Northern Ireland - Social Security and Child Support Commissioners' Decisions

AC-v-Department for Social Development (DLA) [2013] NICom 7

 

Decision No:  C39/12-13(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 11 July 2011

 

 

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.  The decision of the appeal tribunal dated 11 July 2011 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 (i) entitled to the lowest rate of the care component of disability living allowance (DLA) from 12 March 2011 to 11 March 2013 and (ii) is not entitled to the mobility component of DLA from and including 12 March 2011, is confirmed.

 

         Background

 

2.     On 15 December 2010 a decision-maker of the Department decided that the appellant (i) was entitled to the lowest rate of the care component of DLA from 12 March 2011 to 11 March 2013 and (ii) was not entitled to the mobility component of DLA from and including 12 March 2011, on the basis of a renewal claim to that benefit.  On 13 January 2011 an appeal against the decision dated 15 December 2010 was received in the Department.

 

3.     The appeal tribunal hearing took place on 11 July 2011 and the appellant was represented by Mr Mitchell of the Citizens Advice organisation.  There was no Departmental presenting officer present.  The appeal tribunal disallowed the appeal and confirmed the decision dated 15 December 2010.

 

4.     On 12 January 2012 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.  On 3 February 2011 the application for leave to appeal was refused by the legally qualified panel member.

 

         Proceedings before the Social Security Commissioner

 

5.     On 5 March 2012 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 31 May 2012 written observations on the application for leave to appeal were sought from Decision Making Services (DMS) and these were received on 25 June 2012.  In these initial written observations, Mrs Hulbert, for DMS, opposed the application on all of the grounds submitted by Mr Mitchell.  Written observations were shared with the appellant and Mr Mitchell on 3 July 2012.  On 2 August 2012, written observations in reply were received from Mr Mitchell which were shared with Mrs Hulbert on 9 August 2012.  Further correspondence was received from Mrs Hulbert on 20 August 2012 in which she indicated that she had no further observations to make on the application.

 

         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?

 

         The submissions of the parties

 

8.     In the application for leave to appeal, Mr Mitchell has submitted that the decision of the appeal tribunal was in error of law on the basis of the following submitted grounds:

 

         (i)      The appeal tribunal failed adequately to assess the evidence contained within a report prepared by the applicant’s general practitioner (GP) in connection with the decision-making process giving rise to the appeal.

 

                  More particularly, Mr Mitchell submitted that while the appeal tribunal did consider the content of the relevant report ‘… the evidence from the GP factual report does not support the decision that has been given.’  Further, the statement of reasons for the appeal tribunal’s decision suggested that the difficulties which the appellant had with decreased movement in her neck and with chronic neck and back pain, and which were highlighted in the relevant report, were not given sufficient consideration.  The appeal tribunal had attached significant weight to the contents of the appellant’s GP records.  The relevant factual report had been worded ‘… in a precise, tailored manner to assess the criteria for the DLA care component, whereas the GP notes may only refer to diagnosis and treatment and may be less reflective of a patient’s entitlement to DLA.’  Elements of the GP factual report were favourable to the appellant and supportive of her entitlement.

 

         (ii)     The appeal tribunal made a procedural defect in not explaining why it did not afford appropriate weight to the applicant’s own evidence.

 

                  More particularly, Mr Mitchell submitted that the principle, set out in R(SB) 33/85 that a claimant’s evidence did not require corroboration, did not seem to have been followed by the appeal tribunal.  One statement within the statement of reasons for the appeal tribunal’s decision appeared to suggest that the appellant’s evidence required corroboration.  Mr Mitchell accepted that the decision of the Social Security Commissioner in C003/06 (IB) confirmed that an appeal tribunal may accept or reject parts of medical evidence provided that the reasons for so doing are clearly explained.  In the instant case, however, the appeal tribunal had not provided full reasons for its decision.

 

         (iii)    The appeal tribunal had failed to take into account that the appellant had previously been entitled to DLA.  Citing the decision of the Social Security Commissioner in Great Britain in R(M) 1/96, Mr Mitchell submitted that the appellant had been denied the right to a fair trial; and

 

         (iv)    The decision of the Social Security Commissioner in Great Britain in CDLA/4580/2003 was authority for the principle that where ‘…. a general practitioner states “unknown” in response to the request for information the tribunal must treat the reply as neutral, in the absence of further qualification or amplification, and the doctor’s comment is not a basis for a finding of fact.’  Mr Mitchell submitted that the appeal tribunal had been influenced by the responses from the GP and improper weight had been afforded to those comments.

 

9.     As was noted above, in the written observations on the application for leave to appeal, Mrs Hulbert, for DMS, opposed the application on all of the grounds cited by Mr Mitchell.  In written observations in reply to those of Mrs Hulbert, Mr Mitchell made further submissions on the relevance of the factual report from the appellant’s GP.

 

         Analysis

 

10.   I begin by addressing Mr Mitchell’s submission concerning the manner in which the appeal tribunal assessed the evidence contained within a factual report from the appellant’s GP.  The relevant report was completed by Dr G on 9 December 2010 and a copy of that report was attached to the original appeal submission as Tab No 2.  The factual report is in a standard format utilised as part of the decision-making process in connection with claims, including renewal claims, to DLA.

 

11.   Mr Mitchell makes a number of points in connection with the factual report.  He submits that the appeal tribunal failed properly to assess the evidence contained within the relevant report; that the content of the report was supportive to the appellant; that the report was designed specifically to obtain information in connection with the decision-making process in relation to DLA; and that the appeal tribunal placed too much weight on a specific response within the report.

 

12.   In the record of proceedings for the appeal tribunal hearing, the appeal tribunal has noted that it considered the Department’s appeal submission, a written submission provided on behalf of the appellant and the appellant’s GP records.  It is equally clear from the content of the record of proceedings that the appeal tribunal was aware (i) of the GP’s factual report and, more particularly, (ii) that the GP had provided the response ‘not known’ to a specific question concerning the appellant’s ability to get around.  The record of proceedings confirms that the absence of a specific response to the question concerning an ability to get around was put to the appellant during the course of the oral hearing of the appeal.  That is immediately suggestive to me that the appeal tribunal was alert to the requirement to adduce additional evidence concerning the appellant’s limitations with respect to her mobility and to the requirement to seek comment from her on the absence of a formal response from her GP on that relevant issue.  The appeal tribunal has noted the appellant’s response and has sought to adduce relevant evidence.  I will set out below my conclusions as to how that evidence was assessed by the appeal tribunal.  I cannot find any fault, however, with the manner in which the appeal tribunal, as part of the oral hearing of the appeal, has addressed the issues on the contents of the factual report.

 

13.   In the first paragraph of the statement of reasons for its decision, the appeal tribunal has stated:

 

‘The Decision was based, largely, on the contents of a report dated 01.02.11 from the Appellant’s General Practitioner dated 09.12.2010.’

 

14.   There is a clear error in that statement given that two separate dates are cited.  What the appeal tribunal appears to be saying is that the decision of the Department, dated 15 December 2010, was based, for the most part, on the evidence contained within the GP’s factual report, dated 9 December 2010.  Otherwise I find nothing problematic about the appeal tribunal’s statement.  The decision made on 15 December 2010 was a decision on a renewal claim to DLA.  The appellant’s previous entitlement to DLA was at a high level - higher rate of the mobility component and the highest rate of the care component for a three year period.  The decision on renewal was to make an award of the lowest rate of the care component for a three year period.  The appellant, in her renewal claim form to benefit, was submitting that her care and mobility needs remained high.  What the appeal tribunal is stating is that the Departmental decision not to renew at the higher level was based on what the Department perceived to be evidence from her GP which did not support this.  The appeal tribunal was not making any statement about its own view on entitlement.

 

15.   Mr Mitchell has submitted that the contents of the factual report were supportive of the appellant’s entitlement to DLA.  He refers to specific statements made by the GP including ‘Chronic neck and back pain’ and reduced ‘ROM at neck’.  Mr Mitchell submits that these statements ‘… suggest an impact on the ability to self-care.’  With respect to that submission, I cannot agree with it.  I am reminded that evidence of a diagnosis of a medical condition or the labelling of a medical condition in itself is not definitive of entitlement to DLA and what is more important are the care and mobility needs arising from a diagnosis or label (see the decision of Mrs Commissioner Brown in C19/99 (DLA)).  It is entirely possible that an individual with a reduced range of movement in the neck and chronic (meaning longstanding) neck and back pain may not have any resultant care and mobility needs.  Further, it need not necessarily have been the case that any resultant care needs, or as Mr Mitchell puts it, an impact on the ability to self-care, were greater than those assessed by both the decision-maker or the appeal tribunal at the lowest rate of the care component.  A statement to the effect that the appellant has a reduced range of movement in the neck and chronic neck and back pain does not necessarily mean that she satisfies the conditions of entitlement to the middle or highest rate of the care component of DLA.

 

16.   I am of the view that Mr Mitchell is correct to state that the main template Form ‘DBD 370(NI) GPFR (Clinical)’ is utilised for the specific purpose of the provision of evidence to decision-makers to assist in the process of deciding on entitlement to DLA.  Further, it seems to me that the purpose of question 6(c) of the form is to seek to adduce evidence from a claimant’s GP on the effects of a disabling condition on that claimant’s ability to get around.  That does not mean, however, that general evidence concerning the nature of a claimant’s disabling condition, set out in Form ‘DBD 370(NI) GPFR (Clinical)’, takes on any greater importance than parallel evidence set out elsewhere, including in the claimant’s GP records.  In the instant case, it is important to note that the GP’s responses to the questions posed at Part 6 of the form were that he was unaware of any effects of the appellant’s disabling conditions on day to day life.  That meant that the appeal tribunal was required to seek evidence of those effects elsewhere, including from the appellant.  As was noted above, I am satisfied that the appeal tribunal approached that task in the correct manner.  In this respect, I do not also agree that the appeal tribunal placed undue emphasis on absence of answers within the relevant GP factual report.  On the contrary, the appeal tribunal recognised that there was an omission which required to be resolved.

 

17.   I am also satisfied that the appeal tribunal has properly assessed the evidence contained within the relevant GP factual report in line with its duty to assess all of the evidence which was before it.  The appeal tribunal had before it the appellant’s own GP records.  The appellant and her representative would have had the opportunity to consider the contents of those records.

 

18.   In my view the appeal tribunal has undertaken a thorough and detailed analysis of the contents of the GP records.  As part of that assessment the appeal tribunal has noted specific entries relating to treatments and investigations undergone by the appellant.  The appeal tribunal has concluded that the clinical evidence available to it, through the appellant’s GP records, did not support the claims made by the appellant to significant care and mobility needs.  Moreover, the appeal tribunal concluded that ‘… the medical management of the Appellant does not substantiate or support the degree of restriction in mobility [and care needs] claimed by her.’

 

19.   In Quinn v Department for Social Development ([2004] NICA 22), the Court of Appeal emphasised that assessment of evidence and fact-finding role is one for the appeal tribunal.  At paragraph 29, the Court stated:

 

‘It is clear that the Tribunal considered Dr Manley’s report since they refer to it in their findings and describe it as being less than helpful.  The challenge to the Tribunal’s attitude to the report cannot proceed on the basis that they ignored it; rather it must be either that they misconstrued it or they failed to give it sufficient weight.  As to the latter of these two possibilities it is of course to be remembered that a view of the facts reached by a tribunal can only be interfered with by the Court of Appeal in limited and well-defined circumstances.

 

Carswell LCJ described those circumstances in Chief Constable of the RUC v Sergeant A [2000] NI 261 at 273f as follows: -

 

“A tribunal is entitled to draw its own inferences and reach its own conclusions, and however profoundly the appellate court may disagree with its view of the facts it will not upset its conclusions unless-

 

(a) there is no or no sufficient evidence to found them, which may occur when the inference or conclusion is based not on any facts but on speculation by the tribunal (Fire Brigades Union v Fraser [1998] IRLR 697 at 699, per Lord Sutherland); or

 

(b) the primary facts do not justify the inference or conclusion drawn but lead irresistibly to the opposite conclusion, so that the conclusion reached may be regarded as perverse: Edwards (Inspector of Taxes) v Bairstow [1956] AC 14, per Viscount Simonds at 29 and Lord Radcliffe at 36.”

 

20.   At paragraph 4 of R(DLA) 3/04, Mrs Commissioner Brown had made similar remarks:

 

‘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.  Having examined Dr M...’s report I do not consider that the Tribunal’s conclusions as to the weight to be given to it are such as no reasonable Tribunal could have reached.’

 

21.   Mr Mitchell has submitted that the decision of the Social Security Commissioner in C003/06(IB) confirmed that an appeal tribunal may accept or reject parts of medical evidence provided that the reasons for so doing are clearly explained.  I agree with that statement.  I do not, however, and with respect to Mr Mitchell, agree with his further submission that in the instant case the appeal tribunal has failed to give a clear explanation for its acceptance of certain evidence.  In my view, it gave 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.

 

22.   Mr Mitchell has also submitted that certain passages contained within the statement of reasons for the appeal tribunal’s decision run contrary to the principle, set out in R(SB) 33/85 that a claimant’s evidence did not require corroboration.  One statement within the statement of reasons for the appeal tribunal’s decision appeared to suggest that the appellant’s evidence required corroboration.  I do not, with respect, agree with that submission.  As was noted above, the appeal tribunal undertook a careful and rational assessment of all of the evidence which was before it and give a detailed explanation of the basis upon which it took a particular view of the evidence which was before it.

 

23.   Finally I have considered Mr Mitchell’s submission that the decision of the appeal tribunal was in error of law in failing to explain why a previous award of entitlement to DLA was not being renewed.  Mr Mitchell cited the decision of the Commissioner in Great Britain in R(M) 1/96 in support of that submission.

 

24.   It is clear, however, that that decision must be considered in its entirety.  At paragraphs 14 and 15 of his decision, Commissioner Howell stated:

 

‘14.      I do not for my part find it consistent with this fourth point that there should be any kind of “bias” in the claimant’s favour on a renewal claim arising out of the fact that a decision has been made in his favour before.  It remains in all cases for the tribunal to be affirmatively satisfied on the material before it that the conditions for entitlement are met taking into account always that they are conducting an inquiry to ascertain the claimant’s true entitlement, and not merely umpiring a dispute where a formal “burden of proof” is placed on one side or the other: cf.  “Viscusi,” p. 65ID-652F, 654E, 659C.  To introduce such a bias could perpetuate error and in its turn introduce inconsistency in the treatment of different claimants on otherwise similar facts where one had the benefit of a previous award and the other did not.  I therefore do not consider the idea of a tribunal having to deal with “the need for consistency” as a separate issue in its own right on a renewal appeal to be well founded.  The need to treat like facts alike is of course a basic underlying requirement of any just adjudication process but this does not mean it has to be addressed specifically as an “issue” between the parties any more than the need for fairness, of which it is just one aspect.  I do not read anything said in R(A) 2/83, CM/205/1988 or Evans, Kitchen & Others [R(I) 5/94], as suggesting otherwise and insofar as  the two recent decisions in CM/140/1992 and CM/113/1991 seek to go further, I decline to follow them.

 

15.       It does however, seem to me to follow from what is said by the Court of Appeal in Evans, Kitchen & Others, that while a previous award carries no entitlement to preferential treatment on a renewal claim for a continuing condition, the need to give reasons to explain the outcome of the case to the claimant means either that it must be reasonably obvious from the tribunal’s findings why they are not renewing the previous award, or that some brief explanation must be given for what the claimant will otherwise perceive as unfair.  This is particularly so where (as in the present and no doubt many other cases) the claimant points to the existence of his previous award and contends that his condition has remained the same, or worsened, since it was decided he met the conditions for benefit.  An adverse decision without understandable reasons in such circumstances is bound to lead to a feeling of injustice and while tribunals may of course take different views on the effects of primary evidence, or reach different conclusions on the basis of further or more up to date evidence without being in error of law, I do not think it is imposing too great a burden on them to make sure that the reason for an apparent variation in the treatment of similar relevant facts appears from the record of their decision.’

 

25.   There is additional authority on the extent of the duty of an appeal tribunal, when considering an appeal following a decision not to renew an entitlement to a social security benefit.

 

26.   In R 3/04(DLA) (Quinn v Department for Social Development [2004] NICA 22), the claimant was in receipt of the highest rate of the care component and the higher rate of the mobility component of DLA for a fixed period.  Part of the evidence in respect of that award was the report of an examination by an examining medical practitioner (EMP).  A renewal claim was disallowed by the Department and that decision was upheld by an appeal tribunal.  In turn, the decision of the appeal tribunal was upheld by the Social Security Commissioner.

 

27.   Before the Court of Appeal, it was submitted that the appeal tribunal had failed to give any consideration to the first EMP report.  Since the appellant had been awarded DLA, on the first claim, and the medical evidence suggested that there had been no improvement in her condition the appeal tribunal ought to have taken account of the EMP report in relation to the first application.  The argument continued that, in turn, the Social Security Commissioner should have recognised that the appeal tribunal had failed to have regard to the first report and ought to have reversed the appeal tribunal’s decision on that account.

 

28.   The Court of Appeal dealt with the latter argument quickly holding that as the issue concerning the first EMP report had not been argued before the Social Security Commissioner, it would be quite unrealistic to expect the Commissioner to disinter an argument from relevant obscurity.  More obviously, however, the Court of Appeal held, at paragraph 35, that:

 

‘The ultimate disposal of this argument, however, is provided by the consideration that the first report could not have made any difference to the outcome of the appeal to the Tribunal.  The second request for DLA was a renewal application.  Each application must be treated anew.  The reason for this is clear.  The claimant for DLA must establish a level of disability at the time the application is made and for a period of six months after the benefit becomes payable.  It would avail the appellant nothing to show that in November 1997 she was considered to be sufficiently disabled to be entitled to the benefit.  She must show a contemporaneous disability of such severity that she was entitled to the benefit at the time of application and beyond.’

 

29.   In relation to the appeal tribunal’s requirement to consider the first EMP report, the Court of Appeal, had the following to say, at paragraphs 39-42:

 

‘[39] The final argument on this subject was that the Tribunal had failed to explain why it had concluded that the appellant no longer qualified for the benefit if her condition had not improved from that set out in the first EMP’s report; or if it concluded that the appellant’s condition had improved, on what basis it made that finding.

 

[40] The requirement to give reasons where a Tribunal decides that a claimant for benefit is no longer entitled to a benefit of which he or she had been in receipt previously was considered by the Social Security Commissioner in R(M)1-96 CM/20/1994.  In that case the claimant had lost part of his right leg in an accident and had arthritis in his left hip and spine.  His renewal claim for mobility allowance in 1992 was rejected on the ground that he was neither unable, nor virtually unable, to walk.  The claimant contended that his walking ability had in fact got worse since he was originally awarded mobility allowance in 1991.  A disability appeal tribunal confirmed the rejection of his claim.  The claimant appealed to a Social Security Commissioner.  It was held that the fact of a previous award does not raise any presumption in the claimant’s favour or result in the need for consistency having to be treated as a separate issue on a renewal claim.  However, the requirement for a tribunal to give reasons for its decision means that it is necessary for a tribunal to explain why it is not renewing a previous award unless this is obvious from its findings.

 

[41] We agree with this reasoning and intend to apply it to the present case.  Here the Tribunal has not explained why it is not following the course previously taken in making an award of DLA but, in our view, there was no need to do so.  The reason that the Tribunal refused DLA was that it had concluded that the appellant did not suffer from the level of disability that had to be present before the benefit was payable.  As the Court of Appeal said in Evans, Kitchen and Others v. Secretary of State, [now reported as R(I)5/94] a previous award carries no entitlement to preferential treatment on a renewal claim for a continuing condition.  In the R(M)1-96 case the Social Security Commissioner put the point in this way: -

 

“… on a renewal claim, which is a fresh claim for benefit for a period not covered by any previous award, there can be no question of the tribunal being bound to follow any previous decision awarding benefit for an earlier period, nor, in determining whether the conditions for benefit are satisfied on the facts as they find them to be at the date relevant for their decision, is any different standard to be applied according to whether benefit has or has not been awarded before: ex p. Viscusi, supra; CM/205/1988 components of the same benefit dealt with by the same tribunal paragraph 13 (not doubted on this point in the later cases).” (paragraph 13.4)

 

[42] The Tribunal said that it had concluded that the appellant had full function of her upper arms and lower limbs and that she could attend to her bodily functions unaided and unsupervised day and night.  It also said that she could cook a main meal for herself and has no mobility needs.  This statement was sufficient to convey to the appellant why she was not going to receive the benefit.  Put simply, the Tribunal had concluded that she had exaggerated her condition and that she was not truly disabled.’

 

30.   Applying those principles to the present case, it was clear that the appeal tribunal was aware that the appellant had previously been in receipt of DLA.  The record of proceedings for the appeal tribunal hearing notes that the claim form was a ‘renewal’ form.  Thereafter, and as was noted above, the appeal tribunal’s duty was to outline and explain to the appellant why she did not satisfy the conditions of entitlement to either component of DLA.  I have concluded that the statement of reasons was sufficient to ‘convey to the appellant why he was not going to receive the benefit’.  It was obvious from the appeal tribunal’s findings why the previous award was not being renewed.

 

31.   Read as a whole, the statement of reasons for the appeal tribunal’s decision provides a detailed explanation of the basis on which the appeal tribunal arrived at its conclusions on the issues before it.

 

         Disposal

 

32.   The decision of the appeal tribunal dated 11 July 2011 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 (i) entitled to the lowest rate of the care component of DLA from 12 March 2011 to 11 March 2013 and (ii) is not entitled to the mobility component of DLA from and including 12 March 2011, is confirmed.

 

 

(signed):  K Mullan

 

Chief Commissioner

 

 

 

6 February 2013