Northern Ireland - Social Security and Child Support Commissioners' Decisions

JMcC-v-Department for Social Development (DLA) [2015] NICom 42

Decision No: C20/14-15(DLA)

 

 

 

 

IRO S McC (DECEASED)

 

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 4 April 2014

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

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

 

2. An oral hearing of the appeal has not been requested and I consider that the appeal can properly be determined without a hearing.

 

3. For the reasons I give below, I disallow the appeal.

 

REASONS

 

Background

 

4. The deceased had claimed disability living allowance (DLA) from the Department for Social Development (the Department) from 30 April 2013 on the basis of needs arising from back problems, stress and anxiety. The Department obtained a report from his general practitioner (GP) on 11 May 2013. On 17 May 2013 the Department decided on the basis of all the evidence that he did not satisfy the conditions of entitlement to DLA. He appealed to a tribunal on 20 June 2013. However, on 23 October 2013 he died.

 

5. The deceased’s father was contacted and he indicated that he wished to continue the appeal. I do not have sight of the formal Departmental appointment of the father to continue the appeal, but I presume that everything was properly and correctly done and I refer to him as “the appointee”.

 

6. 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 allowed the appeal, awarding low rate care component from 30 April 2013 to 23 October 2013. The appointee then requested a statement of reasons for the tribunal’s decision and this was issued on 11 August 2014. The appointee applied to the LQM for leave to appeal from the decision of the appeal tribunal and leave to appeal was granted by a determination issued on 2 October 2014. The LQM accepted that there was an arguable error of law arising in relation to the evidence which was not before the tribunal due to the appellant’s death. On 22 October 2014 the appeal was lodged in the Office of the Social Security Commissioners.

 

Grounds

 

7. The grounds of appeal submit that the tribunal has erred in law on the basis that:

 

(i)         the tribunal asked questions which could not be answered fully;

 

(ii)        the appointee believed that the refusal of DLA was a factor in the appellant’s suicide;

 

(iii)       the appellant’s mobility was restricted to a greater extent than found by the tribunal.

 

8. The Department was directed to make observations on the appellant’s grounds. Mr Paul Culbert 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 appeal.

 

The tribunal’s decision

 

9. The tribunal had documentary evidence before it, including the DLA claim form completed by the deceased, a factual report from his GP, his medical records, a written statement of the deceased concerning an injury at work, a statement from the appointee, medical reports from a chiropractor and from the Mater Hospital. The parents of the deceased attended the hearing, as did his representative Mr Copeland of the Ulster Unionist Party.

 

10. The tribunal asked questions of the deceased’s parents concerning his mobility and care needs and considered the medical evidence. The tribunal concluded that the applicant had flare ups of back pain or sporadic acute spasms which led to significant difficulties with care and mobility, but that these were not present most of the time. Nevertheless, the tribunal concluded that there was evidence of stiffness and soreness in the mornings and a requirement for encouragement to dress and shower most of the time. This led the tribunal to award low rate care component from 30 April 2013.

 

Assessment

 

11. An appeal lies to a Commissioner from any decision of an appeal tribunal on the ground that the decision of the tribunal was erroneous in point of law. However, the party who wishes to bring an appeal must first obtain leave to appeal.

 

12. Leave to appeal is a filter mechanism. It ensures that only applicants who establish an arguable case that the appeal tribunal has erred in law can appeal to the Commissioner.

 

13. An error of law might be that the appeal tribunal has misinterpreted the law and wrongly applied the law to the facts of the individual case, or that the appeal tribunal has acted in a way which is procedurally unfair, or that the appeal tribunal has made a decision on all the evidence which no reasonable appeal tribunal could reach.

 

14. In submitting that the tribunal has erred in law, the appointee relies on the fact that the tribunal asked questions about the deceased which he and his wife could not answer.

 

15. The tribunal has an inquisitorial role. It was necessary for the tribunal to seek to obtain as much evidence and information as it could about the deceased which might be relevant to the question of entitlement to DLA. In the tragic circumstances of the case, there was no opportunity to obtain a personal account of the effects of his physical and mental disablement on the deceased’s mobility and care needs, apart from the claim form which had been completed in April 2013. The tribunal had no option but to seek the best evidence it could, and that was from the people who knew and cared for the deceased. In making its enquiries, the tribunal had to conduct itself in as sensitive a manner as possible, while at the same time seeking precise information. It does not appear that the appointee complains that the tribunal’s approach was inappropriate. Rather, he submits that he and his wife did not have the precise information requested. I cannot fault the tribunal for the approach it adopted. It had to seek as much information as possible. There is equally no criticism which can be made of the appointee or his wife for any limitations in the assistance they could offer the tribunal. The situation was not one which any of the participants would have wished, but it did not demonstrate any error of law on the part of the tribunal.

 

16. The appointee submits that the decision of the Department to refuse to award DLA to the deceased was a factor in his death. I have no basis for either accepting or rejecting that statement. However, it is not a matter which can be relied upon to submit that the tribunal has erred in law, since the tribunal had no part in that decision.

 

17. The appointee submits that the medical evidence before the tribunal in the form of the GP records inaccurately stated the extent of the deceased’s ability to walk. He submits that he definitely could not walk 200 metres. He refers to the claim form where the deceased has talked about the difficulties of mobility when his back was in spasm.

 

18. The tribunal is obliged to base its decision on the evidence before it. The tribunal included a member with medical expertise in order to assist it to understand the medical evidence. The evidence of the GP was one piece of evidence among others. The tribunal took the view on the basis of the evidence that the severity of the deceased’s back condition varied. There is no doubt that his ability to walk on some days was more restricted than others. However, in his claim form the deceased stated that he could normally walk for a maximum of 5-10 minutes at 40-60 metres per minute. With the greatest respect to the appointee, at the slowest pace and for the shortest time, namely walking at 40 metres per minute for 5 minutes, this equates to 200 metres. This figure is not inconsistent with the assessment of the GP which the appointee disputes. I consider that the tribunal was entitled to reach the view that it did on the evidence.

 

19. I wish to extend my own sympathy to the appointee and his wife for their tragic loss. However, having considered the appointee’s grounds of appeal, I consider that the tribunal has not erred in law as alleged, and I disallow the appeal.

 

 

(signed) O Stockman

 

Commissioner

 

 

 

5 August 2015