SMcG-v-Department for Communities (DLA) [2017] NICom 75

Decision No:  C68/17-18(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 12 October 2016

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is a claimant’s application for leave to appeal from the decision of an appeal tribunal sitting at Omagh.

2.	For the reasons I give below, I grant leave to appeal.  I set aside the decision of the appeal tribunal and I direct that the appeal shall be determined by a newly constituted tribunal.

REASONS

	Background

3.	The applicant claimed disability living allowance (DLA) from the Department for Social Development (the Department) on the basis of needs arising from dyslexia, dysphagia and weight loss, neck and back pain, anxiety/paranoia and blackouts.  He was initially sent a claim form on 3 February 2016 with an indication that, if he returned it by 16 March 2016, his claim would be treated as made on that date.  In the event, he returned it on 18 March 2016.  The Department obtained a report from the applicant’s general practitioner (GP) on 4 May 2016.  On 5 May 2016 the Department decided on the basis of all the evidence that the applicant did not satisfy the conditions of entitlement to DLA from and including 18 March 2016.  The applicant appealed.

4.	The appeal was considered by a tribunal consisting of a legally qualified member (LQM), a medically qualified member and a disability qualified member.  After a hearing on 12 October 2016 the tribunal allowed the appeal and awarded the low rate of the care component of DLA from 18 March 2016 to 17 March 2018.  The applicant then requested a statement of reasons for the tribunal’s decision and this was issued on 20 December 2016.  The applicant applied to the LQM for leave to appeal from the decision of the appeal tribunal but leave to appeal was refused by a determination issued on 8 February 2017.  On 7 March 2017 the applicant applied to a Social Security Commissioner for leave to appeal.

	(The Department was renamed the Department for Communities from 8 May 2016).

	Grounds

5.	The applicant, represented by Harte Coyle Collins, Solicitors, submits that the tribunal has erred in law on the basis that:

	(i)	he does not accept that he was not considered eligible for the mobility component as he has extreme difficulty walking and sometimes cannot walk;

	(ii)	insufficient weight was given to the applicant’s evidence;

	(iii)	his mental health is such that he will not care for himself sufficiently unaided, particularly since the recent death of his mother.

6.	The Department was invited to make observations on the applicant’s grounds.  Mr Culbert of Decision Making Services (DMS) responded on behalf of the Department.  Mr Culbert accepted that the tribunal may have erred in law and indicated that the Department supported the application for leave to appeal.

	The tribunal’s decision

7.	The LQM has prepared a statement of reasons for the tribunal’s decision.  From this I can see that the tribunal had documentary material before it consisting of the Department’s submission, which contained the applicant’s claim form and a factual report from the applicant’s GP.  It further had sight of the applicant’s medical records.  The applicant attended the hearing of the appeal and gave oral evidence.

8.	The tribunal accepted on the applicant’s evidence that his mobility was significantly reduced due to pain.  However, is did not consider that his ability to walk out of doors was so limited as regards distance, speed, length of time and manner of walking that he was virtually unable to walk.  On the basis of evidence that the applicant was his mother’s main carer, drove her to appointments and took her shopping, the tribunal decided that he did not require guidance or supervision to walk out of doors on unfamiliar routes.  It therefore did not award mobility component.

9.	The tribunal found that the applicant suffered episodes of paranoia and extreme agitation, but noted that he lived alone and was the main carer for his mother.  It was not satisfied that he required continual supervision from another person to avoid danger to himself or others.  The tribunal found that the applicant did not identify any personal care needs.  However, it was satisfied that due to mental health difficulties and lack of motivation he could not prepare a cooked main meal if he had the ingredients.  It awarded low rate care component for two years.

	Relevant legislation

10.	The legislative basis of the care component is found at section 72 of the Social Security Contributions and Benefits Act (NI) 1992 (the 1992 Act).  This provides:

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

		(a) he is so severely disabled physically or mentally that—

			(i) he requires in connection with his bodily functions attention from another person for a significant portion of the day (whether during a single period or a number of periods); or

			(ii) he cannot prepare a cooked main meal for himself if he has the ingredients;

		(b) he is so severely disabled physically or mentally that, by day, he requires from another person—

			(i) frequent attention throughout the day in connection with his bodily functions; or

			(ii) continual supervision throughout the day in order to avoid substantial danger to himself or others; or

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

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

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

	(2) Subject to the following provisions of this section, a person shall not be entitled to the care component of a disability living allowance unless—

		(a) throughout—

			(i) period of 3 months immediately preceding the date on which the award of that component would begin; or

			(ii) the such other period of 3 months as may be prescribed, he has satisfied or is likely to satisfy one or other of the conditions mentioned in subsection (1)(a) to (c) above; and

		(b) he is likely to continue to satisfy one or other of those conditions throughout—

			(i) the period of 6 months beginning with that date; or

			(ii) (if his death is expected within the period of 6 months beginning with that date) the period so beginning and ending with his death.

11.	The legislative basis of the mobility component is section 73 of the same Act.  This provides:

	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;

		(ab) he falls within subsection (2) below;

		(b) he does not fall within that subsection but does fall within subsection (2) below;

		(c) he falls within subsection (3) below; or

		(d) he is able to walk but is so severely disabled physically or mentally that, disregarding any ability he may have to use routes which are familiar to him on his own, he cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time.

	…

12.	In this case, a further issue relating to the date on which the applicant’s claim was made or should be treated as made arises.  The relevant legislation appears at regulation 6(8) and (9) of the Social Security (Claims and Payments) Regulations (NI) 1987.  These paragraphs read:

	(8) Subject to paragraphs (8A) and (8B), where—

		(a) a request is received in an appropriate office for a claim form for attendance allowance or disability living allowance; and

		(b) in response to that request a claim form for attendance allowance or disability living allowance is issued from an appropriate office; and

		(c) within the time specified the claim form properly completed is received in an appropriate office, the date on which the claim is treated as made shall be the date on which the request was received in the appropriate office.

	…

	(9) In paragraphs (8) and (8A)—

		“a claim form” means a form approved by the Department in accordance with regulation 4(1); “properly completed” has the meaning assigned by regulation 4(8);

		“the time specified” means 6 weeks from the date on which the request was received or such longer period as the Department may consider reasonable.

	Hearing

13.	I held an oral hearing of the application.  Ms Martin of Harte, Coyle, Collins, Solicitors, appeared for the applicant.  Mr Culbert of DMS appeared for the Department.  At the outset, Ms Martin consented to me, if I was minded to grant leave to appeal, treating the application as if it were an appeal.

14.	Ms Martin had taken carriage of the case from a colleague at short notice and understandably confined her submissions to the matters raised in written submissions by her colleague.  In essence she submitted that the tribunal had made the wrong decision in the appeal and submitted further evidence in the form of letters from the applicant’s general practitioner dated 15 May 2017 and 21 November 2017.

15.	Mr Culbert submitted that the representations made by Ms Martin amounted to nothing more than an attempt to reargue the case which had been presented to the tribunal.  Relying on the decision of Chief Commissioner Mullan in MJW v Department for Social Development [2011] NI Com 174, he submitted that an application for leave to appeal on point of law should not be permitted to become a re-hearing or further assessment of evidence, when that assessment had already been fully and thoroughly undertaken by the tribunal.  He submitted that post-decision evidence was not properly admissible, due to the effect of Article 13(8)(b) of the Social Security (NI) Order 1998.

16.	Nevertheless, Mr Culbert raised a separate matter in the applicant’s interests.  As indicated above, the applicant had been sent a claim form on 3 February 2016, with advice that it would be treated as a claim from that date if it was returned by 16 March 2016.  The applicant did not return it until 18 March 2016.  The Departmental decision maker had considered the issue of whether the late claim should be admitted from the earlier date of 3 February 2016, but decided not to admit it.

17.	When the Social Security (NI) Order 1998 was first made, there was no right of appeal against a decision under regulation 6 of the Claims and Payments Regulations.  However, the tribunal’s jurisdiction was extended by the Social Security, Child Support and Tax Credit (Decisions and Appeals) (Amendment) Regulations (NI) 2004 to include decisions under regulation 6(8) and (9).  Mr Culbert pointed to a submission made by the applicant, not in his appeal letter but in a subsequent document, that the claim should have been treated as made on the earlier date.

18.	Mr Culbert submits that this submission placed the issue of the date on which the claim fell to be treated as made squarely before the tribunal.  The Departmental submission did not raise the issue to the tribunal.  However, he submitted that the failure of the tribunal to address the issue meant that it had erred in law.

	Assessment

19.	An appeal lies to a Commissioner from any decision of an appeal tribunal on the ground that the decision of the tribunal was erroneous in point of law.  However, the party who wishes to bring an appeal must first obtain leave to appeal.

20.	Leave to appeal is a filter mechanism.  It ensures that only applicants who establish an arguable case that the appeal tribunal has erred in law can appeal to the Commissioner.

21.	An error of law might be that the appeal tribunal has misinterpreted the law and wrongly applied the law to the facts of the individual case, or that the appeal tribunal has acted in a way which is procedurally unfair, or that the appeal tribunal has made a decision on all the evidence which no reasonable appeal tribunal could reach.

22.	The applicant, represented by Harte, Coyle, Collins submitted that the tribunal had not given sufficient weight to the applicant’s account that he cannot get up after a fall and to reports that his mental health has deteriorated since his mother’s death in late 2016.  I accept the submission made by Mr Culbert that the first of the applicant’s grounds essentially reiterated his evidence to the tribunal.  The further matters raised by the applicant include the possible deterioration of his health following the death of his mother.  However, as Mr Culbert pointed out, a tribunal is precluded, by Article 13(8)(b) of the Social Security (NI) Order 1998, from consideration of circumstances not obtaining when the decision under appeal was made.  He submits that this possible deterioration could be raised with the Department by way of a supersession request, but that it does not assist the applicant in establishing that the tribunal has erred in law.

23.	I accept the submissions of Mr Culbert.  I do not accept the applicant’s grounds as giving rise to an arguable case of error of law.

24.	Nevertheless, Mr Culbert has submitted that a potential error of law arose from the tribunal’s failure to deal with the issue of the date from which the claim should have been treated as made.  I grant leave to appeal on that ground.

25.	As indicated above, the applicant had requested his claim form from the Department on 3 February 2016.  He was advised that the Department would treat the claim as made on that date if the claim form was returned by 16 March 2016.  However, the form was returned on 18 March 2016.  In the circumstances the Department asked the applicant why the form was not returned sooner.  He responded on 7 April 2016 saying that he had to wait for his doctor to complete a part of the form.  I observe that the doctor had completed this part of the form on 10 March 2016.  I observe that the applicant has literacy difficulties and mental health disabilities.  I further observe that the form was submitted only 2 days late, one of those days being a public holiday in Northern Ireland.

26.	The question arising from Mr Culbert’s submission is whether the tribunal has erred in law by not addressing the issue of whether the claim should be accepted as if made on 3 February 2016, on the basis that it was reasonable to extend the time for returning the form to 18 March 2016.

27.	Chief Commissioner Mullan had previously considered a similar situation in CMcC v Department for Social Development [2011] NI Com 215.  He set out relevant principles at paragraphs 34-39 of that decision.  In essence he pointed out that the tribunal stands in the shoes of the Department when making its decision.  In that case, the issue of the time limit for returning a claim form had arisen and Chief Commissioner Mullan confirmed that the tribunal not only had jurisdiction to consider such an appeal, but an obligation to do so.  In the particular case, the Departmental submission had dealt with the reasonableness of admitting the late submitted form in terms of the principles of “good cause”.  Chief Commissioner Mullan held that these principles were not directly relevant, and the tribunal had fallen into error by reviewing the reasonableness of the Department’s decision rather than make its own decision on the merits.  However, the key point, as I understand it, is that the tribunal must address the issue where it arises on the appeal.

28.	The tribunal in the present case did not make a decision under regulation 6(8) of the Claims and Payments Regulations as to whether it was reasonable to extend the specified time for the return of the applicant’s claim form to 18 March 2016.  The Department did not raise the issue in its submission to the tribunal, and this omission doubtless misled the tribunal.  Nevertheless, as pointed out by Mr Culbert, the issue had been raised by the applicant – albeit indirectly.

29.	A tribunal considering a DLA claim in every case is required to make a determination as to the date from which an award can be made.  This is necessary in order to apply section 72(2) and 73(9) of the 1992 Act, relating to the three month qualifying period and the six month prospective condition, correctly.  In order to decide the date from which an award could be made a tribunal will normally look at the date of claim.  However, in circumstances where a claim form has been returned more than six weeks after issue, discretion arises as to whether it is reasonable to extend the specified time.  In a case such as the present one, where this discretion has been exercised by the Department against the claimant at first instance, it follows that the exercise of discretion must be reconsidered on appeal by the tribunal.

30.	I have not heard argument on the case where the regulation 6(8) issue has not been raised by the claimant in his appeal.  I understand that the issue was expressly raised before the tribunal in the case of CMcC v DSD, decided by Chief Commissioner Mullan.  As indicated, in the present case Mr Culbert accepts that it was raised by the applicant, although I would say that this was done somewhat obliquely.  In a case where the issue has not been raised by any party, it may well be that a tribunal should nevertheless consider the issue.  However, for present purposes, I do not need to say anything which is addressed to that broader circumstance and prefer to address it, should the need arise, on another occasion.

31.	I agree with Mr Culbert’s submission that the particular tribunal has erred in law by failing to address the application of regulation 6(8) of the Claims and Payments Regulations.

	Disposal

32.	Mr Culbert notes that the applicant has a current award of low rate care component and, observing that this might be at risk if the matter is remitted to a new tribunal, invites me to adopt the findings of the tribunal on entitlement but to substitute a decision as far as the date of claim is concerned, addressing regulation 6(8).

33.	Having consulted with the applicant, and advised him as to the risk of loss of the existing award, Ms Martin asks me to remit the entire appeal to a newly constituted tribunal for determination, as the applicant wishes primarily to achieve a different outcome on the question of mobility.  I accept Ms Martin’s submission.  I set aside the decision of the appeal tribunal.

34.	Having set aside the decision of the appeal tribunal, this has the consequence that the applicant is no longer entitled to the low rate care component from 18 March 2016 to 17 March 2018.

35.	I direct that the appeal shall be determined by a newly constituted tribunal.

36.	The new tribunal is directed to consider:

	(i)	What is the date of claim in the present case and in particular whether the time specified in the claim form issued on 3 February 2016 should be extended by such longer period as the tribunal may consider reasonable in accordance with regulation 6(8) of the Claims and Payments Regulations?

	(ii)	On the basis of the circumstances obtaining at the date the decision under appeal was made, does the applicant have entitlement to DLA at any rate from that date of claim, and if so for what duration?

(signed):  O Stockman

Commissioner

18 December 2017