Northern Ireland - Social Security and Child Support Commissioners' Decisions

JS-v-Department for Communities (DLA) [2016] NICom 81

 

Decision Nos:  C32/16-17(DLA) & C33/16-17(DLA)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

DISABILITY LIVING ALLOWANCE

 

 

Application by the claimant for leave to appeal

and appeal to a Social Security Commissioner

on a question of law from a Tribunal’s decision

dated 19 June 2014

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.     For the reasons which are set out below I am satisfied that there are two applications for leave to appeal before the Social Security Commissioner.

 

         The first application for leave to appeal

 

2.     The first application for leave to appeal is against a decision of an appeal tribunal dated 19 June 2014.  The appeal tribunal refused the appellant’s appeal against a decision of the Department dated 9 May 2013.  This had the effect of confirming the decision dated 9 May 2013 to the effect that there were grounds to supersede an earlier decision of the Department dated 27 March 2006 and that the appellant was entitled to the lower rate of the mobility component and the middle rate of the care component of disability living allowance (DLA) from and including 9 May 2013.

 

3.     In respect the first application I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.  This appeal will be referred to as ‘Appeal No 1’ throughout the remainder of this document.

 

4.     The decision of the appeal tribunal dated 19 June 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.  I would ask the Legally Qualified Panel Member (LQPM) of the appeal tribunal to note that the basis on which I have found the decision of the appeal tribunal to be in error of law is marginal.  I have set aside the decision of the appeal tribunal with a degree of reluctance given the appeal tribunal’s careful and judicious management of the other aspects of the appeal, and its circumspectly prepared record of proceedings and statement of reasons.

 

5.     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.

 

6.     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 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.

 

7.     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 9 May 2013 in which a decision maker of the Department superseded an earlier decision of the Department dated 27 March 2006 and decided that, accordingly, the appellant was entitled to the lower rate of the mobility component and the middle rate of the care component of DLA from and including 9 May 2013;

 

(ii)  the appellant will wish to consider what was said at paragraph 77 of C15/08-09 (DLA) concerning the powers available to the appeal tribunal and the appellant’s options in relation to those powers;

 

(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.

 

         The second application for leave to appeal

 

8.     The second application for leave to appeal is against a decision of an appeal tribunal dated 19 June 2014.  The appeal tribunal refused the appellant’s appeal against a decision of the Department dated 18 December 2013, as revised on 22 January 2014.  This had the effect of confirming the decision dated 18 December 2013, as revised on 22 January 2014 to the effect that there were no grounds to supersede the Departmental decision dated 9 May 2013.

 

9.     In respect of the second application I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.  This appeal will be referred to as ‘Appeal No 2’ throughout the remainder of this document.

 

10.   The decision of the appeal tribunal dated 19 June 2014 is not in error of law.  Accordingly, the appeal to the Social Security Commissioner does not succeed.

 

         Background

 

11.   On 10 June 2004 a decision-maker of the Department decided that the appellant was entitled to the higher rate of the mobility component and the lowest rate of the care component of DLA from 8 May 2004 to 7 May 2006.  On 27 March 2006 another decision maker issued a decision which superseded the decision dated 10 June 2004 and decided that the appellant was entitled to the higher rate of the mobility component and the middle rate of the care component of DLA from and including 30 December 2015.

 

12.   On 9 May 2013 (Appeal No 1) the decision dated 27 March 2006 was superseded and it was decided that the appellant was entitled to the lower rate of the mobility component and the middle rate of the care component of DLA from and including 9 May 2013.  The appellant appealed against the decision dated 9 May 2013.  The appeal proceeded to an oral hearing following which there was an element of confusion as to whether the appeal had been withdrawn.  To clarify matters the then President of Appeal Tribunals for Northern Ireland determined on 26 February 2014 that the appeal should be re-listed for oral hearing.

 

13.   On 18 December 2013 (Appeal No 2) it was decided that there were no grounds to supersede the decision dated 9 May 2013.  On 21 January 2014 a decision-maker decided to reconsider but not revise the decision dated 9 May 2013.  The decision of 21 January 2014 did, however, remove the appellant’s entitlement to DLA.

 

14.   On 22 January 2014 the decision dated 21 January 2014 was revised and the appellant’s entitlement to the lower rate of the mobility component and the middle rate of the care component of DLA from and including 9 May 2013 was reinstated.  An appeal against the decision of 22 January 2014 was received on 22 January 2014.

 

15.   Following an earlier adjournment the substantive oral hearing of the appeal took place on 19 June 2014.  The appellant was present and was accompanied by her daughter.  There was a Departmental Presenting Officer present.  The appeal tribunal allowed the appeal and confirmed the decision dated 22 January 2014.

 

16.   On 4 November 2014 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS).  On 11 November 2014 the application for leave to appeal was refused by the LQPM.  The significance of that determination by the LQPM is explored in further detail below.

 

         Proceedings before the Social Security Commissioner

 

17.   On 18 December 2014 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 19 December 2014 observations on the application were requested from Decision Making Services (‘DMS’).  In written observations dated 15 January 2015, Mr Hinton, for DMS, opposed the application on the grounds submitted by the appellant.

 

18.   Written observations were shared with the appellant on 16 January 2015.  On 21 May 2015 the Legal Officer wrote to Mr Hinton seeking clarification as to whether two appeals in relation to the appellant were heard on the same date and requesting further details of the decision-making process giving rise to the appeals.  On the same date the written observations were shared with the appellant.

 

19.   On 5 June 2015 further correspondence was received from the appellant.  On 8 June 2015 a further submission was received from Mr Hinton in connection with the request made by the Legal Officer on 21 May 2015.  On 16 June 2015 a further submission was received from Mr Hinton.  On 8 July 2015 further correspondence was received from the appellant.

 

20.   On 9 September 2015 correspondence was forwarded to the appellant advising her of sources of representation and permitting her to have four weeks to seek representation.  On 2 November 2015 correspondence was forwarded to the appellant seeking clarification as to whether she had forwarded correspondence to the former address of the Office of the Social Security Commissioners.  On 27 November 2015 reminder correspondence was forwarded to the appellant.

 

21.   On 30 November 2015 further correspondence was received from the appellant which was shared with Mr Hinton on 1 December 2015.  On 21 January 2016 correspondence was forwarded to the appellant in which she was asked to clarify whether she had sought representation.  Further correspondence was received from the appellant on 29 January 2016 which was shared with Mr Hinton on 3 February 2016.

 

22.   On 3 March 2016 I directed an oral hearing of the application for leave to appeal.  The oral hearing was originally listed for 14 April 2016.  On 12 April 2016 correspondence was received from the appellant in which she sought a postponement of the application.  The appellant apologised for the late request for a postponement and submitted that the basis of the application was that she now had representation from the Law Centre (Northern Ireland) and that additional time was required by her representative to obtain additional papers.

 

23.   The application for a postponement was granted and the oral hearing was re-listed for 9 June 2016.  On 1 June 2016 correspondence was received from Mr Hatton in which he confirmed that he would attend the oral hearing to represent the appellant.  He provided a written submission and noted that the grounds set out therein represented the sole grounds now relied on by the appellant.  He indicated that he would not be pursuing any grounds relating to an infringement of human rights.

 

24.   The appellant was present at the oral hearing of the application and was accompanied by her daughter.  She was represented by Mr Hatton.  The Department was represented by Mr Hinton.  I am grateful to both representatives for their cogent oral submissions and for the co-operative approach taken to the resolution of the procedural issues which had arisen.

 

         Errors of law

 

25.   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?

 

26.   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.”

 

         The procedural issues which have arisen

 

27.   It is now clear that an appeal tribunal heard and determined two appeals on 19 June 2014.  These were appeals against the Departmental decisions of 9 May 2013 and 18 December 2013, as revised on 22 January 2014.  Each appeal had been registered in TAS with a different reference number.  The appeal tribunal prepared a record of proceedings which was common to both appeals but annotated separate copies of the record of proceedings as ‘Appeal No 1’ (appeal against the Departmental decision of 9 May 2013) and ‘Appeal No 2’ (appeal against the Departmental decision of 18 December 2013).  There is nothing wrong with that approach.  The appeal tribunal prepared separate statements of reasons for each individual appeal.  Once again, that was the correct approach to take.

 

28.   On 6 October 2014 the statement of reasons in connection with Appeal No 2 was sent to the appellant.  On 4 November 2014 an application for leave to appeal to the Social Security Commissioner was received in TAS.  This application included the TAS reference number for Appeal No 2.  On 11 November 2014 the application for leave to appeal was refused by the LQPM.  On 8 December 2014 the application for leave to appeal was renewed before the Social Security Commissioner.  This narrative, agreed to by Mr Hatton and Mr Hinton, confirms that there is no difficulty with me having jurisdiction to determine the application for leave to appeal in connection with Appeal No 2.

 

29.   In the file of papers which is before me is a copy of a second application for leave to appeal which is dated 31 October 2014.  I am satisfied that this application for leave to appeal was prepared by or on behalf of the appellant.  The content of the application is in the same handwriting as that referred to in the previous paragraph.  The application is stamped as having been received in TAS but it is impossible to make out the date on which it was received.  The application does not include any TAS reference number which would permit the clerk to cross-refer it to a particular appeal.  I am satisfied, however, that the application for leave to appeal dated 31 October 2014 was intended to be an application for leave to appeal against the decision of the appeal tribunal in Appeal No 1.

30.   I have been provided with a copy of the TAS file relating to Appeal No 1.  It appears that the application dated 31 October 2014 was not added to the TAS file in connection with Appeal No 1.  Accordingly it was not placed before the LQPM for determination.

 

31.   The application is now before me.  Regulation 9 of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999, as amended, provides:

 

(1)  An application to a Commissioner for leave to appeal against the decision of an appeal tribunal may be made only where the applicant has sought to obtain leave from the chairman and leave has been refused or the application has been rejected.

 

(2)  Subject to paragraph (3), an application to a Commissioner shall be made within one month of notice of the refusal or rejection being sent to the applicant by the appeal tribunal.

 

(3)  A Commissioner may for special reasons accept a late application or an application where the applicant failed to seek leave from the chairman within the specified time, but did so on or before the final date.

 

(4)  In paragraph (30) the final date means the end of a period of 13 months from the date on which the decision of the appeal tribunal or, if later, any separate statement of the reasons for it, was sent to the applicant by the appeal tribunal.

 

32.   It is clear that the conditions of regulation 9(1) and (2) have not been satisfied.  Regulation 27 of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999, as amended, provides:

 

‘Any irregularity arising from failure to comply with the requirements of these Regulations shall not by itself invalidate any proceedings, and the Commissioner, before reaching his decision, may waive the irregularity or take steps to remedy it.’

 

33.   I have sought to take steps to remedy the irregularity by seeking a copy of the TAS file to clarify whether the LQPM did make a determination in connection with the application for leave to appeal.  As there is no evidence that he did so I now exercise my discretionary power to waive the irregularity of a failure to comply with regulation 9(1) and (2).  I do so in the knowledge that Mr Hinton, at the oral hearing, indicated that he had no objection to my rectifying the procedural difficulties which arise, in this manner.  I am, accordingly, satisfied that I have jurisdiction to determine the application for leave to appeal in connection with Appeal No 1.

 

34.   I would add that my determination in connection with Appeal No 1 is based on the unusual factual circumstances which arise in this case and must not be taken as a precedent for each other case in which the requirements of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999, as amended, have not been satisfied.

 

         Submissions of the parties

 

35.   In connection with Appeal No 1, Mr Hatton noted that the decision under appeal was that of the Department dated 9 May 2013.  As was noted above, this decision superseded the earlier Departmental decision dated 27 March 2006 and decided that the appellant was entitled to the lower rate of the mobility component and the middle rate of the care component of DLA from and including 9 May 2013.  Under the decision dated 27 March 2006, the appellant had been entitled to the higher rate of the mobility component and the middle rate of the care component of DLA.  Accordingly the decision dated 9 May 2013 was less advantageous to the appellant in reducing her entitlement to the mobility component from the higher to the lower rate.

 

36.   The appellant’s entitlement to the middle rate of the care component remained the same.  The decision of the appeal tribunal in Appeal No 1 was to confirm the decision dated 9 May 2013.  In the record of proceedings for the appeal tribunal decision it was noted that the Presenting Officer did not seek to challenge the award of entitlement to the lower rate of the mobility component and the middle rate of the care component of DLA.  In the statement of reasons for the appeal tribunal’s decision it was noted that the Department did not seek to challenge the basis for the existing award and that the appeal tribunal found no reason to interfere with it.  At the oral hearing before me, Mr Hatton submitted that he had no concerns about this aspect of the appeal tribunal’s decision.  Mr Hinton agreed.

 

37.   Mr Hatton submitted that the appellant’s main disquiet about the decision dated 9 May 2013 was the Department’s decision to supersede and reduce the entitlement to the mobility component from the higher to the lower rate.  Mr Hatton noted that the appeal tribunal had reminded itself that as the decision of 9 May 2013 was a supersession the onus of proof lay on the Department ‘ … to prove that on the balance of probabilities grounds existed on the 9^th May 2013 for them to supersede the decision of 27^th March 2006.’  He observed that in the appeal submission, it had been submitted that the supersession ground was that to be found in regulation 6(2)(a)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, (the 1999 Regulations), namely that there had been a change of circumstances since the decision of 27 March 2006 had effect.  More precisely it was asserted that the evidence demonstrated that there had been an improvement in the appellant’s walking ability.

 

38.   Mr Hatton noted that there had been a long history of DLA decision-making in connection with the appellant.  She was first awarded entitlement to the higher rate of the mobility component of DLA in April 1994.  There had been a history of claims, renewal claims and review.  Until the decision dated 9 May 2013 the appellant had continued to retain her entitlement to the higher rate of the mobility component and had done so without interruption for a period of nineteen years.

 

39.   Mr Hatton referred to the medical evidence which had been adduced in connection with the earlier decision-making.  He noted two reports from the appellant’s former General Practitioner (GP) dated 24 May 2004 and 27 February 2006.  The report dated 24 May 2004 had been referred to by the appeal tribunal in the statement of reasons for its decision.  Mr Hatton observed that the format of the 2004 and 2006 reports were such that the GP was asked to indicate the difficulty his/her patient would experience when walking on level ground.  In the 2004 report the GP had observed that the maximum distance which the appellant could walk before the onset of severe discomfort was less than fifty metres and that she would use a stick as she was quite unsteady on her feet.  In the 2006 report, the GP noted the maximum distance as twenty to fifty metres, that the appellant had a slow gait and limp and used a stick.  Mr Hatton noted that the GP who completed the reports in 2004 and 2006 had been the appellant’s GP for many years.  By the time a further report was requested by the Department in 2013, her original GP had retired and the 2013 report was completed by another GP.  Mr Hatton also noted that the format of the 2013 report was such that the GP was not requested to comment on maximum distances.  Mr Hatton submitted that the starkness of the 2013 report might have convinced the appeal tribunal that there had to have been some sort of change.

 

40.   Mr Hatton submitted that while the appeal tribunal had referred to various pieces of medical evidence in the record of proceedings for the appeal tribunal hearing and had the appellant’s GP records before it, the appeal tribunal had placed a strong reliance on the a report of an examination conducted by an Examining Medical Practitioner (EMP) on 25 April 2013.  He asserted that the tribunal’s duty was to decide whether the decision-maker, on 9 May 2013, did have grounds to supersede the earlier decision dated 27 March 2006.  More specifically, the tribunal was tasked with deciding whether the decision-maker was correct in determining that there was an improvement in the appellant’s walking ability.  He submitted that when one considered the statement of reasons for the appeal tribunal’s decision, it was clear that the only evidence which referenced an improvement in the appellant’s walking ability was the report of the EMP.  Mr Hatton asserted that there were three other pieces of evidence before the appeal tribunal which supported the appellant’s contrary assertion that there had been no improvement in her walking ability, no consequent relevant change of circumstances and, accordingly, no grounds to supersede the decision dated 27 March 2006.

 

41.   The first piece of evidence referred to by Mr Hatton was a report from a Doctor C, a Consultant in Anaesthesia and Pain Management, and dated 27 September 2013.  A copy of the relevant report is attached to the end of Tab No 18 in the appeal submission.  Tab No 18 is, itself, a copy of ‘DLA 434 SUMM (A)’ form signed and dated by the appellant on 10 November 2013.  There is no Departmental date stamp of receipt on the copy of the form but the report from Dr C is date stamped as having been received in the Department on 6 December 2013.  I pause here to observe that I am certain that the report from Dr C was adduced by the appellant in connection with the submission of form ‘DLA 434 SUMM (A)’ and in support of the appellant’s request to have the decision of 9 May 2013 looked at again on the basis of a further change in her circumstances.  I am also certain that the report was before the appeal tribunal as part of the original appeal submission.  Mr Hatton and Mr Hinton did not demur from those conclusions.  Mr Hatton submitted that the content of the report is strongly supportive of the appellant’s contention that there had been no relevant change in her circumstances.  He submitted that while the report is dated 27 September 2013, and, accordingly post-dated the decision under appeal, it was very likely to reflect the position as it was at the date of the decision.  I return below to the relevance of this evidence to the issues arising in the appeal and the appeal tribunal’s assessment of it.

 

42.   The second piece of evidence referred to by Mr Hatton was an undated report from EG an Occupational Therapist.  At the oral hearing of the application for leave to appeal, Mr Hatton made reference to another dated report from EG, in the belief that the dated report had been before the appeal tribunal.  Following discussion, it was agreed that the report from EG which was before the appeal tribunal was that which was undated.  A copy of the relevant report is in the file of papers which is before me.  Mr Hatton observed that in the record of proceedings for the appeal tribunal hearing, the appeal tribunal had noted that it had before it the undated report from EG and had made further reference to the report when recording the submissions which had been made by the appellant.  I observe, at this stage, that there were two errors in how EG’s name was recorded in the record of proceedings but nothing turns on that.  Mr Hatton asserted that there had been no reference to the report from EG in the appeal tribunal’s statement of reasons.

 

43.   Once again, Mr Hatton submitted that the contents of the report from EG supported the appellant’s contentions that there had been no improvement in her medical condition, or her walking ability sufficient to support a decision by the Department that there had been a relevant change of circumstances.  Once again, I return below to the relevance of this evidence to the issues arising in the appeal and the appeal tribunal’s assessment of it.

 

44.   The final piece of evidence referred to by Mr Hatton was one part of the report of the examination conducted by the EMP.  More specifically, Mr Hatton referenced the penultimate sentence of paragraph 2 of section 1 of the report.  Here the EMP has recorded:

 

‘She had MRI in recent months has shown [sic] significant degenerative changes in her back including disc disease.’

 

45.   Mr Hatton conceded that the information which is recorded in section 1 of the reports prepared by EMPs reflects the statements made by those who are being examined and that there was no independent evidence to confirm that the outcome of the MRI scans was as described by the appellant.  He submitted though that the evidence was supportive of the appellant’s assertions.  I will address the relevance of this evidence below and the manner in which it was assessed by the appeal tribunal.

 

46.   Mr Hatton also made reference to the appeal tribunal’s conclusions, in the statement of reasons for its decision, that:

 

‘We also note that the GP notes and records do not in any way substantiate claims to be unable or virtually unable to walk.’

 

47.   Recalling that the burden of proof was on the Department to show that there were grounds to supersede, Mr Hatton submitted that it had always been the appellant’s case that there had been no change in her medical condition.  He wondered whether there was an onus on the appellant to continue to visit her GP during the period of her entitlement to benefit to ensure that there was an ongoing record within her notes that there was no relevant change.  To require the appellant so to do would be wholly unreasonable.  Mr Hatton queried, therefore, the weight to be attached to the appeal tribunal’s general conclusions on the GP records.

 

48.   In reply, Mr Hinton submitted that the appeal tribunal had undertaken a thorough review of all of the evidence which was before it and had weighed and assessed that evidence in the proper manner.  He conceded that it might have been appropriate for the appeal tribunal to make a specific reference to the report dated 27 September 2013 from Dr C and the other items of evidence referred to by Mr Hatton.  Mr Hinton asserted that the appeal tribunal had placed the contents of the EMP report in the proper context.  In this regard, he noted that the appeal tribunal had concluded that the opinion of the EMP that the appellant was able to walk at least 800 yards with a stop after 400 yards to be optimistic.  This was a mark of the appeal tribunal’s proper assessment of the evidence which it did not simply accept without demur.

 

49.   Mr Hinton noted that the appeal tribunal had rejected the appellant’s own oral evidence which it was entitled to do.  He submitted that the conclusions of the appeal tribunal were wholly sustainable on the evidence, and all of which are supported by relevant evidence.

 

50.   In respect of Appeal No 2, Mr Hatton noted that the decision under appeal was that of the Department dated 18 December 2013, as revised on 22 January 2014.  As was noted above, on 18 December 2013 it was decided that there were no grounds to supersede the decision dated 9 May 2013.  Mr Hatton conceded that the appeal tribunal was correct to note that the onus of proof lay on the appellant.  Accordingly she would have to demonstrate that in the period between May and December 2013 there had been a deterioration in her medical condition.  He also accepted that the primary focus in the proceedings before the Social Security Commissioner had been to challenge the decision of 9 May 2013 and, more specifically, the removal of entitlement to the higher rate of the mobility component of DLA.  No specific issues had been raised in connection with the decision dated 18 December 2013.  He made brief arguments about the relevance of the reports from Dr C and EG and the fact that these had not been referred to in the statement of reasons for appeal tribunal’s decision in Appeal No 2.  He submitted that it was arguable that the reports from EG, both dated and undated, were supportive of a contention that there had been a change in the relevant period.

 

51.   In reply, Mr Hinton repeated that the appeal tribunal had undertaken a thorough review of all of the evidence which was before it and had weighed and assessed that evidence in the proper manner.  He referred to specific aspects of the EMP report, which, he submitted, had been prepared in connection with the decision-making process relating to benefit entitlement.  The appeal tribunal had placed the contents of the EMP report in the proper context.  The appeal tribunal had taken into account the factors relevant to an assessment on inability or virtual inability to walk.

 

         Analysis

 

52.   I begin with Appeal No 1.  The record of proceedings for the appeal tribunal hearing runs to five A4 pages, and from this it is clear that the appeal tribunal went about the forensic evidence-gathering process in a careful and thorough manner.  Equally, the appeal tribunal has provided an analytical statement of reasons for its decision with respect to the higher rate of the mobility component of DLA.  Where then did the appeal tribunal go wrong in law?

 

53.   I am of the view that there is strength in Mr Hatton’s general submission concerning the significance of the continuity of the appellant’s awards of entitlement to DLA.  The appellant had an entitlement to the higher rate of the mobility component of DLA for a sixteen year period from 1994 to 2013.  That entitlement continued despite being subject to ongoing review by the Department through the requirement on the appellant to submit renewal claim forms.  It is also of significance that the awards made from 2004 to 2005 and 2006 to 2013 were supported by medical evidence from the appellant’s GP and that the Department was satisfied, on the foot of that evidence, to continue the entitlement to DLA.  It is the case, of course, that entitlement to DLA does not last for a lifetime and that the Department is entitled to undertake enquiries to determine whether an existing entitlement should continue.  It was in that context that the decision of 9 May 2013 eventually came about.

 

54.   As was noted above, Mr Hatton has made reference to three pieces of evidence which, he submits, was not properly assessed or, in the alternative, weighed by the appeal tribunal.  I start with the penultimate sentence of paragraph 2 of section 1 of the report the EMP.  This was the statement by the appellant and recorded by the EMP concerning MRI scans and their outcomes.  Mr Hatton quite rightly conceded that with respect to the appellant, what is recorded in section 1 of the reports prepared by EMPs reflects the statements made by those who are being examined and that there was no independent evidence to confirm that the outcome of the MRI scans was as described by the appellant.  He made the general statement, though, that the evidence was supportive of the appellant’s assertions of no change in her medical condition.

 

55.   The appeal tribunal, in the statement of reasons for its decision, makes no reference to the discrete entry in the report of the EMP, referred to by Mr Hatton.  I find no fault with that.  The relevance of that particular entry was not cited to the appeal tribunal in argument.  If it had been so cited then the appeal tribunal would have been obliged to assess its relevance or significance.  I am also of the view that an appeal tribunal, in exercising its inquisitorial role, may be obliged to comment on aspects of the evidence which is before it, even when the relevance of that evidence has not been raised by a party to the proceedings.  That does not arise here, however.

 

56.   I have noted, in addition, that the appeal tribunal had before it correspondence from Dr C, dated 5 June 2014.  It is clear that this correspondence was prepared by Dr C in response to a query from the appellant concerning the significance of x-rays and MRI scans of the back and their limited diagnostic value for back pain.  Dr C, in his reply to the appellant, makes general statements on these discrete questions to the effect that the ‘… majority of back pain problems are not illustrated through spinal imaging in a reliable manner.’  I am of the view, therefore, that even if the issue of the relevance of the entry in the EMP report had been raised in the proceedings, then the appeal tribunal would have been entitled to conclude that it did not have the significance which it did.

 

57.   I turn to the second piece of evidence referred to by Mr Hatton now agreed to be an undated report from EG an Occupational Therapist.  In this report EG makes reference to the appellant’s medical problems and the interventions which have been undertaken on her behalf to assist her day-to-day function.  Absent the incorrect references to the name of EG, the appeal tribunal has acknowledged that it had her report before it.  It is noted in the ‘Documents Considered’ section of the record of proceedings and there is a reference to the contents of the report in the general record of proceedings itself in connection with the appellant’s discrete submissions on its significance.

 

58.   There is no reference to the report from EG in the statement of reasons for the appeal tribunal’s decision.  There is strength in the argument that if a party to the proceedings before an appeal tribunal, including the appellant, adduces evidence in support of issues raised by the appeal and, as in the instant case, makes a specific reference to that evidence during the course of oral submissions, then the appeal tribunal should acknowledge that in the statement of reasons and address the weight of the evidence and the parallel submissions.

 

59.   I am satisfied, though, that, on balance, there is no error in the approach taken by the appeal tribunal.  The appellant’s oral submissions in connection with the report from EG were not in the context of there being no change in her medical condition, an issue which was relevant to the appeal against the Departmental decision of 9 May 2013.  It is clear that during the course of the oral hearing the report was referred to by the appellant in the context that her condition had deteriorated.  The record of proceedings makes that clear.  Further, it is arguable that the appeal tribunal has, in any event, addressed the evidence provided by EG.  The appeal tribunal has acknowledged that the appellant was genuine, has had problems over a number of years and that her walking ability is limited and that she requires an aid to assist with walking.  Accordingly, I am not satisfied that the report from EG has the significance which Mr Hatton has placed on it in the context of his arguments concerning no change in the appellant’s medical condition.

 

60.   I turn, therefore, to the third piece of evidence referred to by Mr Hatton.  This is from Dr C dated 27 September 2013.  As was noted above, a copy of the relevant report is attached to the end of Tab No 18 in the appeal submission.  I have already noted that I am certain that the report from Dr C was adduced by the appellant in connection with the submission of form ‘DLA 434 SUMM (A)’ and in support of the appellant’s request to have the decision of 9 May 2013 looked at again on the basis of a further change in her circumstances.  I am also certain that the report was before the appeal tribunal as part of the original appeal submission.  What did Dr C say?  He states that he and the other members of staff in his Department had made a collective decision not to complete forms in connection with entitlement to DLA or supply letters to the Department.  He adds:

 

‘The only comment I can make is that you have been attending us regularly for a considerable number of years with a back pain issue, have been receiving treatment from us and that this is unlikely to improve.’

 

61.   That the appellant had been attending the Dr C’s ‘Chronic Pain Management Unit’ on a regular basis is corroborated by the fact that there are other pieces of correspondence in the file of papers which is before me, from Dr C and that the appeal tribunal, which had the benefit of accessing the appellant’s GP records, refers to attendances at the Pain Clinic and reports from Dr C.  It is clear, therefore, that Dr C has had an active part to play in the management and treatment of the appellant’s back pain and is in a position to comment, authoritatively on her medical condition and its prognosis.  His report of 27 September 2013 has, therefore to be seen in the context of his involvement with the appellant over a number of years.

 

62.   In the statement of reasons for the appeal tribunal’s decision, there is no specific reference to Dr C’s report of 27 September 2013.  There is a reference to the appellant’s GP records which would, of course, have included the other entries concerning attendances at Dr C’s Pain Clinic and the consequent medical reports prepared for her GP.  It is unlikely that the correspondence dated 27 September 2013 was in the appellant’s GP records.  It was prepared at the request of the appellant’s then representatives.  Most significantly of all, it is a piece of evidence which makes specific reference to a key aspect of the appellant’s case before the appeal tribunal, namely that there has been no change in her medical condition and that there would not ever be such a change.  In this regard the key phrase is ‘… this is unlikely to improve.’

 

63.   As been set out in some considerable detail above, the appellant’s main disquiet about the decision dated 9 May 2013 was the Department’s decision to supersede and reduce the entitlement to the mobility component from the higher to the lower rate.  The Department’s case was that, in law, there had been a relevant change of circumstances and that, in fact, the evidence demonstrated that there had there had been an improvement in the appellant’s walking ability.  Even before Mr Hatton’s welcome and helpful involvement in the appeal, it has been the appellant’s case that the Department’s decision was wrong.  She had asserted that there had been no improvement in her walking ability and, as a consequence, no relevant change of circumstances.  The appellant was proactive, through her initial representatives, in seeking to adduce evidence which supported her challenge to the Department’s decision.  Dr C’s report of 27 September 2013 was obtained in that specific context.  More generally it was reflective of her ongoing involvement with Dr C and his consequent licence to comment on her medical condition and its prognosis.

 

64.   I find the issue to be marginal.  I am satisfied, however, that as the issue of no improvement had been raised by the appellant, as a direct challenge to the Department’s decision that there had been such an improvement, the appeal tribunal was obliged to address that issue and all evidence adduced in support of it.

 

65.   Further, the appellant was entitled to know, through the statement of reasons, what was the appeal tribunal’s determination in connection with the issue, and the reasons for its conclusions in connection with it.  In this regard, I have noted the statement of reasons in the appeal tribunal’s statement that:

 

‘We also note that the GP notes and records do not in any way substantiate claims to be unable or virtually unable to walk.’

 

66.   It is possible that the phrasing here is no more than clumsy but it is suggestive that despite the earlier reminder that the onus of proof in the appeal lay on the Department, the appeal tribunal may have been taking the wrong approach.  The appellant was not, in a de novo manner claiming entitlement to the higher rate of the mobility component through an assertion that she was unable or virtually unable to walk.  She was challenging a decision that itself was reversing a previous determination that she was virtually unable to walk by asserting that her virtual inability to walk had not changed.  Moreover she was adducing evidence in support of such a contention.

 

67.   With a large degree of regret, therefore, given the appeal tribunal’s careful and judicious management of the other aspects of the appeal, and its circumspectly prepared record of proceedings and statement of reasons, I find that the decision of the appeal tribunal is in error of law.

 

68.   I address two further matters.  Firstly, I am content that even though the correspondence from Dr C post-dated the decision under appeal, the appeal tribunal would have been entitled to consider it under the principles set out in paragraphs 22 to 33 of my decision in C2/10-11(IB).  Secondly, in all appeals involving a supersession decision, the appeal tribunal is under a duty to consider the date from which any supersession should take effect (‘the effective date of supersession’).  This is not a straightforward issue, and much will depend on the ground for supersession, and the benefit at issue in the appeal.

 

69.   The effective date of supersession rules are set out in Articles 11(5) and (6) of the Social Security (Northern Ireland) Order 1998, and Regulation 7 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, all as amended.  Where an appeal tribunal fails to consider the effective date of supersession rules, or misapplies these, it may find that its decision is in error of law.  In the instant case there is no reference by the appeal tribunal in its statement of reasons to the effective date of supersession.  I do not find, however, that the decision of the appeal tribunal is in error of law.  The issue of the effective date of supersession was set out in sufficient detail and with accuracy in the appeal submission.  I am satisfied, therefore, that in confirming the decision under appeal, the appeal tribunal was confirming the Department’s decision in this regard.

 

70.   I turn to Appeal No 2.  Here the decision under appeal was that of the Department dated 18 December 2013, as revised on 22 January 2014, and in which it was decided that there were no grounds to supersede the decision dated 9 May 2013.  Mr Hatton conceded that the appeal tribunal was correct to note that the onus of proof lay on the appellant.  Looking at the record of proceedings for the appeal tribunal hearing, I note that the appellant was given a specific explanation of what the decision under appeal was and where the burden of proof lay.  The appellant acknowledged that she understood this.

 

71.   Accordingly the appellant would have to demonstrate that in the period between May and December 2013 there had been a deterioration in her medical condition.  The appeal tribunal found that there had been no such deterioration and, in my view, it was correct to do so.

 

72.   As was noted above, the appellant had made a discrete submission that her condition had deteriorated.  She referred to the report from EG, Occupational Therapist, in support of that submission.  As I have already noted, the report from EG is in quite general terms.  Moreover it is arguable that the appeal tribunal has, in any event, addressed the evidence provided by EG.  The appeal tribunal has acknowledged that the appellant was genuine, has had problems over a number of years and that her walking ability is limited and that she requires an aid to assist with walking – all matters set out in EG’s report.  The report does not support a submission that there had been a deterioration in the appellant’s medical condition during the relevant limited period.

 

73.   Otherwise, there is no basis on which it could be said that the decision of the appeal tribunal is in error of law.  Read as a whole, the statement of reasons for the appeal tribunal’s decision provides a detailed explanation of the basis on which the appeal tribunal arrived at its conclusions on the issues before it.

 

 

(signed):  K Mullan

 

Chief Commissioner

 

 

 

19 December 2016