Northern Ireland - Social Security and Child Support Commissioners' Decisions

AM-v-Department for Communities (DLA) [2018] NICom 41

 

Decision No:  C3/18-19(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 5 October 2016

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.     Leave to appeal having been granted by me on 12 June 2018, I now set aside the decision of the appeal tribunal and made on 5 October 2016 under reference BE/1322/16/37/D.

 

2.     I refer the matter to a completely differently constituted appeal tribunal for a fresh hearing and decision in accordance with the directions given below.

 

         REASONS

 

3.     The appeal below concerned possible entitlement to a Disability Living Allowance (DLA).  I granted leave to appeal on 12 June 2018, saying:

 

                  1. The grounds of appeal filed by the applicant’s representative are arguable: there seem to me to be a number of matters of potential concern that arise out of the statement of reasons.

 

                  2. In addition to the points made, it seems to me that there is arguably insufficient explanation for the apparent disregard of the views of the GP as to the appellant’s level of pain.  In particular there is no explanation as to why the judgment of a professional with knowledge of the applicant should be considered self-serving merely because it was written in a letter supporting an appeal: In BH-v- Secretary of State for Work and Pensions [2013] UKUT 241 (AAC), however Upper Tribunal Judge Wright says at [14] in relation to the observation by a FTT that the GPs report simply reiterated what he had been told:

           A claimant’s GP is just as professional as any other doctor or health care professional who gives evidence to a tribunal, and, save where a proper explanation is given as to why he or she would do this, should not be assumed to simply be a vehicle for repeating what the claimant has told the GP as opposed to offering the GP’s professional opinion.

 

                  3. As to the GP factual report completed by Dr Turner, part 6 of that report, where details (if known) of the effect of the disabling conditions on day-to-day life or requested, the report states “uses stick or walking, pain++ transferring.”  The context of the question suggests that the tribunal was right to consider that transferring meant moving from a chair; however, the comment as to pain on transferring seems to have been ignored.

 

                  4. Was the tribunal correct in ignoring the possibility that there was a reasonable requirement for attention in relation to difficulties getting in and out of the bath (that difficulty not being disputed by any factual finding in the statement of reasons), or indeed in relation to chair transfers, which had been flagged up in the GP factual report as set out above?  The reason for the tribunal not considering those attention needs was said to be that OT aids were available. However, it does not appear to have been considered whether it was reasonable for aids (unspecified) to be used, particularly prior to the OT assessment, the GP referral for which seems to have been made after the decision under appeal.

 

                  5. There is a potential inconsistency, or at least a lack of explanation, as to the different view the tribunal took in relation to the supersession decision prior to the date of the renewal claim which was said to be “too quick off the mark” and the conclusions that, only some three months later, renewal of the existing award was not warranted.

 

                  6. The “questionnaires” seem to have been dismissed by the tribunal at least in part because they were unsigned and undated.  If any criticism was due to those matters which could have been resolved on further enquiry, it may have been misplaced.

 

4.     The Department now supports the appeal in the helpful submission of Ms Coulter, who accepts in relation to the third issue that I said was arguable, saying that the tribunal had not provided adequate findings as to why the OT aids it mentions would be reasonable and practical for [the appellant] to use.  That failure, in Ms Coulter’s view, renders the decision erroneous in law.  I agree with her.

 

5.     Now that the Department accepts that the decision of the tribunal was made in error of law the appellant’s representative Mr Black, a solicitor from the Law Centre NI, understandably, does not feel the need to make full observations on the Department’s submission; he simply confirms that he stands by the points he made in the grounds of appeal, and adopts as further points the matters that I said were arguable.  He will, of course, be able to put those matters before the fresh tribunal.

 

6.     Technically I remit the case upon the basis that is agreed by the Department and set out above.

 

7.     In the circumstances I do not need to rule on the other issues raised at the permission stage, either in the grounds of appeal or by me.  They will be, in technical language, subsumed by the appeal, which is to say that the fresh tribunal will start again and make findings on all relevant matters.  The fresh tribunal, however, may wish to take into account the matters that were of concern to me when I granted permission to appeal, if only to guard against falling into similar arguable errors.  In particular I would emphasise that a tribunal cannot avoid giving reasons for conclusions that it reached simply by saying that it had given careful consideration all the evidence; the explanation should show the reasoned result of that careful consideration.

 

8.     The fact that the appeal has succeeded at this stage is not to be taken as any indication as to what the tribunal might decide in due course.

 

         CASE MANAGEMENT DIRECTIONS

 

                  1. These directions may be supplemented or changed by a Legally Qualified Panel Member giving listing and case management directions.  In view of the age of this matter the case should be referred for listing directions as soon as possible.

 

                  2.The case will be an oral hearing listed before a differently constituted panel.   

 

                  3. The new panel will make its own findings and decision on all relevant matters. 

 

         (signed) P Gray

 

         Deputy Commissioner (NI)

 

 

 

         22 August 2018