SR-v-Department for Communities (DLA) [2017] NICom 65
Decision No: C56/17-18(DLA)
SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992
DISABILITY LIVING ALLOWANCE
Application by the above-named claimant for
leave to appeal to a Social Security Commissioner
on a question of law from a tribunal's decision
dated 24 October 2016
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. The decision of the appeal tribunal dated 24 October 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 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 26 January 2016 a decision maker of the Department decided that the appellant was not entitled to DLA from and including 20 November 2015. An appeal against the decision dated 26 January 2016 was received in the Department on 23 March 2016. The appeal had been received outside of the prescribed time limits for making an appeal but, on 7 April 2016 the Legally Qualified Panel Member (LQPM) determined that the time limits could be extended.
6. The appeal tribunal hearing took place on 24 October 2016. The appellant was present and was represented. There was no Departmental Presenting Officer present. The appeal tribunal disallowed the appeal and confirmed the decision dated 26 January 2016.
7. On 17 January 2017 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS). On 1 February 2017 the application for leave to appeal was refused by the LQPM.
Proceedings before the Social Security Commissioner
8. On 28 February 2017 a further application for leave to appeal was received in the Office of the Social Security Commissioners. On 13 March 2017 observations on the application for leave to appeal were requested from Decision Making Services (DMS). In written observations dated 13 April 2017, Ms Adams, for DMS, supported the application on two of the grounds advanced on behalf of the appellant. Written observations were shared with the appellant and her representative on 13 April 2017. On 15 May 2017 correspondence was received from the Law Centre (Northern Ireland) who were not on record as a representative for the appellant.
9. On 4 August 2017 I granted leave to appeal. In granting leave to appeal I gave, as a reason, that it was arguable that the appeal tribunal erred in refusing the application made by the appellant’s representative to adjourn the oral hearing of the appeal. 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 the application for leave to appeal, the appellant’s representative advanced four grounds of appeal. Grounds one and four were as follows:
‘It was against the rules of natural justice to refuse the adjournment request. The provision of the Department’s submission did not comply with the President’s Code of Practice. In the time available before hearing I had to review the GP records so could not take my client through the appeal papers as noted. We do not feel that any party was disadvantaged by granting adjournment. It appears the tribunal had determined that the GP records were the primary source of evidence and referred to the GP records as part of the basis of disallowance. They reviewed them before making the adjournment decision and therefore would have known that they did not contain evidence sufficient to support the appeal. A request had been made for an opportunity to obtain outstanding evidence which had been requested. The tribunal would have known at this stage that the GP records were not supportive and therefore may have prejudged the case when refusing the opportunity to obtain further evidence. In fact the tribunal refers, unfairly, to the failure to provide further medical evidence in the reasons for the decision.
…
The tribunal’s reference to the ESA85A being an informal assessment and to this document being completed 1 year ago was misleading. The ESA85A review was a formal assessment of entitlement even if an actual medical examination was not carried out. The ESA85A will consider evidence before a determination is made. The claim for DLA was from 20 November 2015 and the ESA85A was also from a similar date.’
13. In her constructive written observations on the application for leave to appeal, Ms Adams made the following submissions in response:
‘On 17 October 2016, Mr McCloskey asked for a postponement of (the appellant’s) hearing as he stated she had not received a copy of the Department’s submission for her case however the request was refused. Mr McCloskey then requested an adjournment in order to obtain copies of reports from Employment and Support Allowance Branch (which he had requested also on 17 October 2016), however the tribunal preferred to continue with the hearing. The tribunal noted that it had reconsidered the postponement request and also considering adjourning proceedings however decided to proceed with the hearing. It has noted in the record of proceedings:
“The panel explained to him that it had received the Appellant’s General Practitioner records and it would peruse the same and after consideration it indicated that it preferred that the Tribunal proceeded on the day of hearing as it had access to the General Practitioner records. He also indicated that he had not had the opportunity to go through the submission with the Appellant. The Tribunal indicated that it would afford him an opportunity to do so on the day so as to avoid an adjournment in the circumstances. The Tribunal did not understand why the representative had not taken instructions from the Appellant prior to the hearing given that he had received the submission prior to the hearing, but in any event it afforded the representative an opportunity to go through the submission with the Appellant prior to the hearing commencing and in addition they had access to the General Practitioner records before proceeding”.
In the reasons for decision, the tribunal elaborated on this matter and noted:
“In relation to the representative’s request for a postponement in the case prior to the hearing and on the morning of the hearing, the tribunal decided to proceed with the hearing given that the Tribunal and Appellant and representative had access to the General Practitioner records on the morning. In addition the submission had been sent to the representative prior to the hearing and the Tribunal believed that he received the submission in time. It gave the representative and Appellant sufficient time on the morning of the hearing to peruse the submission, which was not a detailed submission in the circumstances and contained the Appellant’s claim form and the General Practitioner’s report from the Appellant’s General Practitioner. The Tribunal believed that the Appellant had been afforded a fair hearing in the circumstances of the case and it primarily decided to deal with the case on the morning as it believed that the Appellant was aware of the case under appeal and the General Practitioner records were available to both the panel and the Appellant and the representative. Furthermore, it did not believe that access to any of the prior Employment and Support Allowance finding would have assisted in the overall assessment of the Appellant’s entitlement to Disability Living Allowance from the 20 November 2015 given that the medical examination by the Appellant for Employment and Support Allowance purposes happened almost 2 years previously and a scrutiny report had been done one year previously. As the General Practitioner records were available, the Tribunal believed that this was a primary source of medical evidence in the case and accordingly the Tribunal believed that as the General Practitioner records were available the medical reports as regards the Employment and Support Allowance were not as important”.
It is my contention that the tribunal’s reasons for not granting an adjournment were flawed. Without knowing what evidence there was in relation to ESA the tribunal could not have not have known if this evidence was relevant to (the appellant’s) claim to DLA and which may have assisted her appeal. I accept that DLA and ESA are different benefits with different rules of entitlement; however evidence relating to ESA may be supportive of a claim to DLA and vice versa. Furthermore whilst the tribunal refer to the time gap as a reason for not considering same and this has obviously influenced its decision not adjourn proceedings, I would submit that the ESA 85A report would have been completed around a month or two before (the appellant’s) claim for DLA was decided and as such could have been relevant to her circumstances at the date of decision that was subject to the appeal.
In view of the above it is my submission that (the appellant) was disadvantaged by not being afforded the opportunity to obtain further evidence in support of her appeal and as such the tribunal has erred in law by not granting an adjournment.
Mr McCloskey states that the appellant had paid £50 for her GP medical records and therefore they would have been available at a later date in the event of an adjournment. Furthermore, he states the tribunal had already reviewed the GP records and could have noted so in its record before adjourning. As noted above it is the Department’s submission that the tribunal has erred in law as contended.
Mr McCloskey has suggested that the tribunal’s decision not to grant an adjournment may have been prejudiced because it had reviewed the GP notes and was aware that these did contain sufficient information to support the appeal. It is my understanding that when GP notes are available it is the normal practice for a tribunal (as it is for appellants) to peruse the notes prior to the commencement of proceedings. Whilst the tribunal has obviously perused the notes there is nothing to suggest that the information contained within the notes prejudiced their decision to refuse to adjourn proceedings. Having said, for the reasons advanced above it is still my submission that the tribunal has erred in law in not affording Mr McCloskey the chance to obtain further evidence to support (the appellant’s) appeal.
…
I would agree with Mr McCloskey’s submission on this point in that the Tribunal’s views appear to be dismissive of the (ESA85A) report without giving any thought as to what the contents of the report may be. The form is completed by a Healthcare Professional (HCP) who gives an opinion, based on an assessment of medical and other evidence, as to whether or not a person has limited capability to work. In determining this question the HCP has to give justification for his decision (specimen copy of form is attached). As noted in issue 1 above I accept that DLA and ESA have different entitlement conditions, however as submitted there may be evidence in relation to one benefit that may support an award for the other benefit. Therefore this report may have assisted (the appellant) in her appeal. In view of this I would agree that the tribunal’s reference to form ESA85 was misleading and as such the tribunal has erred in law.’
14. I am in agreement with both Mr McCloskey and Ms Adams and, for the reasons which have been outlined by them, I am also in agreement that the decision of the appeal tribunal is in error of law. A decision on an oral application for an adjournment of an appeal tribunal hearing is always one for the appeal tribunal to make. Adjournments for further evidence require very careful consideration to determine whether they are really needed and, if so, whether they will achieve the intended outcome of providing the additional evidence needed. I am of the view, however, that in this case the factors which supported the granting of the application for an adjournment clearly outweighed those in support of a refusal of that application. There was no prejudice to the Department, as the other party to the proceedings, in granting the adjournment application.
Disposal
15. The decision of the appeal tribunal dated 24 October 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.
16. 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 26 January 2016, which decided that the applicant was not entitled to DLA from and including 20 November 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
2 November 2017