Northern Ireland - Social Security and Child Support Commissioners' Decisions

LL-v-Department for Communities (DLA) ]2017] NICom 51

 

Decision No:  C60/17-18(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 11 August 2016

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.     The decision of the appeal tribunal dated 11 August 2016 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 son’s 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 7 August 2015 a decision maker of the Department decided that the appellant’s son was not entitled to DLA from and including 28 July 2015. On 2 September 2015 correspondence from the appellant was received in the Department in which she requested that the decision dated 7 August 2015 be reconsidered.  Attached to the reconsideration application was medical evidence in support of it.  On 22 September 2015 the decision dated 7 August 2015 was reconsidered but was not changed.  An appeal against the decision dated 7 August 2015 was received on 7 October 2015.

 

6.     On 7 January 2016, the Legally Qualified Panel Member (LQPM) determined that the appeal should be listed as a ‘paper’ hearing.  The appeal was first listed for hearing as a ‘paper’ hearing on 5 February 2016.  The appeal tribunal determined that it would be beneficial to hear from the appellant and adjourned the hearing for the appeal to be relisted for oral hearing.

 

7.     The appeal was relisted as a ‘paper’ hearing on 6 May 2016.  The appeal tribunal noted that it had been listed as a ‘paper’ hearing in error and that the direction of the appeal tribunal on 5 February 2016 for listing as an oral hearing had not been complied with.  The appeal was adjourned with detailed directions.

 

8.     The substantive appeal tribunal hearing took place on 11 August 2016. The record of proceedings for the appeal tribunal hearing notes that the appellant’s representative was not present.  The appeal tribunal also recorded a more general statement that ‘There was no appearance on behalf of any of the parties.’  The appeal tribunal disallowed the appeal and confirmed the decision dated 7 August 2015.

 

9.     On 12 December 2016 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS).  On 13 January 2017 the application for leave to appeal was refused by the LQPM.

 

         Proceedings before the Social Security Commissioner

 

10.   On 3 February 2017 a further application for leave to appeal was received in the Office of the Social Security Commissioner.  On 22 February 2017 observations on the application for leave to appeal were requested from Decision Making Services (DMS).  On 16 March 2017 further correspondence was received from the appellant to which she had attached correspondence from her son’s school.  In written observations dated 20 March 2017, Ms Adams opposed the application on the grounds advanced by the appellant but supported the application on another identified ground.  Written observations were shared with the appellant on 21 March 2017.

 

11.   On 8 August 2017 I granted leave to appeal.  When granting leave to appeal I gave as a reason that it was arguable that the appeal tribunal had failed to properly apply the legislative test with respect to the higher rate of the mobility component of DLA.  On the same date I directed that an oral hearing of the appeal would not be required.

 

         Errors of law

 

12.   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?

 

13.   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

 

14.   In her carefully-prepared written observations, Ms Adams made the following submissions: 

 

‘The tribunal considered the history of (the appellant’s son’s) claim in some detail, referring to previous awards and all the GP and medical records contained therein.  The tribunal preferred the objective evidence from the clinical findings to (the appellant’s) account of the limitations on her son’s functional abilities.  This would indicate to me that it gave full consideration to the appellant’s evidence but it preferred the clinical findings which did not support (the appellant’s son’s) degree of disability and it was within its rights to form this conclusion.  Whilst it accepted (the appellant’s son) has a number of medical conditions, it found that he is not as functionally limited as (the appellant) claims and thereby concluded that the needs arising from same were not so severe as to meet the statutory requirements for an award of DLA.  It has recorded:

 

“We do not wish to take away from the significant cardiac condition the appellant has or the fact his progress at school has been impaired.  The medical evidence is that his cardiac condition is stable.  Whilst there is some fatigue and shortness of breath we do not find that he qualifies for either the mobility or care component because of this.  His learning disability is being addressed but is described as mild and we do not see how this would attract any of the components of this benefit.  We found the guidance given by the respondent’s medical officer was consistent with the evidence and we would be in agreement with the conclusions reached”.

 

 

In respect of the mobility component the tribunal has noted in its reasons:

 

“It is clear from the papers that the appellant was born with a significant heart condition.  He required surgery at a very early age and then has been on a regular cardiac review.  A surgical repair was carried out with good result.  However he still is more fatigued than a child with no heart condition and he suffers from pulmonary regurgitation.  It is likely that in the future will require valve replacements.  We have the advantage of having the result of the recent MRI test which shows a position is unchanged since two years earlier.  Consequently, it would not appear that surgery is imminent.  We would accept the appellant does have restrictions and we note that his mother indicates walking can vary between 50 to 200 m.  The indications however from all the reports are that his condition is stable albeit later on surgery will most likely be needed.  Strenuous exercise would not be advisable.  Applying the test for this benefit we cannot see any entitlement to the mobility component”.

 

Turning now to the higher rate mobility component, section 73 of the Social Security Contributions and Benefits (NI) Act 1992 provides in effect that in order to qualify for the higher rate mobility component a person must be unable or virtually unable to walk.  Regulation 12 of the Social Security (Disability Living Allowance) Regulation (NI) 1992 in so far as relevant provides that a person shall be regarded as being virtually unable to walk if his ability to walk out of doors is so limited as regards to the distance over which or the speed at which or the length of time for which or manner in which he can make progress on foot without severe discomfort.

 

In decision C44/97(DLA) the then Chief Commissioner Martin considered the definition of virtually unable to walk and what was required of adjudicating authorities when applying the test.  He referred to previous guidance from Chief Commissioner Chambers in C3/87(MOB) and at paragraphs 15 stated:

 

“Helpful guidance is also available from Chief Commissioner Chambers in C3/87(MOB), a case concerning mobility allowance which is directly relevant to the present case.  In that case at paragraph 7 Chief Commissioner Chambers stated as follows:-

 

"... In my view the decision of the Court of Appeal should not be interpreted as requiring the Tribunal to provide answers to the four questions raised by the Regulation in terms of a distance, a speed, a time and a description of the child's manner of walking. Undoubtedly, those questions must be specifically addressed and answers given; but to require the Tribunal to attempt to quantify distances, speeds, etc. would be to impose an impossible burden upon them.  It is, moreover, difficult to see what purpose it would serve to provide such answers; as it would remain for the Tribunal to decide whether or not the child was unable or virtually unable to walk.  If there are to be limits of distance, speed, etc marking the level below which claimants qualify for mobility             allowance, it is for Parliament or the Rule-making authority to set them; not the Medical Appeal Tribunal. ..."

 

In its deliberations the tribunal has noted the distance (the appellant’s son) could walk; however, it does not refer to the time, speed or manner of his walking ability.  In failing to address these issues it is my submission that the tribunal has not correctly applied the statutory test and it has failed to provide adequate reasoning why it has deemed (the appellant’s) not to be virtually unable to walk. 

 

 

Based on the above extracts it is evident that that the tribunal has considered (the appellant’s) conditions in full and the medical evidence pertaining to same.  Whilst the tribunal correctly concluded that the appellant was not entitled to any of the care components.  However for the reasons advanced above it is my submission the tribunal has erred in its consideration of the mobility component.’

 

15.   I would add that in PG-v-Department for Communities (DLA) ([2016] NICom 83, (C34/16-17(DLA)), I stated the following, at paragraphs 24 to 28 of my decision:

 

‘24.      In paragraph 19 of her decision in R(DLA) 4/03 the Social Security Commissioner in Great Britain (and former Deputy Commissioner in Northern Ireland) stated the following:

 

‘Perhaps the most litigated area in social security law is the test set out in regulation 12(1)(a)(ii) of the Social Security (Disability Living Allowance) Regulations 1991. The test is expressed in relatively few words contrasted with what has been extensively argued and written on its meaning and application in fact and in law.’

 

25.       Regulation 12(1)(a)(ii) of the 1991 Regulations in Great Britain is in identical terms to regulation 12(1)(a)(ii) of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992, as amended.  It is in the following terms:

 

‘12.—(1) A person is to be taken to satisfy the conditions mentioned in section 73(1)(a) (unable or virtually unable to walk) only in the following circumstances—

 

(a) his physical condition as a whole is such that, without having regard to circumstances peculiar to that person as to place of residence or as to place of, or nature of, employment—

 

            (ii) his ability to walk out of doors is so limited, as regards the distance over which or the speed at which or the length of time for which or the manner in which he can make progress on foot without severe discomfort, that he is virtually unable to walk …’

 

26.       The reference to section 73(1)(a) is, of course to that paragraph in the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, which is in the following terms:

 

‘73.—(1) Subject to the provisions of this Act, a person shall be entitled to the mobility component of a disability living allowance for any period in which he is over the relevant age and throughout which—

 

(a) he is suffering from physical disablement such that he is either unable to walk or virtually unable to do so;’

 

27.       In paragraphs 20 to 25 of her decision in R(DLA) 4/03, the Social Security Commissioner set out the principles to be applied when an adjudicating authority was considering ‘virtual inability to walk’ and, more significantly, the relevance of the factor of ‘severe discomfort.’  It is worth replicating her remarks in full:

 

‘20. I deduce the following propositions from the case law with respect to regulation 12(1)(a)(ii):

 

(1)       R(M) 1/81 establishes that the adjudicator evaluates the restrictions (if any) on the claimant’s ability to walk out of doors without severe discomfort, whether the limitations are in respect of distance, speed, length of time or manner.

 

(2)       The relevant question is how far the claimant is limited in walking without suffering severe discomfort rather than before severe discomfort begins to set in. As Mr Commissioner Howell QC put it in CDLA/608/1994 at paragraph 15:

 

“An ability to walk 50 yards which can only be accomplished at the expense of the onset of pain amounting to severe discomfort for some time afterwards is not an ability to walk without severe discomfort, even if the pain does not begin in real earnest until the end of the 50 yards.”

 

(3)       It is an error of law to equate the onset of severe discomfort with the point at which the claimant stops walking.  Walking which gives rise to severe discomfort is discounted.  If a claimant walks 100 yards of which the last 10 are after the onset of severe discomfort, he must be judged as if the distance he walks at that stage is the farthest distance he can go without such a result, which could be 80 yards only.  When he stops is evidentially relevant to determining what are a claimant’s real limitations but, as Mr Commissioner Jacobs pointed out in CDLA/1389/1997, at paragraph 50(d):

 

“a claimant may cover only a particular distance because there is no need or reason to go any further.  For example, a claimant may only walk 20 yards because that is the distance to the shop where the claimant buys a newspaper before returning home to read it.”

 

(4)       Rests which a claimant is forced to take from time to time before continuing to walk must be included when calculating “the length of time” the claimant takes to walk a particular distance.  Otherwise, as Mr Commissioner Rowland points out in CDLA/805/1994, there would be little purpose in regulation 12(1)(a)(ii) including the three separate factors of speed, distance and time as the first is a function of the last two.

 

(5)       Mr Commissioner Rowland follows the same approach in CDLA/4388/1999 and, more recently, in CDLA/2050/2002.  In the latter cited case he makes the particular point that a tribunal must consider, where a claimant pauses, whether he can “walk further or whether that really was the absolute limit of the claimant’s capacity to walk” (paragraph 17).

 

(6)       In CDLA/6104/1999, Deputy Commissioner Newsome at paragraph 8 makes the valuable point:

 

“It may be the case that a claimant rests at a particular point because he is already in severe discomfort or because he will immediately be in such discomfort if he continues or because he is able to pace himself in such a way that if he rests at particular intervals even though the threat of severe discomfort is nowhere near imminent he will be able to progress some considerable distance before such a threat materialises.  It is in connection with the latter alternative that the pace or speed of walking becomes highly relevant in assessing whether the claimant can be taken to be virtually unable to walk.”

 

21.       None of the above cases nor those cited in argument directly answer the question before me. However, the statutory wording makes clear that the focus of whether a person is “virtually unable to walk” under regulation 12(1)(a)(ii) is on the limitations imposed by the claimant’s physical condition as a whole on an ability to make progress on foot out of doors.  This judgement of fact and degree is, as Mr Commissioner Howell QC said in CDLA/608/1994 (at paragraph 13) “intended to be a broad one”.

 

22.       All the aspects of a claimant’s walking are to be considered which result from physical disablement and an evaluation of its quality is then made.  This is on the basis that firstly, walking achieved only with severe discomfort is discounted and secondly, that a tribunal must pay appropriate regard to manner, speed, distance and time.  This exercise is carried out with the purpose of determining whether, taken overall, the claimant’s walking out of doors is properly described as “virtually unable to walk”.

 

23.       If a stop is the absolute limit of the claimant’s capacity to walk then no issue of taking the test only to the first onset of severe discomfort arises. But if a claimant recovers after a period of rest and continues walking without severe discomfort, then the statutory test does not preclude such continued walking from being assessed.  The tribunal must judge from the evidence such relevant factors as how far the claimant can initially walk without experiencing severe discomfort, how long any severe discomfort lasts before it subsides or, if he has paused to prevent such discomfort then the necessary duration of that pause, how frequently these halts recur if at all, and what is the total distance and time he can walk in this manner without severe discomfort.

 

24.       Time, speed, manner and distance of walking, achieved without severe discomfort, are therefore balanced in order to reach an overall judgement on whether the claimant is virtually unable to walk.  If a claimant has to rest an hour between each set of walking before severe discomfort subsides, he or she is more likely to be virtually unable to walk than a claimant who requires only 5 minutes.  Conversely, if a claimant with morning stiffness through rheumatoid arthritis walks the first minute out of doors in severe discomfort, stops for 4 minutes in order to flex his limbs and thereafter is enabled to walk 10 miles without severe discomfort at a reasonable pace and speed and without further halts, the statutory criteria do not prevent a conclusion which is in no way perverse, that such a claimant does not fall within regulation 12(1)(a)(ii).

 

25.       All of these are matters for the good sense of tribunals.  It is not, however, the law that only walking to a first halt required through severe discomfort is relevant.  This adds an unjustifiable gloss to the statutory criteria given the broad purpose of the test under regulation 12(1)(a)(ii), which is to establish the practical limitations on a person’s ability to walk due to the stated factors.’

 

28.       I accept and adopt this reasoning in a reported decision of the former Social Security Commissioners in Great Britain.  The emphasis in the paragraphs set out above is my own.  I have added that emphasis because I am not certain that the appeal tribunal in the instant case, in arriving at its conclusions on the relevance of ‘severe discomfort’, has applied the correct test.  I say ‘not certain’ because it may be the case that the appeal tribunal had the correct test in mind and the phrasing in the statement of reasons is more inelegant than substantively wrong.  There is, however, sufficient doubt in my mind to permit the decision to stand.’

 

16.   In her written observations, Ms Adams has set out the appeal tribunal’s reasoning on potential entitlement to the higher rate of the mobility component of DLA.  In my view, while the appeal tribunal has reminded itself that, as was observed by the Commissioner in paragraph 22 of R(DLA)4/03, ‘walking achieved only with severe discomfort is discounted’, it has not gone on to follow the additional detailed guidance provided in that decision.  The appeal tribunal has noted a ‘rule of thumb’ of 50 metres.  As was noted above, the Commissioner in R(DLA)4/03, ‘a tribunal must pay appropriate regard to manner, speed, distance and time.’  The emphasis here is my own.  The appeal tribunal has made no findings on these additional mandatory factors.  The Commissioner guided decision-making authorities to balance time, speed, manner and distance of walking, achieved without severe discomfort, ‘… in order to reach an overall judgement on whether the claimant is virtually unable to walk.’  I am of the view that the appeal tribunal in the instant case has not undertaken the necessary balancing exercise.

 

17.   Having found, for the reasons set out above, that the decision of the appeal tribunal is in error of law, I have not have to explore the other grounds of appeal advanced on behalf of the appellant.  I would indicate, however, that I would not have found the decision of the appeal tribunal to be in error of law on the basis of those grounds.

 

         Disposal

 

18.   The decision of the appeal tribunal dated 11 August 2016 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.

 

19.   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 7 August 2015, which decided that the appellant was not entitled to DLA from and including 28 July 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) the appeal is to be listed as an oral hearing;

 

                  (iv) the appellant is encouraged to seek representation and, in any event, to attend the oral hearing of the appeal;

 

                  (v) 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

 

                  (vi) 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

 

 

 

18 September 2017