Northern Ireland - Social Security and Child Support Commissioners' Decisions

JH-v-Department for Communities (DLA) [2016] NICom 69

 

Decision No: C20/16-17(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 4 December 2015

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

1. The decision of the appeal tribunal dated 4 December 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 his 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 21 May 2015 a decision-maker of the Department decided that the appellant was not entitled to DLA from and including 27 March 2015.  The decision dated 21 May 2015 was reconsidered on 25 June 2015 but was not changed.  An appeal against the decision dated 21 May 2015 was received in the Department on 15 July 2015.

 

6. The appeal tribunal hearing took place on 4 December 2015.  The appellant had previously indicated that he was content for the appeal to proceed without an oral hearing by completing form REG2(i)d to that effect and returning it to the Appeals Service (TAS) where it was received on 11 September 2015.  The appeal tribunal allowed the appeal, in part, making an award of entitlement to the lowest rate of the care component of DLA for a two-year fixed period from 27 March 2015 but disallowing entitlement to the mobility component from and including 27 March 2015.

 

7. On 21 March 2016 an application for leave to appeal to the Social Security Commissioner was received in TAS.  On 13 April 2016 the application for leave to appeal was refused by the Legally Qualified Panel Member (LQPM).

 

Proceedings before the Social Security Commissioner

 

8. On 23 May 2016 a further application for leave to appeal was received in the Office of the Social Security Commissioners. On 21 June 2016 observations on the application for leave to appeal were requested from Decision Making Services (‘DMS’).  In written observations dated 6 July 2016, Mr Hinton, for DMS, opposed the application on the grounds submitted by the appellant but supported the application on another identified ground.  The written observations were shared with the appellant on 6 July 2016.

 

9. On 12 September 2016 I granted leave to appeal. When granting leave to appeal I gave, as a reason, that an arguable issue had arisen as to whether the statement of reasons was adequate to explain the appeal tribunal’s decision on certain issues arising in the appeal.  On the same date I directed 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 constructive written observations on the application for leave to appeal, Mr Hinton has made the following submission:

 

‘Whilst (the appellant) has not identified an error in law in the tribunal decision I would submit that the tribunal has in fact erred in law for the following reason. 

 

In the decision notice regarding the care component the following is recorded:

 

“Appeal allowed.  The Appellant is entitled to the amount of low rate care (non meal) for a period of 2 years from 27/3/15”.

 

On perusing the tribunal’s statement of reasons regarding the care component it would appear to me that it has not been made clear on what basis the award shown on the decision notice was made.  The statement of reasons contains four paragraphs.  In the first paragraph the tribunal stated that entitlement to any of the rates of the care component did not result from physical limitations.  The second paragraph stated that (the appellant) did not exhibit noticeable traits of self harm and whilst he may need a degree of motivation in relation to self care this did not amount to frequent attention during the day or night.  In the third paragraph the tribunal stated that (the appellant) would be able to perform the activities associated with the main meal test, he would not be at risk of self harm and would have no problems with motivation.  Finally, the tribunal concluded that in light of all the available evidence, (the appellant) would not require continual supervision by day or night and does not satisfy the requirements for entitlement to any of the rates of award of the care component.

 

Therefore, in light of the above I fail to see how the tribunal’s reasoning leads it to the conclusion in the decision notice that (the appellant) satisfies entitlement to the low rate of the care component.  Consequently, its decision is erroneous in law.’

 

13. The decision notice for the appeal tribunal’s decision in connection with the care component of DLA is completed in handwriting.  I agree that at first glance it appears that the phrase ‘non meal’ has been entered. I am certain that what was meant was ‘main meal’.

 

14. As was noted above, the decision under appeal to the appeal tribunal was that the appellant was not entitled to either component of DLA from and including 27 March 2015.  In the appeal submission, prepared for the appeal tribunal hearing, the Appeals Writer maintained that the Departmental decision was correct.  The decision notice for the appeal tribunal’s decision in connection with the care component of DLA records that the appeal tribunal disagreed with the Departmental decision, allowed the appeal, in part, and made an award of entitlement to the lowest rate of the care component of DLA for a two-year fixed period from 27 March 2015.

 

15. The Department is a party to the proceedings before the appeal tribunal. As a party to the proceedings the Department is entitled to know the legal and evidential basis on which the appeal tribunal arrived at a decision which was contrary to the decision under appeal.  As has been noted by Mr Hinton, the third paragraph of the appeal tribunal’s statement of reasons for its decision in respect of the care component is wholly at odds with a decision that there should be an award of entitlement to the lowest rate of the care component for a two-year fixed period.

 

16. The decision notice for the appeal tribunal’s decision in connection with the care component of DLA appears to record that the award was on the basis that the conditions of entitlement in section 72(1)(a)(ii) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, were satisfied.  The third paragraph of the statement of reasons is redolent of a conclusion that those conditions were not satisfied.  Either the decision notice is wrong or the statement of reasons is wrong.  The appellant’s grounds of appeal make no reference to the appeal tribunal’s decision in respect of the care component and are centred on the appeal tribunal’s decision to refuse entitlement to the mobility component.

 

17. Whatever has happened, I am satisfied that the decision of the appeal tribunal is in error of law and has to be set aside.

 

18. Having concluded, for the reasons which are set out above, that the decision of the appeal tribunal is in error on law, I do not have to consider the appellant’s other grounds for appealing.  I would note, however, that I would not have found the decision of the appeal tribunal to be in error of law on the other grounds cited by the appellant.

 

Disposal

 

19. The decision of the appeal tribunal dated 4 December 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.

 

20. 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 21 May 2015, which decided that the applicant was not entitled to DLA from and including 27 March 2015;

 

(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

 

 

 

24 October 2016