Northern Ireland - Social Security and Child Support Commissioners' Decisions

AH-v-Department for Social Development (DLA) [2016] NICom 12

 

Decision No: C14/15-16(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 2 December 2014

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1. The decision of the appeal tribunal dated 2 December 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.

 

2. 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.

 

3. 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.

 

4. It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of her 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

 

5. On 11 July 2014 a decision-maker of the Department decided that the appellant did not have an entitlement to DLA from and including 4 June 2014. An appeal against the decision dated 11 July 2014 was received in the Department on 7 August 2014. On 1 September 2014 the decision dated 11 July 2014 was reconsidered but was not changed.

 

6. The appeal tribunal hearing took place on 2 December 2014. The appellant was present and was represented by Ms McCaughey of the Wave Trauma Centre. There was no Departmental Presenting Officer present. The appeal tribunal disallowed the appeal and confirmed the decision of the Department dated 11 July 2014.

 

7. One 17 February 2015 an application for leave to appeal to the Social Security Commissioner was received in The Appeals Service (TAS). On 25 February 2015 the application for leave to appeal was refused by the Legally Qualified Panel Member (LQPM).

 

Proceedings before the Social Security Commissioner

 

8. A further application for leave to appeal was received in the Office of the Social Security Commissioners on 8 June 2015. On 18 August 2015 observations on the application for leave to appeal were requested from Decision Making Services (DMS). On 24 August 2015 I accepted the late application for special reasons. In written observations received on 18 September 2015, Mr Donnelly, for DMS, supported the application on one of the grounds submitted on behalf of the appellant. Written observations were shared with the appellant and Ms McCaughey on 21 September 2015. Written observations in reply were received from Ms McCaughey on 2 October 2015. On 16 December 2015 I granted leave to appeal. When granting leave to appeal, I gave as a reason that an arguable issue arose as to the manner in which the appeal tribunal applied the test for entitlement to the lower rate of the mobility component of DLA.

 

Errors of law

 

9. 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?

 

10. 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."

 

Analysis

 

11. In his detailed written observations on the application for leave to appeal, Mr Donnelly has made the following submission:

 

'Mrs McCaughey refers to the tribunal's findings concerning the (the claimant's) ability to drive, and the decisive nature of these findings in the subsequent decision not to award the lower rate of the mobility component. Mrs McCaughey references NI Reported Decision R1/07(DLA) in which Commissioner Brown held that the ability to drive (even on familiar routes) is evidence of clear headedness and competency which is relevant to the ability to walk on unfamiliar routes without guidance and supervision. It would appear that the tribunal used the principle of R1/07(DLA) in their description of (the claimant) showing "concentration and clear headedness". However Mrs McCaughey has pointed to GB Decision CDLA/3484/2007 in which Commissioner (now Judge) Mesher held the following in relation to R1/07(DLA) at paragraph 9:

 

"I respectfully agree, but note that such matters were merely said to be relevant, not decisive. Everything depends on the circumstances of particular cases. In cases where psychological problems like anxiety or depression play a part a claimant may feel safe and secure in a car, but not when walking. Abilities to perform competently in some areas do not necessarily translate across to other areas and the fact that the difference cannot be rationally explained does not mean that it is not genuine."

 

Mrs McCaughey submits that through (the claimant's) history ... and more recently as a victim of stalking and vandalism, that these incidents would have an impact on her mental health resulting in her feeling somewhat less anxious in a car with the doors locked, than walking outdoors. Also in the application Mrs McCaughey has referred to the ESA85 report which was consistent with the contentions regarding requirement for accompaniment, as well as a point regarding (the claimant's) ability to ask for directions. Both of these issues fall under the banner of the lower rate of the mobility component.

 

The statutory test in relation to the lower rate of the mobility component is held at section 73(d) of the Social Security Contributions and Benefits Act, 1992:

 

(d)   He is able to walk but is so severely disabled physically or mentally that, disregarding any ability he may have to use routes which are familiar to him on his own, he cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time

 

In relation to (the claimant's) ability to walk on unfamiliar routes without guidance and supervision, the tribunal had a range of evidence before it. At page 15 of the DLA1 claim form, reference is made to anxiety at the prospect of going to unfamiliar places as well as avoidance of going out at that time. It further states she has lost her confidence and is cognitively quite confused. Further reference to anxiety is made at page 16, while communication difficulties are noted at page 26.

 

A consistent theme throughout the evidence was that (the claimant) required her daughter to be with her when out for walks. Further to this, the only mention of her driving was on familiar journeys, either local areas or to the WAVE centre on Omagh, which was a weekly occurrence. I would also refer to the findings by Ms Griffiths in the ESA85 report.

 

Accordingly I support Mrs McCaughey's contentions in this ground. It would appear that (the claimant's) circumstances fall within the principle of CDLA/3484/2007 (which was endorsed by Upper Tribunal decision CDLA/722/2012). While (the claimant) may display level headedness in her ability to drive on familiar journeys, the tribunal have not had full regard to the specific circumstances that would prevent (the claimant) from being able to walk out of doors without guidance or supervision from another person most of the time. I therefore support this ground of appeal.'

 

12. I accept Mr Donnelley's careful analysis and, for the reasons which he has set out, agree that the decision of the appeal tribunal is in error of law.

 

13. In C50/10-11(DLA), I cited paragraphs 77 to 78 of my decision in C12/08-09(DLA), as follows:

 

28. In C12/08-09(DLA), I said the following, at paragraphs 77 to 78:

 

'77. Additionally, the ability to drive, even on familiar routes, is evidence of clear headedness and competency which is relevant to the ability to walk on unfamiliar routes without guidance and supervision. In R1-07(DLA), at paragraph 9, Mrs Commissioner Brown stated that:

 

'I consider the Department's submission to be correct in that the tribunal concluded that the ability to plan a journey, drive a car and therefore react to road conditions was indicative of clear headedness and competency. Such clear headedness and competency is a matter which is obviously relevant to the ability to walk on unfamiliar routes without guidance or supervision. I consider the Department to be correct that it was the possession of those abilities upon which the tribunal relied, not the claimant's ability to use familiar routes. When driving no matter whether a route is familiar or not there can be varying traffic conditions, emergency situations, pedestrians etc. The ability to drive even on familiar routes is evidence of clear headedness and competency. It is quite obvious from the tribunal's findings, where it specifically referred to the ability to walk on unfamiliar routes, that it has not misinterpreted the test for the lower rate of the mobility component. It has merely used the evidence of driving as showing clear headedness and competency indicative of ability to walk unsupervised and unaccompanied.'

 

78. Once again, therefore, the ability to drive on familiar routes, such as to and from the place of employment, can and should be taken into account in assessing the ability to walk without guidance or supervision.'

 

14. Mr Donnelley is correct to note that Mr Commissioner Mesher (as he then was) endorsed the reasoning of Mrs Commissioner Brown in R1/07(DLA) in CDLA/3484/2007. Nonetheless, he added that each case would turn on its own particular facts or circumstances. His comments, in paragraph 9 of his decision, that there may be cases where psychological problems such as anxiety or depression may mean that a claimant will feel safe and secure in a car but not when walking, are of significance. The decision of Mrs Commissioner Brown was also endorsed by Upper Tribunal Judge Wikeley in CDLA/722/2012 but he also noted the further reasoning of Mr Commissioner Mesher in CDLA/3484/2007. In CDLA/722/2012 the judge concluded, in paragraph 24:

 

'24. In those circumstances I take the view that the FTT's findings of fact and reasons as set out in paragraph 20 above are simply not adequate and amount to a further error of law. The FTT needed to make more specific findings of fact about e.g. the effect of the appellant's learning difficulties, his literacy problems, his ability to ask strangers for and understand directions, his ability use a mobile telephone, etc. The question of the use of different types of evidence in relation to familiar and unfamiliar routes is the subject of some very helpful guidance by Mrs Commissioner Parker in reported decision R(DLA) 2/08 (at paragraphs 11-15).'

 

15. I would also refer to my own comments in paragraph 24 of C50/10-11(DLA) :

 

'It is, in my view, a leap too far from the principle that an ability to drive on familiar routes can and should be taken into account in assessing the ability to walk without guidance or supervision to the direct assertion, in the instant case, that an ability to drive necessarily means that an individual does not require guidance and/or supervision while walking outdoors on routes which are not familiar.'

 

16. In the case which is presently before me, and as Mr Donnelly notes, there is an emphasis in the statement of reasons for the appeal tribunal's decision, and in connection with its reasoning as to whether the conditions of entitlement to the lower rate of the mobility component of DLA were satisfied, on the appellant's ability to drive. Her ability to drive had to be assessed in the context of the other evidence which was before the appeal tribunal. In that respect, I note that the appellant's evidence was that her driving was not on a regular basis and was undertaken on routes which were familiar to her.

 

17. In the statement of reasons there is a reference to the appellant continuing to go for walks with the rider that when she did so she was 'allegedly' accompanied by her daughter. The appeal tribunal had noted the appellant's evidence that she was able to walk her dog in the mornings accompanied by her daughter, was able to walk around shops but '... did not like walking on her own.' As was noted by Mr Donnelly, the healthcare professional (HCP), in the report of the examination conducted in connection with the decision-making process in connection with entitlement to employment and support allowance (ESA), conducted on 23 July 2014, recorded, in a description of a typical day:

 

'She will go to the shop 1-2 times a week. She will have her daughter go with her due to anxiety. She can get anxious worrying about whether she has enough money. She will avoid contact with others by keeping her head down. She will get a lift to the shops, which is 3 miles away. She will spend 10-15 minutes in the shop. Her daughter will carry the shopping due to her pain. She does drive when required. The last she drove was yesterday for 10 minutes. She drives a manual car.'

 

18. Based on that evidence, the HCP gave the opinion that descriptor (b) in Activity 15 in Part of Schedule 2 to the Employment and Support Allowance Regulations (Northern Ireland) 2008, as amended, was applicable. That descriptor is:

 

'Is unable to get to a specified place with which the claimant is familiar, without being accompanied by another person'

 

19. It is unclear from the statement of reasons for the appeal tribunal's decision why the appeal tribunal rejected the appellant's consistent evidence that she required her daughter to be with her when she was walking out of doors. In this respect the use of the phrase 'allegedly', without an explanation as to why uncertainty arose, is incongruous. Further, it is clear, in any event, that as with her driving, the appellant confined any walks, or other journeys on foot, to areas or locations which were familiar to her. There is no indication why the evidence which was before the HCP, and which was consistent with the evidence which had been given in connection with the claim to DLA, was rejected. Additionally, the appeal tribunal, in its assessment of the appellant's mobility, has made only a passing reference to the conclusions of the HCP in the report of the examination that the appellant was unable to get to a specified place with which she is familiar, without being accompanied by another person. Finally, the appeal tribunal's conclusions that the appellant '... could ask for directions in a strange place if required' is at odds with her evidence that she avoided contact with others in her local shop.

 

The appellant's other grounds for appealing

 

20. Having found, for the reasons which are set out above, that the decision of the appeal tribunal is in error of law, I do not have to consider the appellant's other grounds for appealing. I would wish, however, to recognise the contribution which has been made by Ms McCaughey in advancing arguments on the appellant's behalf and the response from Mr Donnelly.

 

21. I have noted that one of the grounds advanced by Ms McCaughey, and which was supported by Mr Donnelly, was that the record of proceedings for the appeal tribunal hearing does not record that she had made an application for an adjournment. Further, the record of proceedings did not also record that the appeal tribunal also adjourned during the course of the hearing. In support of this ground, Ms McCaughey has produced notes on the oral hearing which she recorded in her work 'Case Notes Report' on the day of the oral hearing.

 

22. In his written observations on the application for leave to appeal, Mr Donnelly has addressed this issue at some length and provided background jurisprudence on the duties of an appeal tribunal in these circumstances.

 

23. Having found that the decision of the appeal tribunal is in error of law on another basis, I have not addressed this particular ground. In order to do so I might have wished to request comment from the LQPM on the specific issue which would have delayed the disposal of the appeal,

 

Disposal

 

24. The decision of the appeal tribunal dated 2 December 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.

 

25. 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 11 July 2014, which decided that the appellant did not satisfy the conditions of entitlement to DLA from and including 4 June 2014;

 

(ii)   the Department is directed to provide details of any subsequent claims to DLA 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);

 

(iii) 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

 

(iv) 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): Kenneth Mullan

 

Chief Commissioner

 

 

 

1 February 2016