outcome of the appeal.

 

19.   It is undeniable that the tribunal has not made specific reference to the letter of 22 March 2011 in which Dr Hamilton gives an opinion that the appellant experienced severe discomfort on walking.  The tribunal only makes reference to the letter of 26 May which introduces an apparent qualification of that opinion with the words “I have confirmed in consultation with (the claimant) that …”.  The tribunal interpreted this phrase as the consultant reporting what she had been told by the appellant.

 

20.   It appears to me that on its own the letter of 26 May is capable of bearing this interpretation.  Nevertheless I accept that there is some doubt as to whether the consultant intended that the qualification in the letter of 26 May would weaken the effect of her evidence.  Tribunals are familiar with expressions used in evidence from medical professionals such as “she tells me that” which are generally intended to clarify that the professional does not wish to endorse the view of the patient.  This may be because the professional disagrees with the patient’s account or lacks evidence to corroborate the account.  In isolation, I could not hold that the tribunal’s interpretation of the letter of 26 May was unreasonable or otherwise erroneous in law.

 

21.   However, an unusual situation arises in the present case, due to the existence of two letters of different dates and due to the similarities in the two letters.  On the basis of the tribunal’s reasoning, the qualifying expression used in Dr Hamilton’s second letter had the effect of weakening the consultant’s evidence.  The tribunal says that it “felt that this was reporting what she was told by (the claimant)”.  This would mean, however, that the letter of 22 March, which did not use the qualifying expression, represented stronger evidence on behalf of the appellant.  Yet the tribunal did not make reference to it, or seek to explain its reasoning around the letter of 26 May in light of the letter of 22 March.

 

22.   The case involves two similar and subtly different pieces of evidence.  What is clear is that the tribunal has placed an interpretation on the consultant’s letter dated 26 May which may have been open to it in isolation of any other evidence.  However, I consider that any interpretation of the later letter required to be conducted in light of the earlier letter from the same consultant.  The fact of the matter is that the earlier letter has been ignored or overlooked in the tribunal’s reasons.

 

23.   I accept the submissions of the parties that the tribunal has erred by not referring to the letter of 22 March.  I accept that this potentially affected the outcome of the appeal.

 

24.   For this reason, I consider that the tribunal has erred in law and that I must set aside its decision.  Although I have heard argument on the other two grounds submitted by the appellant, I do not need to reach a concluded decision on those grounds and do not do so.

 

         Disposal

 

25.   I remit the appeal to a newly constituted tribunal for determination.  The appellant should of course be aware that this does not imply that her appeal will necessarily succeed upon rehearing.

 

26.   I was advised at hearing that the appellant was subsequently awarded the low rate of the mobility component and the middle rate of the care component by the Department for a period from 30 April 2012 to 29 October 2013.  This means that any tribunal is restricted to considering the period from the date of claim on 6 October 2010 to 29 April 2012.

 

 

(signed):  O Stockman

 

Commissioner

 

 

 

8 May 2013