Northern Ireland - Social Security and Child Support Commissioners' Decisions

ED-v-Department for Social Development (DLA) [2015] NICom 31

 

Decision No: C34/14-15(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 8 November 2013

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1. This is a claimant’s appeal from the decision of a tribunal sitting at Belfast.

 

2. For the reasons I give below, I allow the appeal. Under Article 15(8)(b) of the Social Security (NI) Order 1998 I set aside the decision of the appeal tribunal and I direct that the appeal shall be determined by a newly constituted tribunal.

 

REASONS

 

Background

 

3. The appellant claimed disability living allowance (DLA) from the Department for Social Development (the Department) from 5 March 2013 on the basis of needs arising from depression, anxiety, panic attacks, high blood pressure, hypertension and low back pain. The Department obtained two reports from the appellant’s general practitioner (GP). On 14 May 2013 the Department decided on the basis of all the evidence that the appellant did not satisfy the conditions of entitlement to DLA. The appellant appealed.

 

4. The appeal was considered by a tribunal consisting of a legally qualified member (LQM), a medically qualified member and a disability qualified member. The tribunal disallowed the appeal. The appellant then requested a statement of reasons for the tribunal’s decision and this was issued on 11 March 2014. The appellant applied to the LQM for leave to appeal from the decision of the appeal tribunal but leave to appeal was refused by a determination issued on 23 April 2014. On 22 May 2014 the appellant applied to a Social Security Commissioner for leave to appeal.

 

Grounds

 

5. The appellant submits that the tribunal has erred in law on the basis that:

 

(i) the tribunal made a wrong decision which was contrary to the evidence before it;

 

(ii) the tribunal made an error of fact in relation to prescribed medication;

 

(iii) the tribunal recorded an incident at the hearing which never happened;

 

(iv) the appellant’s condition affects sleep, mental well-being and memory and gives rise to support needs.

 

6. The Department was invited to make observations on the appellant’s grounds. Mr Donnelly of Decision Making Services (DMS) responded on behalf of the Department. He submitted that the tribunal had not erred in law as alleged and indicated that the Department did not support the application.

 

Assessment

 

7. The principal issue relied on by the appellant concerned what was said to be an error of fact by the tribunal which influenced its findings on credibility. The tribunal was said to have misunderstood his evidence by confusing his reference to Methadone (linctus) taken for a persistent cough with Methadone prescribed as a substitute for heroin. In the light of post-hearing evidence from his GP submitted by the appellant, I considered that there was an arguable error of law on the basis that the tribunal may have made an error of fact. I granted leave to appeal and I directed an oral hearing.

 

8. The appellant attended the hearing represented by Mr Cunningham of Robert Murtagh & Company, Solicitors. The Department was represented by Mr Donnelly.

 

9. I heard submissions from each of the parties on the possible error of fact by the tribunal. However, in the course of the hearing it became apparent that certain other evidence, which had been forwarded to the Department in the course of the appellant’s request for a reconsideration of the decision of 14 May 2013, was not before the tribunal. This evidence included the second factual report from the appellant’s GP, a list of currently prescribed medication and a report from 352 Healthcare regarding hand surgery.

 

10. The tribunal’s record of proceedings showed a meticulous attention to setting out the evidence which was before it. The additional evidence was not referred to at all in the tribunal’s record. Furthermore, the bundle of papers retained by the appellant did not include the evidence, whereas the bundle of the Department and received by the Commissioners’ Office included the material, albeit photocopied on a markedly different paper to the main bundle.

 

11. It was agreed by the parties that the additional material was not before the tribunal when it decided the appeal. It also appeared to me that the tribunal had decided the case without having the full evidence submitted by the appellant before it.

 

12. The evidence from the second GP factual report commented on certain aspects of the case where the tribunal had not considered the first GP factual report to be supportive, such as indicating chronic anxiety, post traumatic state and recurrent flare ups of anxiety relating to past events.

 

13. When I consider the content of the second GP factual report, it appears to me that the absence of this was capable of making a material difference to the outcome or the fairness of the tribunal proceedings. Natural justice requires that a party should have a proper opportunity to present his case. The tribunal was not given all the evidential material which had been submitted to the Department in respect of the appellant’s case and I consider that unfairness has resulted.

 

14. I do not need to decide the more nuanced question of whether the tribunal has made a mistake as to a material fact regarding the prescription of Methadone or Methadone linctus.

 

15. I allow the appeal and I set aside the tribunal’s decision on the basis that there has been a breach of procedural fairness in the present appeal capable of making a material difference to the outcome.

 

16. I direct that the appeal shall be reheard by a newly constituted tribunal.

 

 

(signed): O Stockman

 

Commissioner

 

 

 

16 July 2015