Northern Ireland - Social Security and Child Support Commissioners' Decisions

PB-v-Department for Social Development (DLA) [2014] NICom 54

Decision No: C14/14-15(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 14 February 2014

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. Having considered the circumstances of the case and any reasons put forward in the request for a hearing, I am satisfied that the appeal can properly be determined without a hearing.

2. The decision of the appeal tribunal dated 14 February 2014 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 1 July 2013 a decision-maker of the Department decided that the appellant had an entitlement to the lowest rate of the care component of DLA from 20 May 2012 to 19 May 2014. An appeal against the decision dated 1 July 2013 was received in the Department on 16 July 2013. On 10 September 2013 the decision dated 1 July 2013 was reconsidered but was not changed.

7. The appeal tribunal hearing took place on 14 February 2014. The appellant was present and was represented by Ms Rogers of the Legal Support Project. The appeal tribunal disallowed the appeal and confirmed the decision dated 1 July 2013.

8. On 26 June 2014 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS). On 18 July 2014 the application for leave to appeal was granted by the legally qualified panel member (LQPM). In granting leave to appeal, the LQPM identified as a point of law arising:

‘Whether the statement of reasons is adequate’

Proceedings before the Social Security Commissioner

9. On 4 August 2014 the appeal was received in the Office of the Social Security Commissioners. On 11 September 2014 written observations on the appeal were sought from Decision Making Services (DMS) and these were received on 25 September 2014. In these written observations, Mr Hinton, for DMS, supported the appeal. Written observations were shared with the appellant and his representative on 7 October 2014.

Errors of law

10. 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. What is an error of law?

11. 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.”

The submissions of the parties

12. In the statement of the grounds of appeal, Ms Rogers submitted that the decision of the appeal tribunal was in error of law on the basis that (i) it had not correctly applied the legal test for entitlement to the higher rate of the mobility component of DLA and (ii) had not provided adequate reasons for its decision. More particularly, Ms Rogers submitted that while the appeal tribunal had provided a summary of evidence available to it and provided a commentary on that evidence, the appeal tribunal had not provided an analysis of whether the appellant satisfied the conditions of entitlement to the higher rate of the mobility component of DLA. Ms Rogers submitted that from a reading of the reasons for the decision, it did not appear that any decision on entitlement to the higher rate of the mobility component had been made. Ms Rogers added that the appeal tribunal had not made any findings of fact on how far the appellant can walk without severe discomfort and had not made any decision on the issue of severe discomfort.

13. In his written observations on the appeal, Mr Hinton has submitted:

‘In its reasons for decision concerning the mobility component the tribunal clarified the decision under appeal. It then proceeded to provide a detailed summary of all the medical evidence available and made comments regarding (the appellant’s) attendance with various consultants, his attendance at Musgrave Park Hospital, the report of the Examining Medical Practitioner (EMP), an MRI report dated 29 September 2013 and the two GP factual reports (Dr B). However, it is my contention the tribunal was required to go further than this and reach conclusions as to why (the appellant) was not virtually unable to walk in line with the statutory requirements for entitlement to high rate mobility. Regarding some of the medical evidence the tribunal has made comments that mobility was not discussed or surgery was not required. It then seems to have interpreted this information as meaning that (the appellant) did not have mobility problems. I would contend that the tribunal has taken a step too far in its interpretation here and it was wrong to reach this conclusion. I would contend the tribunal’s role here was to assess all evidence in its entirety and, as I have pointed out earlier, decide if (the appellant) was virtually unable to walk in line with the statutory requirements of regulation 12(1) of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992. I would contend it has not been made clear in the statement of reasons that the tribunal has done this; therefore its reasoning in this respect is inadequate. Consequently its decision is erroneous in law.’

Analysis

14. I agree with both representatives that the decision of the appeal tribunal is in error of law. The role of an appeal tribunal is to determine the issues in dispute by an accurate application of the relevant law to the facts as found on the evidence through a procedure that satisfies general standards of fairness. An appeal tribunal must also provide a statement of reasons for its decision which, when read as a whole, provides a detailed explanation of the basis on which the appeal tribunal arrived at its conclusions on the issues before it. In the instant case the appeal tribunal has provided a summary of the evidence which was before it, particularly the medical evidence. It has also provided a detailed commentary on that evidence but that commentary, in my view, falls short of a rigorous assessment. Finally, and most significantly, in connection with a possible entitlement to the higher rate of the mobility component of DLA, the appeal tribunal has failed to make findings of fact and provide any reasons for its conclusions that the conditions of entitlement to the higher rate of the mobility component were not satisfied. Accordingly, the decision of the appeal tribunal is in error of law.

Disposal

15. The decision of the appeal tribunal dated 14 February 2014 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.

16. 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 1 July 2013, in which a decision-maker of the Department decided that the appellant was entitled to the lowest rate of the care component of DLA from 20 May 2012 to 19 May 2014;

(ii)  the appellant will wish to consider what was said at paragraph 77 of C15/08-09(DLA) concerning the powers available to the appeal tribunal and the appellant’s options in relation to those powers;

(iii) the Department is directed to provide details of any subsequent claims to Disability Living Allowance 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);

(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

25 November 2014