Northern Ireland - Social Security and Child Support Commissioners' Decisions

BB-v-Department for Social Development (DLA) [2016] NICom 57

 

Decision No:  C24/15-16(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 26 May 2015

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.     The decision of the appeal tribunal dated 26 May 2015 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 30 December 2014 a decision-maker of the Department decided that the appellant was not entitled to either component of DLA from and including 27 October 2014.  An appeal against the decision dated 30 December 2014 was received in the Department on 16 January 2015.

 

6.     The oral hearing of the appeal took place on 26 May 2015.  The appellant was present, was accompanied by a friend and was represented.  The appeal tribunal allowed the appeal in part and issued Decision Notices to the following effect:

 

‘Appeal allowed

 

(The appellant) satisfies the criteria for an award of the lowest rate care component of DLA (attention for a significant portion of the day) from and including 27 October 2014 to 26 October 2016.

 

Appeals disallowed

 

(The appellant) does not satisfy the criteria for the award of the mobility component of DLA from and including 27 October 2014.’

 

7.     On 27 July 2015 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS).  On 7 August 2016 the application for leave to appeal was refused by the Legally Qualified Panel Member (LQPM).  

 

         Proceedings before the Social Security Commissioner

 

8.     On 20 October 2015 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 11 November 2015 observations on the application were requested from Decision Making Services (‘DMS’).  In written observations dated 4 December 2015, Mr Donnelly, for DMS, opposed the application on the grounds submitted by the appellant but supported the application on two other identified grounds.  The written observations were shared with the appellant and her representative on 4 December 2015.  On 22 December 2015 correspondence was received from the appellant’s representative which was shared with Mr Donnelly on 5 January 2016.  In correspondence dated 8 January 2016 Mr Donnelly indicated that he had no further submission to make.  On 25 January 2016 the Legal Officer wrote to the appellant’s representative in connection with his correspondence received on 22 December 2015.

 

9.     On 4 March 2016 I accepted the late application for special reasons.  On 18 April 2016 I granted leave to appeal.  In granting leave to appeal I gave, as a reason, that an arguable issue arose as to whether the statement of reasons for the appeal tribunal’s decision is adequate to explain its decision.  On the same date I determined that an oral hearing of the appeal would not be required.

        

         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.”

 

         Analysis

 

12.   In his written observations on the application for leave to appeal, Mr Donnelly made the following submissions:   

 

         ‘Identification of an error in law

 

         While it is the department’s submission that there has been no error in law identified in the grounds put forward by (the appellant), we submit that the tribunal have erred by failing to give adequate reasons for its decision in both the lower rate of the mobility component, and the middle rate care component in respect of night needs.

 

         Lower Rate Mobility Component

 

         In relation to the lower rate of the mobility component, it is submitted that the tribunal has failed to give offer adequate reasons for its decision.  In her self assessment form, as well as in oral evidence to the tribunal, (the appellant) made a number of contentions regarding her need for guidance and supervision when outdoors.  I refer firstly to (the appellant’s) self assessment form.  At page 14 (the appellant) has noted that she occasionally falls when outdoors whilst at page 15 she refers to requiring guidance or supervision when outdoors to avoid danger, or due to anxiety or panic attacks.  (The appellant) claims this is required 7 days per week.  Further at page 16, (the appellant) notes that she needs someone to help her as she gets frightened that she may fall, and that getting around causes her a great deal of anxiety.

 

I refer also to (the appellant’s) comments in page 2 of the record of proceedings:


“Doesn’t go out except for appointments

                  Walking outdoors alone?

                  Gets panicky in case falls down steps”

 

         Therefore it is apparent that (the appellant) has claimed relatively substantive needs which tie in with the lower rate of the mobility component.  The tribunal’s reasoning for not awarding this component are found at pages 2-3 of the reasons for decision:

 

“Lower rate mobility component issues:

 

8. Entitlement to the lower rate mobility component depends upon whether “guidance or supervision” from another person is reasonably required most of the time to enable the claimant to walk outdoors on the level, disregarding her ability to use familiar routes.

 

9. [The appellant] reports that she needs to be accompanied for her own safety.  She reports numbness in her toes, though this is not supported by the medical evidence, and fears falling.  She can, and now does, use a walking aid for support.

 

10. The tribunal cannot identify any reason why (the appellant) needs to be either guided or supervised walking outdoors.”

 

         It is submitted that the reasoning above does not adequately deal with the contended needs of (the appellant).  Paragraph 8 is merely reiterating the criteria for award.  Paragraph 9 deals with the issue of her toes, and assesses that there is no medical evidence to support this, as well as referring to her aids.  However, while it notes (the appellant) contended need for accompaniment, the issue has not actually been addressed.

 

         It is therefore submitted that the tribunal has erred in law by failing to give reasons or adequate reasons for findings on material matters.

 

         Middle Rate Care Component (night needs)

 

         Similarly, it is submitted that the tribunal has failed to offer adequate reasons in respect of the night time needs in this case.  At page 31 of her self assessment form, (the appellant) refers to frequently waking at night with anxiety and fear.  (The appellant) has claimed this occurs 7 nights per week, and that she would require frequent watching over.

 

         Section 72 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 insofar as is relevant provides:

 

“72 (1) Subject to the provisions of this Act, a person shall be entitled to the care component of a disability living allowance for any period throughout which-

 

            (c) he is so severely disabled physically or mentally that, at night,-

 

                  (i) he requires from another person prolonged or repeated attention in connection with his bodily functions; or

 

                  (ii) in order to avoid substantial danger to himself or others he requires another person to be awake for a prolonged period or at frequent intervals for the purpose of watching over him.”

 

         Accordingly there are two separate tests for night time needs in respect of DLA.  Firstly, section 72(1)(c)(i), in relation to prolonged or repeated attention.  Secondly, section 72(1)(c)(ii) which refers to a requirement for watching over for a prolonged period or at frequent intervals.

 

         The tribunal in this instance appear to have adequately dealt with the test for section (i) in respect of prolonged or repeated attention. Page 2, paragraph 4 of the reasons for decision in respect of the care component notes that (the appellant) can get out of bed herself and go to sit in the living room when she cannot sleep.

 

         However, in relation to the issue of watching over, it is submitted that the tribunal have failed to adequately explain its findings. I refer to paragraph 5 of same:

 

“Need for continual supervision/watching over by day or night to avoid substantial danger

 

5. No need has been identified by the Tribunal.”

 

         The tribunal have not addressed (the appellant’s) contentions regarding her requirement for watching over at night, as noted in her self assessment form.  If the tribunal did not believe that (the appellant) had such needs or medical evidence did not support such contentions then they should have said so.  In stating that no needs have been identified the tribunal has erred in law by failing to give reasons or adequate reasons for findings on material matters.’

 

13.   What I would add to Mr Donnelly’s analysis is that the appellant gave oral evidence to the appeal tribunal that she sleeps poorly, rises and goes to sit in her living room.  The appeal tribunal has adopted this evidence in support of its conclusion that the appellant does not, at night, require prolonged or repeated attention in connection with her bodily functions.  In light of the appellant’s statement in her self-assessment form that she frequently wakes at night, has feelings of anxiety and also feels frightened, the inquisitorial role of the tribunal would, in my view, have necessitated further exploration, with the appellant, of her evidence with respect to waking at night and her requirement to rise and sit in another room.

 

14.   I accept and adopt Mr Donnelly’s precise analysis and, for the reasons which he has outlined, agree that the decision of the appeal tribunal is in error of law.

 

15.   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 indicate, however, that I would not have found the decision of the appeal tribunal to be in error of law on the other grounds submitted by the appellant.

 

         Disposal

 

16.   The decision of the appeal tribunal dated 26 May 2015 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.

 

17.   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 30 December 2014, which decided that the applicant was not entitled to DLA from and including 27 October 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)

K Mullan

 

Chief Commissioner

 

 

 

17 August 2016