[2006] NISSCSC C21_06_07(DLA) (22 November 2006) 

Decision No: C21/06-07(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 21 February 2006

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by me, by the claimant against a decision dated 21 February 2006 of an appeal tribunal (the tribunal) sitting at Lurgan.  I granted leave although the Department opposed the application.  However the Department consented to the Commissioner treating its observations as observations under Regulation 18(1) of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999.  The Department’s observations were sent to the appellant giving her the opportunity to comment thereon if she so wished and she has not done so.  The appellant requested an oral hearing of her application, albeit without reasons why so, but in the circumstances I am satisfied that her application and the appeal can properly be determined without a hearing.

2.	The decision of the tribunal is wrong in law.  I therefore set the tribunal’s decision aside and return the appeal for new hearing.  

Errors of Law

Inadequate Reasons

3.	A tribunal is not obliged to prefer any one particular item of evidence to another but it has a duty to assess all of the evidence, reach a reasoned view on which it prefers and why and briefly to explain to the parties the process by which it has analysed the evidence in the way it has when applying the statutory tests.

4.	Letters from doctors were lodged by the appellant at the hearing, which related to a claim for disability living allowance (DLA) on behalf of her son now aged 14 years.  One of the letters was from a consultant physician (the Consultant) dated 27 April 2005, noted in the Chairman’s note of documents which were considered by the tribunal in the following terms, “refers to [JL], mother”.  However, there is no further reference to the Consultant’s letter in the tribunal’s reasons for its decision.  

5.	The submission on behalf of the Department is that:

“… the weight which the tribunal ascribed to this evidence can be inferred from the records.  Firstly the tribunal’s note – that the letter referred to [the mother] – indicates that as the letter concerned [the mother’s] medical condition, the tribunal gave this evidence less weight.  Secondly the letter’s content which was relevant to [the son], … was based not on [the Consultant’s] opinion of [the son’s] needs but upon information conveyed to him by [the mother]”.

6.	How a tribunal weighs evidence is its exclusive function, unless there is an irrational or improper approach or it is inadequately explained.

7.	The Consultant’s letter certainly relates to the mother’s back trouble.  It is, moreover, correct that it is in that context, she gave information to the Consultant which he records as follows:

“Her son has ADHD and this leads to a good deal of sleep disturbance. … [the mother] is apprehensive about taking anything at night which might make her less alert to her son’s needs …”

However, the tribunal documents that the mother gave to it evidence of the son experiencing persistent bedwetting and sleeplessness, which its rejection of her claim shows that it did not accept.  Against that background, that the mother conveyed similar information to the Consultant, albeit with respect to appropriate medication for her own back problems, assumes a significance which the tribunal ought properly to have addressed.  

Inadequate Treatment of a Renewal Claim

8.	The son was previously in receipt of the highest rate of the care component of DLA and the lower mobility component of DLA until the renewal claim which is in issue in the present appeal, when the decision made on behalf of the Department was that he had no entitlement from the renewal date.  Adequacy of reasons in my view requires that a tribunal makes clear why a different conclusion has been reached on the renewal claim (R(M)1/96, a decision of a Commissioner in Great Britain).  It may be, for example, that it is considered that the claimant has improved or that the original decision was wrong.  The onus of proof remains on a claimant to demonstrate that he satisfies the appropriate statutory criteria in the relevant period on a balance of probabilities but, having regard to the opinion to the contrary previously taken, a brief explanation is required of why the outcome is now different.  The tribunal was disadvantaged by not having the papers relating to the previous award and it is suggested that these be included for the benefit of the new tribunal.  

Summary

9.	The appeal is therefore remitted to a new tribunal to begin again.  It is emphasised that there will be a complete rehearing on the basis of the evidence and arguments available to the new tribunal, and in accordance with my guidance above, and the determination of the son’s case on the merits is entirely for them.  Although the mother has been successful in her appeal limited to issues of law, a decision on the facts in the claimant’s case remains open.  

10.	There are, however, some misconceptions in the grounds of appeal with which I must deal.  Complaint is made about the tribunal’s assessment of the value of a letter from the ADHD Nurse, dated 17 February 2006.  However, the tribunal specifically explained what view it took of that letter and why it analysed it as having limited evidential value.  As I have already commented, unless no reasonable tribunal could evaluate as the tribunal did in its analysis then no error of law can thereby arise.  There was no obligation on the tribunal to investigate the matter further with the Nurse as the onus lies on a claimant to make out his or her case and a tribunal is entitled to rely on the evidence as put to it, outwith unusual circumstances raising an obvious problem with that evidence.

11.	Similarly, it was for the tribunal to decide what weight to be given to the evidence of the GP and that of the School Principal.  The School Principal’s report would only be of less probative value if it spoke of medical matters.  But it does not purport to do so.  It relates rather to the care and supervision needs which are at the heart of the appeal.  However, I do caution the new tribunal to bear in mind that, at school, a child is already in a fully supervised environment; the starting point is the son when on his own and an evaluation of the reasonable requirements which would then arise and a contrast made with those of a child in normal health.  The new tribunal should also carefully consider the points set out succinctly by Chief Commissioner Chambers QC in CI/97(DLA) at paragraph 8 of that decision, helpfully repeated by Chief Commissioner Martin QC at paragraph 10 of C6/99(DLA) which was contained in the written submission from the Department to the tribunal at page 25 of that submission.  

12.	The mother has sent in further evidence.  As the appeal is being remitted for a new hearing, it has not been necessary to take this into account but it is, of course, now on file for the consideration of the new tribunal.

L T Parker

Deputy Commissioner

22 November 2006