BC-v-Department for Communities (DLA) [2018] NICom 3

Decision No: C49/17-18(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 27 July 2016

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 27 July 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 his entitlement to Disability Living Allowance (DLA), for a particular period, remains to be determined by another appeal tribunal.  In accordance with the guidance set out below, the newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal.

	Background

5.	On 21 October 1998 a decision maker of the Department decided that the appellant was entitled to the lowest rate of the care component of DLA from and including 8 September 1998.

6.	On 8 December 2015 another decision maker of the Department decided that there were no grounds to supersede the decision dated 21 October 1998.  As a result the appellant remained entitled to the lowest rate of the care component of DLA.  An appeal against the decision dated 8 December 2015 was received in the Department on 6 January 2016.

7.	Following an earlier adjournment, the substantive oral hearing of the appeal took place on 27 July 2016.  The appellant was present and was represented by Mr Lafferty of the WAVE Trauma Centre.  There was no Departmental Presenting Officer present.

8.	The appeal tribunal disallowed the appeal and decided that the appellant was not entitled to the mobility component of DLA from and including 8 September 1998 and the care component of DLA from and including 8 December 2015.

9.	On 23 November 2016 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS).  On 2 December 2016 the application for leave to appeal was refused by the Legally Qualified Panel Member (LQPM).

	Proceedings before the Social Security Commissioner

10.	On 16 December 2016 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 5 January 2017 observations on the application for leave to appeal were requested from Decision Making Services (DMS).  In written observations dated 2 February 2017, Mr Donnelly, for DMS, supported the application for leave to appeal on one ground advanced on behalf of the appellant and on a further identified ground.  Written observations were shared with the appellant and Mr Lafferty on 7 February 2017.

11.	On 29 June 2017 I granted leave to appeal.  In granting leave to appeal, I gave as a reason that an arguable issue arose as to whether the appeal tribunal considered the supersession issue.  On the same date I directed that an oral hearing of the appeal would not be required.

12.	On 19 July 2017 e-mail correspondence was received from Mr Lafferty in which he indicated that the appellant had made a successful claim to Personal Independence Payment (PIP) and had been awarded an entitlement to the enhanced rate of the daily living component from 4 October 2016 to 18 November 2020.

	Errors of law

13.	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?

14.	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 error of law in the instant case

15.	In his written observations on the application for leave to appeal Mr Donnelly made the following submissions:

‘In this case the decision that was subject to appeal was a decision refusing to supersede the decision of 21 October 1998 awarding the lowest rate care component.  The first question for the tribunal was therefore to establish whether or not there were grounds to supersede and if so identify what these grounds were.  The grounds upon which a decision may be superseded are contained within regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 and include amongst them ‘a relevant change of circumstances’.  In this case the tribunal in its reasons decided that Mr C… was not entitled to any component of DLA and that there were grounds to supersede the decision of 21 October 1998. The tribunal should have first of all established that grounds did exist to supersede and identify what these grounds are, before then going on to consider the entitlement conditions (see unreported Commissioners decision C12/08-09(DLA)).  In failing to identify what the grounds for supersession were the tribunal has, I submit, the tribunal has erred in law.’

	I agree with this submission.

16.	A Tribunal of Commissioners in Great Britain, in R(IB) 2/04, undertook an extensive analysis of the legislative provisions relating to decision-making and appeals.  In Great Britain these provisions are the Social Security Act 1998 and the Social Security and Child Support (Decisions and Appeals) Regulations 1999, both as amended.  In Northern Ireland these provisions are the Social Security (Northern Ireland) Order 1998 and the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, both as amended.  To all intents and purposes, the legislative provisions with respect to decision making and appeals in Great Britain and Northern Ireland are identical.

17.	At paragraph 73, of R(IB)2/04, in discussing the appeal tribunal’s powers with respect to supersession decisions:

‘… it follows from our reasoning … that the appeal tribunal has jurisdiction, on appeal, to decide whether the outcome arrived at by that decision (i.e. either to change or not to change the original decision) was correct.  This will or may involve deciding (a) whether one of the statutory supersession grounds (whether the one relied upon by the decision-maker or not) applied and (b) if so whether the original decision ought to be changed.’

18.	The grounds upon which a decision can be superseded are to be found in regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended (the ‘1999 Regulations’).

19.	As was noted by the Tribunal of Commissioners in R(IB) 2/04, at paragraph 10, in considering the Great Britain equivalent regulation to Regulation 6, there can be no supersession under unless one of the grounds for supersession specified in Regulation 6 was actually found to exist, and the ground which was found to exist must have formed the basis of the supersession in the sense that the original decision could only be altered in a way which followed from that ground.

20.	In C12/08-09(DLA), at paragraphs 48 to 53, I said the following about the appeal tribunal’s duties with respect to the proper identification of a supersession decision, in appeals relating to DLA:

	‘48.	The appeal tribunal was under a specific duty to determine whether the decision under appeal was correct.  As that decision was a supersession decision the duty was to determine whether there were grounds to supersede under regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.

	49.	If the appeal tribunal determined that the decision-maker did not have grounds to supersede the earlier decision then that decision would continue to have effect.

	50.	If the appeal tribunal determined that the decision-maker did have grounds to supersede the earlier decision then the appeal tribunal could have gone on to consider entitlement to benefit, in light of the substantive rules for entitlement to DLA.

	51.	Finally, the appeal tribunal was under a duty to determine the effective date from which any supersession decision should take effect.

	52.	The appeal tribunal’s duty is not only to consider the supersession issue, including grounds, entitlement and effective date, but to make clear that it has done so.  It is not sufficient for it to be, as DMS suggests, implicit from the appeal tribunal’s documentation that the supersession issue was addressed.  That consideration must be explicit from the decision notice, the statement of reasons or a combination of both.  In the present case, I am of the view that it is not even implicit that consideration was given to the supersession issue.

	53.	The consideration of the issues raised by the appeal is expressly a part of the appeal tribunal’s inquisitorial role (on which issue see the further comments of the Tribunal of Commissioners in Great Britain in R(IB) 2/04 at paragraph 32).  That would mean that the supersession issue ought to have been addressed, in any event.’

21.	In the instant case, and as was observed by Mr Donnelly, the appeal tribunal has made general statements in the decision notice for its decision on entitlement to the care component of DLA and its subsequent statement of reasons in respect of the care component, that the decision maker, on 8 December 2015, had grounds to supersede the earlier decision of the Department dated 21October 1998.  Thereafter, there is no identification of the regulation 6 ground and the evidence to support that ground.

22.	It is important to note that the overall decision of the appeal tribunal was to remove altogether the entitlement to the lowest rate of the care component of DLA.  That is a significant decision for the appellant.  In my view, that appellant was entitled to know the legal and evidential basis upon which the appeal tribunal had concluded that something had changed, justifying a conclusion that there were grounds to supersede the earlier decision of the appeal tribunal.  The appeal tribunal has undertaken a thorough analysis of the evidence available to it in the context of the conditions of entitlement to DLA but has failed to make explicit its determination, findings and conclusions on the supersession issue.

23.	Further, the appeal tribunal, having found that there had been a relevant change of circumstances, was under a duty to determine the effective date from which any supersession decision should take effect.  Accordingly, the appeal tribunal was required to explain why the identified change and, by implication, the supersession took effect from an identified date.  In the present case, the appeal tribunal failed to explain why it had adopted the dates relevant to its decision.  Accordingly, even if the appeal tribunal was not in error by failing to address the issue of whether the decision-maker had grounds to supersede, it was also in error in failing to identify the effective date from which any supersession should take effect.

24.	Finally, there are incongruences between the two separate decision notices prepared by the appeal tribunal in connection with its decisions in respect to entitlement to the care and mobility components of DLA.  In its decision notice in respect of the care component it has noted that that the decision maker, on 8 December 2015, had grounds to supersede the earlier decision of the Department dated 21 October 1998.  In its decision notice in respect of the mobility component it has noted that the decision maker, on 8 December 2015, had no grounds to supersede the 21 October 1998 decision.

25.	The conflicting approach of the appeal tribunal to the supersession issue, as set out in the decision notices for the care and mobility components, is problematic for the following reason.

26.	In considering the issue of whether the Department had grounds to supersede, an appeal tribunal should note the remarks of Mrs Commissioner Brown, at paragraph 7, of the decision in C14/04-05(DLA) that DLA is a composite benefit.  This means that the appeal tribunal should be considering whether the Department had grounds to supersede one of its earlier decisions not individual components within that decision.  Either there were grounds to supersede the decision or there were not.  Where I think the appeal tribunal has gone wrong is that it has confused the separate questions of supersession and entitlement.  There can be no consideration of the entitlement question unless there has been a consideration of the supersession question.  In turn the entitlement question only becomes relevant where it has been established that there were grounds to supersede.

27.	It with a great deal of reluctance that I am setting aside the decision of the appeal tribunal given its judicious consideration of the evidential issues arising in the appeal and its carefully prepared statement of reasons.  That statement of reasons omits, however, an analysis of the most fundamental aspect of the rationale for the appeal tribunal’s overall decision.

	Disposal

28.	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 8 December 2015 another decision maker of the Department decided that there were no grounds to supersede an earlier decision dated 21 October 1998 which itself decided that the appellant was entitled to the lowest rate of the care component of DLA from and including 8 September 1998;

	(ii)	as was noted above, Mr Lafferty has informed me that the appellant had made a successful claim to PIP and had been awarded an entitlement to the enhanced rate of the daily living component from 4 October 2016 to 18 November 2020.  The Department is directed to prepare a submission on the limits of the appeal tribunal’s jurisdiction, and, more particularly, the end date of any period of potential entitlement to DLA, in line with the provisions of the Personal Independence Payment (Transitional Provisions) Regulations (Northern Ireland) 2016;

	(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

20 February 2018