Northern Ireland - Social Security and Child Support Commissioners' Decisions

DA-v-Department for Social Development (DLA) [2015] NICom 50

Decision No:  C33/14-15(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 29 January 2014

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1. This is an appeal from the decision of a tribunal sitting at Downpatrick on 29 January 2014.

 

2. For the reasons I give below, I allow the appeal.  I set aside the decision of the appeal tribunal under Article 13(8)(b) of the Social Security (NI) Order 1998 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 21 June 2007 and was awarded the low rate mobility and middle rate care component for a period of 18 months.  This was renewed at the low rate of the mobility component and the low rate of the care component for a period of three years to 27 July 2013 following a further claim.  The appellant then made a renewal claim on the basis of needs arising from depression, alcohol/substance abuse, self-harm, neck and chest pain, incontinence, anxiety and insomnia.  The Department obtained a report from the appellant’s general practitioner (GP) on 29 April 2013.  On 8 May 2013 the Department decided on the basis of all the evidence that the appellant did not satisfy the conditions of entitlement to DLA from and including 28 July 2013.  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.  After an oral hearing attended by the appellant, the tribunal disallowed the appeal.  The appellant then requested a statement of reasons for the tribunal’s decision and this was issued on 8 May 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 24 June 2014.  On 24 July 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 noted that the appellant “possibly has been drinking”; yet did not consider whether her oral evidence might have been influenced by consuming alcohol, and potentially denied her a fair hearing.

 

6. The Department was invited to make observations on the appellant’s grounds.  Mr Kirk 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.

 

The tribunal decision

 

7. The tribunal acknowledged that the appellant previously had an award of low rate mobility component and low rate care component to 27 July 2013.  The tribunal noted that high rate mobility was not claimed.  On low rate mobility the tribunal found inconsistency in the appellant’s evidence as to difficulties she might have when walking out of doors.  The tribunal found on the basis of the appellant’s evidence that she had a history of alcohol abuse but that she abstained from drink for long periods.  The height of the medical evidence about the appellant’s mental condition was that she experienced restlessness and agitation.  The tribunal was not satisfied on the evidence that the appellant required guidance or supervision in order to walk out of doors.

 

8. In relation to care, the tribunal found no physical disablement which would limit the ability of the appellant to self-care.  The tribunal accepted that there had been incidents of self-harm, linked to alcohol abuse and depression.  Her GP had described her alcohol abuse as moderate and indicated no on-going treatment for depression.

 

9. The tribunal found that the applicant needed no physical assistance with bodily functions.  In relation to supervision, it found that there had been no serious episodes of self-harm for some time prior to the renewal date.  It found that the appellant did not require continual supervision to prevent substantial danger.  The tribunal further found that the appellant could manage to cook microwave dinners, and saw no reason why, lack of motivation aside, she could not plan and prepare a conventional cooked meal for one.

 

10. The tribunal did not accept that incontinence or blackouts were a present and regularly occurring problem and that any care or mobility needs arose on the basis of these.

 

Hearing

 

11. I held an oral hearing of the appeal.  The appellant attended, represented by Mr McGregor of Citizens Advice.  The Department was represented by Mr Donnelly of DMS.

 

12. Mr McGregor submitted that the applicant had been drinking alcohol and had taken excess medication (co-codamol) on the date of the hearing.  Her instructions to him were that she could not remember anything of the hearing.  He pointed to an entry in the record of proceedings which read “Appellant … Possibly has been drinking. …”. He submitted that the tribunal had relied mostly on the oral evidence of the appellant but had found her oral evidence to be inconsistent.  The tribunal referred to the appellant having become upset in the course of the hearing and then stopped questioning her.  He submitted that the appellant had not received a fair hearing and that her intake of alcohol and medication had impaired her understanding of the tribunal’s questions relating to care.

 

13. He submitted that the appellant was unable to develop her own case and that certain aspects, such as her claim of panic attacks, were not explored by tribunal.  He further pointed to the tribunal’s questions to the appellant about self-harm.  The record of proceedings simply reads:

 

“Doctor - Self harm?

Appellant – Big time (Appellant got upset at this stage).”

 

14. There is nothing further recorded.  Mr McGregor submitted that the tribunal should have given this aspect further consideration, by directing more enquiries to the appellant and by adjourning if necessary.

 

15. Mr Donnelly observed that the record indicated that the appellant had “possibly” been drinking.  He submitted that the tribunal could observe whether someone had been drinking, perhaps through smell of alcohol, or slurred speech or unsteadiness of balance.  However, he noted that the appellant was able to give evidence over 30 minutes and had said to the tribunal that she had not taken alcohol since New Year.  He accepted that at one point she had found it difficult to give evidence about self-harm, but submitted that there was nothing to indicate that her evidence was impaired.  He noted that self-harm was only mentioned in the medical records twice in three years, and that any serious self-harm would be expected to appear in the records.  He noted that there had been no on-going treatment for depression.

 

16. Mr McGregor reiterated that the tribunal did not ask if the applicant was fit to proceed.  He submitted that the tribunal had not followed up the issue of possible alcohol intake.  The appellant stated that she had no recollection of the hearing.  She had not been able to tell him reliably what had happened.  He submitted that the panel should have explored her fitness to proceed and given her an opportunity to come back on another day with representation, and that it should have explored the issue of self-harm more fully, particularly since she had a previous award on this basis.

 

Assessment

 

17. The record of proceedings begins:

 

“Appellant did not want to see medical notes and records.  Possibly has been drinking.  No problem with walking…”.

 

18. From the text, it is not entirely clear who has voiced the suspicion that the appellant had “possibly been drinking”.  It is normal practice in Northern Ireland for the Clerk to the tribunal to ask the appellant, when in the waiting room, whether he or she wishes to have sight of any medical notes and records which are before the tribunal, and to report this to the tribunal.  In this context, I consider that it is likely that the Clerk made the first statement regarding notes and records to the tribunal.  I think that it is equally likely that the Clerk, who has had some interaction with the appellant in the waiting room, has made the statement “possibly has been drinking”.  I say this because until the third statement “No problem with walking”, which is clearly attributable to the appellant herself, there has been no interaction between tribunal and appellant which would enable it to form a view as to whether or not the appellant had been drinking.

 

19. It is self-evident that the intoxication of a witness by drugs or alcohol can give rise to a range of problems in the context of an appeal hearing.  An intoxicated individual may have impaired understanding of questions, reduced coherence, impaired ability to focus in giving evidence and heightened emotional responses to questions.  Nevertheless, I have no doubt that some appellants would be able to consume moderate amounts of alcohol before a hearing with no discernible impediment in participating in the hearing.  In other cases, however, it may be clear that the individual is entirely unfit to participate.  It seems to me that the issue is one of fairness.  If an individual is unfit through consumption of drugs or alcohol, it is unlikely that a fair hearing can ensue.

 

20. In such cases, it seems to me that it may often be necessary to adjourn.  An adjournment might usefully include a direction to reconvene during a morning session, where intoxication may be less likely.  It might include encouragement to the appellant to identify a third party who might accompany the appellant on a different occasion, in the hope that they might use their influence on the appellant to dissuade him or her from becoming intoxicated on that day.  In cases where the tribunal judges that some drugs or alcohol have been consumed yet not to an extent that the fairness of the hearing will be impaired, it may be safe to proceed.  In other cases where there may be no realistic hope of sobriety on a future occasion, a tribunal may have no option but to proceed to determine the appeal.  A tribunal, therefore, has to use its own judgement to determine whether or not it is fair to proceed.  In doing so, it will have to form its own judgement as to the extent to which the participation of the appellant in the proceedings is impaired by alcohol.

 

21. It may not be the Clerk who raises the issue.  A tribunal might smell alcohol, or observe unsteadiness in the appellant when walking in and sitting at the hearing table.  It might observe slurring of speech or lack of responsiveness to questions.  It might observe a lack of focus on the question asked in the response which is given, or repetitiveness.  It might observe emotional signs, such as irritability or weepiness.  Such behaviours may well warrant the tribunal pausing to discuss the fairness of proceeding with the hearing in all the circumstances.

 

22. At other times, any signs of intoxication may well be subtle.  A tribunal might have to clarify whether or not an appellant has been drinking alcohol or taking drugs by putting this to an appellant by direct questions.  Mr McGregor relies on CIB/2368/2004, which concerned with failure to put concerns about evidence to an appellant or representative, to submit that the appellant was not questioned appropriately about the possibility of drinking.  The tribunal records the appellant saying “New Year’s Eve last drink”.  The question which elicited that response is not directly recorded, but the tribunal’s statement of reasons says “When asked about her alcohol consumption and how this affected her going out, the Appellant said she didn’t drink every day and actually confirmed at the Tribunal hearing that the last drink she had was New Year’s Eve which would have been a month approximately before the hearing date”.

 

23. It appears therefore that the appellant was asked about her pattern of past drinking.  It appears that she was not directly asked about drinking on the particular hearing day.  The difficulty which Mr McGregor sees with this is that the comment “possibly has been drinking” is left hanging.  He submits that any suspicion that the appellant had been drinking on the day should have been put to her for comment and cleared up.  I must say that I tend to agree with Mr McGregor.  I consider that it would have been better to have dealt with this particular question directly in the record of proceedings or the statement of reasons.  Although the appellant has stated in response to a general question about alcohol consumption that she had not had a drink since New Year, something about her had given rise to the suspicion that she had been drinking on the hearing day.  The particular suspicion of whether she had been drinking on the hearing day was not put to her in a way which allowed the tribunal to address and resolve it.  Having raised the issue that she possibly had been drinking, the tribunal did not expressly record a conclusion that the appellant was not drinking on the day of the hearing.

 

24. Mr Donnelly submits that no material error arose since all the evidence pointed to the conclusion reached by the tribunal.  On this point I have some sympathy for Mr Donnelly’s submissions.  However, Mr McGregor points again to the manner in which the hearing concluded.  When asked about self-harm, the appellant clearly became emotional.  The tribunal record of proceedings reads, “Appellant became upset at this stage”.  However, at this point, the record of proceedings simply stops.  Mr McGregor submits that the tribunal had an inquisitorial obligation to enquire further about instances of self-harm.  The tribunal does not appear to have done so in the light of the appellant becoming “upset”.  Mr McGregor submits that, particular in the light of the past awards, the tribunal was not entitled simply to rely on the documentary evidence, such as the GP records on the issue of self-harm.  He submitted that the appellant did not always go to her doctor after self-harming.

 

25. Mr Donnelly submitted that any instances of self-harm did not appear to have been sufficiently serious as to amount to “substantial danger to herself”, within the meaning of section 71(1)(b)(ii) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992.  However, the lack of evidence makes this submission purely speculative.  Mr Donnelly may well be correct, but I cannot be sure of this.

 

26. It seems to me that there are two potential errors of law in the tribunal’s decision.  The first was the manner in which the tribunal dealt with its recorded suspicion that the appellant had been drinking alcohol before the hearing.  The second was that the appellant’s upset caused the tribunal to stop questioning her about relevant self-harming behaviour in the relevant period.  I am left with a nagging doubt that the two matters could well be related, in the sense that the appellant’s emotional response, which appears to have precluded further questioning by the tribunal, could well have been linked to alcohol consumption.

 

27. In R(Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982, the relevant error of law is formulated as “committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of the proceedings”.  I have to decide if there has been an irregularity which might have made a difference, as opposed to one which would have made a difference.  I consider that Mr McGregor has raised sufficient suspicion that the proceedings were unfair such that I should allow the appeal.

 

28. I set aside the decision of the appeal tribunal.  I direct that the appeal should be determined by a newly constituted tribunal.

 

29. This is a case in which the appellant should bear in mind that the fact that I have set aside the decision of the appeal tribunal does not suggest that she will succeed at a new hearing.  However, I trust that she will be suitably represented at the new hearing and that she will be enabled to present her case as fully as possible.

 

 

(signed)  O Stockman

 

Commissioner

 

 

 

27 August 2015