C012_08_09(DLA)

Decision No:  C12/08-09(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 24 October 2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	Having considered the circumstances of the case and any reasons put forward in the request for a hearing, I am satisfied that the appeal can properly be determined without a hearing.

2.	The decision of the appeal tribunal dated 24 October 2007 is in error of law.  The error of law identified will be explained in more detail below.

3.	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.

4.	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, as there are further findings of fact which require to be made.  Further 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.

5.	In referring the case to a differently constituted appeal tribunal for re-determination I direct that the appeal tribunal takes into account the direction and guidance set out below.

6.	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

7.	On 29 November 1996, following the making of a renewal claim, and the gathering of relevant evidence by an officer of the Department, it was decided that the appellant satisfied the conditions of entitlement to the lowest rate of the care component of DLA, from and including 3 February 1997.

8.	On 26 October 2006 a further self-assessment claim form in respect of entitlement to DLA was received in the Department.

9.	In the appeal submission, prepared for the appeal tribunal hearing, the appeals writer submits that the receipt, on 26 October 2006, of the self-assessment claim form was, in effect, an application made by the appellant for a supersession of the decision dated 29 November 1996.

10.	Following receipt of further evidence, in the form of a report from the appellant’s general practitioner, a decision-maker, in a decision dated 24 March 2007, decided to supersede the earlier decision of the Department dated 29 November 1996 and decided that the appellant was not entitled to any rate of DLA, from and including 24 March 2007.

11.	An appeal against the decision dated 24 March 2007 was received in the Department on 13 April 2007.

12.	The decision dated 24 March 2007 was reconsidered on 17 September 2007 but was not changed.

13.	The appeal tribunal hearing took place on 24 October 2007.

14.	The appeal tribunal disallowed the appeal, and issued two separate decision notices to the following effect:

	‘Appeal disallowed.

The appellant is not entitled to the care component of DLA from and including 24.3.07’

 	‘Appeal disallowed.

The appellant is not entitled to the mobility component of DLA from and including 24.3.07’

15.	On 13 December 2007 an application for leave to appeal to the Social Security Commissioner was received in The Appeals Service (TAS).  In the application the appellant submitted that she wished to contest the ‘Statement of Reasons’ for the following reasons:

	(i)	work was taken into account in the decision;

	(ii)	error in the report.

16.	By ‘work was taken into account in the decision’ in (i) the appellant referred to a sentence in the statement of reasons which referred to her working full-time.

17.	By ‘error in the report’ in (ii) the appellant wished to challenge a sentence in the statement of reasons in which it was stated that she had not been referred to see a consultant, and also wished to challenge a further statement in relation to the provision of aids.

18.	On 13 February 2008 the application for leave to appeal was refused by the legally qualified panel member (LQPM).

	The proceedings before the Social Security Commissioner

19.	On 3 March 2008 a further application for leave to appeal to the Social Security Commissioner was received in the Office of the Social Security Commissioners and Child Support Commissioners.  In the further application for leave to appeal the appellant cited similar grounds to those made in the application to the LQPM, but adding in connection with the first that she believed that she was discriminated against during her appeal.

20.	On 14 March 2008 observations on the application were sought from the Decision Making Services (DMS) section of the Department and these were received on 1 April 2008.  DMS opposed the application, indicating:

(i)	(in connection with the first submitted ground) that while there was agreement that participation in full-time employment does not preclude entitlement to DLA, the evidence concerning work was not the deciding factor in the appeal tribunal’s decision which had placed a greater emphasis on the medical evidence available to it; and

(ii)	(in connection with the second submitted ground) that the statement regarding referral to a consultant had to be seen in context.

21.	The observations from DMS were shared with the appellant on 10 April 2008.

22.	On 16 May 2008 further observations on the issue of supersession were requested from DMS and these were received on 21 May 2008.

23.	These further observations were shared with the appellant on 6 June 2008.

24.	On 8 July 2008, the application for leave to appeal, was accepted for special reasons.

25.	Leave to appeal was granted by the Chief Social Security Commissioner on 15 October 2008.  The stated reason by the Chief Social Security Commissioner was that ‘It is arguable that the decision was wrong in law, because the tribunal did not deal specifically with the issue of supersession’.

26.	On 4 November 2008 further observations were received from the appellant.

	The error of law

27.	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.

28.	In granting leave to appeal, the Chief Social Security Commissioner determined that ‘It is arguable that the decision was wrong in law, because the tribunal did not deal specifically with the issue of supersession’.

29.	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.

30.	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.’

31.	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.

32.	The decision under appeal to the appeal tribunal, in the present case, was a decision dated 24 March 2007, in which a decision-maker decided to supersede the earlier decision of the Department dated 29 November 1996 and, further, decided that the appellant was not entitled to any rate or component of DLA, from and including 24 March 2007.

33.	Accordingly, the first task of the appeal tribunal was to determine whether the decision-maker, on 24 March 2007, had grounds to supersede the earlier decision of the Department, dated 29 November 1996.

34.	If the appeal tribunal determined that the decision-maker, on 24 March 2007, did not have grounds to supersede the decision dated 29 November 1996, then that latter decision would continue to have effect.

35.	If the appeal tribunal determined that the decision-maker, on 24 March 2007, did have grounds to supersede the decision dated 29 November 1996, then the appeal tribunal could have gone on to consider entitlement to benefit, in light of the substantive rules for entitlement to DLA.

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

37.	In the written submissions prepared for the appeal tribunal hearing the appeals writer dealt with the supersession in some considerable detail.  Firstly, the appeals writer submitted that the receipt by the Department, on 16 October 2006, of the self-assessment claim was treated as an application by the appellant for a supersession of the decision dated 29 November 1996.

38.	Secondly, and from pages 4 to 6 of the submission, the appeals writer sets out the basis on which it is submitted that the decision-maker, on 24 March 2007, did have grounds to supersede the decision dated 29 November 1996.  The appeals writer submitted that the available evidence suggested that there had been an improvement in the appellant’s care needs sufficient to amount to a relevant change of circumstances, since the decision dated 29 November 1996 had been made, and satisfying regulation 6(2)(a)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.

39.	Thirdly, the appeals writer submits that there was also sufficient evidence for the decision-maker, on 24 March 2007, to further decide that the appellant did not satisfy the conditions of entitlement to either component of DLA from and including 24 March 2007.

40.	Fourthly, at page 12 of the appeal submission, the appeals writer sets out the legal basis upon which entitlement to DLA was removed from a specific date (‘the effective date of supersession’).

41.	What does the appeal submission tell the appellant?  It informs her of the legal and evidential basis on which the Department has decided, on foot of her application, that she no longer satisfies the conditions of entitlement to DLA.  It informs her of the reasons for that decision ie that there has been a change of circumstances permitting the Department to look again at its earlier decision and to change that earlier decision so that she is no longer entitled to the relevant benefit.  Finally it informs her of the date from which she is no longer entitled.

42.	By contrast, neither the decision notice prepared by the LQPM of the appeal tribunal, nor the statement of reasons for the appeal tribunal’s decision, deals with the issue of supersession to any degree of sufficient detail.  As was noted above, the appeal tribunal issued two separate decision notices to the following effect:

	‘Appeal disallowed.

The appellant is not entitled to the care component of DLA from and including 24.3.07’

	‘Appeal disallowed.

The appellant is not entitled to the mobility component of DLA from and including 24.3.07’

43.	In the statement of reasons, it is noted that:

	‘Appellant requested a supersession on 26.10.06 …’

	Thereafter, the remainder of the statement of reasons is taken up with an assessment of the evidence available to the appeal tribunal, some limited findings in fact, and a conclusion that:

‘… in the light of all the evidence, that [sic] Appellant did not have any disability sufficiently severe to merit an award of Disability Living Allowance.’

44.	What the decision notice and statement of reasons does tell the appellant is that the appeal tribunal has determined and agrees that the appellant should not have an entitlement to either component of DLA from a specific date, and then something of the evidential basis for its conclusions on that issue.

45.	What the decision notice and statement of reasons does not inform the appellant is:

	(i)	that the appeal tribunal has addressed the issue of whether the Department had a legal and evidential basis for reconsidering and changing its earlier decision; and

	(ii)	the effective date from which any new decision should take effect.

46.	In written observations on the question of the appeal tribunal’s treatment of the supersession issue, received on 21 May 2008, DMS submitted that:

(i)	the record of proceedings indicates that the appeal tribunal had considered the appeal submission and accompanying documents;

(ii)	the appeal submission outlined the basis on which the previous decision of the Department had been superseded;

(iii)	the record of proceedings also indicates that the appellant’s representative had made a submission that there had been no relevant change in her circumstances;

(iv)	the statement of reasons notes that the appellant had requested a supersession;

(v)	the statement of reasons finishes by concluding that the appellant did not satisfy the conditions of entitlement to DLA;

(vi)	in light of (i) to (v) above that:

‘The tribunal did not specifically refer to the grounds for supersession in the conclusion to its statement of reasons.  While it may have been preferable for it to have done so, I would submit that in concluding that no award of Disability Living Allowance was appropriate it is implicit that the Tribunal considered that grounds for supersession existed to remove the award namely a relevant change of circumstances.’

47.	With respect to the submissions made by DMS on this issue, I cannot agree with them.

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.

54.	In the present case, however, the appellant’s representative, as is made clear in the record of proceedings, made a specific submission that ‘nothing [sic] changed since initial award’.  That representative, and, more importantly, his client were entitled to know the basis upon which the appeal tribunal had concluded that something had changed, justifying the Departmental supersession decision.

55.	What the appellant, and her representative were informed, through the decision notice, and the statement of reasons, was the basis on which the appeal tribunal determined that she was not entitled to DLA.  What they were not informed was the basis on which the appeal tribunal determined that there had been a relevant change, justifying the supersession, and from which effective date.  The decision notice and statement of reasons collectively read as if they had been prepared in connection with a decision of a new or renewal claim.

56.	It could well be the case that the appeal tribunal agreed with the detailed submissions, set out in the appeal submission, on all of the supersession issues – grounds, entitlement and effective date.  If that is the case it would have been easy to make reference to those submissions and add further reasons as to the basis on which it so agreed.

57.	DMS submits that it may have been preferable for the appeal tribunal to refer specifically to the grounds for supersession in the conclusion to its statement of reasons.  It is not preferable but essential that it should do.
 
58.	The failure of the appeal tribunal to make explicit its determination, findings and conclusions on the supersession issue means that it is in error of law, and it is for that reason that it is set aside.

	The other grounds raised by the appellant

59.	As was noted above, in the application for leave to appeal, the appellant submitted that she wished to contest the ‘Statement of Reasons’ for the following reasons:

	(i)	work was taken into account in the decision;

	(ii)	error in the report.

60.	By ‘work was taken into account in the decision’ in (i) the appellant referred to a sentence in the statement of reasons which referred to her working full-time.

61.	By ‘error in the report’ in (ii) the appellant wished to challenge a sentence in the statement of reasons in which it was stated that she had not been referred to see a consultant, and also wished to challenge a further statement in relation to the provision of aids.

62.	In their initial observations on the application for leave to appeal DMS opposed the application, indicating:

(i)	(in connection with the first submitted ground) that while there was agreement that participation in full-time employment does not preclude entitlement to DLA, the evidence concerning work was not the deciding factor in the appeal tribunal’s decision which had placed a greater emphasis on the medical evidence available to it; and

(ii)	(in connection with the second submitted ground) that the statement regarding referral to a consultant had to be seen in context.

63.	I would have agreed that the decision of the appeal tribunal would not have been set aside on the basis of either of the two grounds submitted by the appellant in her original application for leave to appeal to the Social Security Commissioner.

64.	In this regard I agree with DMS that the reference to fact that the appellant was engaged in full-time work was not the deciding factor in the appeal tribunal’s reasons, and its greater emphasis was on the medical evidence available to it.  Further, I agree that the statement made regarding referral to a consultant had to be seen in context.

65.	As I would not have set aside the decision of the appeal tribunal on either of these grounds the following comments in relation to the connection between engagement in employment or work and entitlement to DLA must be read in context.

66.	The rules of entitlement to certain social security benefits have a specific link to work or employment.  That link - as in entitlement to income support - may involve a prohibition on entitlement if the claimant is in work, although much may turn on the number of hours, amounts of specific earnings etc.  The rules of entitlement to other social security benefits may have a connection with work in that they are designed to be available for those incapable of work - incapacity benefit or employment & support allowance – or to provide an income while looking for work or seeking to return to employment – jobseeker’s allowance.  Support to obtain employment or remain in work may be provided through the tax credits scheme.  Finally, there may be an entitlement to certain social security benefits – industrial injuries disablement benefit – because of the occurrence of an industrial accident or the onset of a prescribed disease.

67.	The rules of entitlement to DLA have no specific connection to work in that participation in full or part-time employment does not prohibit entitlement to DLA.  Indeed it is the case that there are many claimants to DLA who have a valid and legal entitlement, satisfying the legislative rules of entitlement, and, who are also working.

68.	In the present case the appellant, in her application for leave to appeal to the Social Security Commissioner, may have been submitting that the appeal tribunal was either making an adverse connection, or drawing an adverse inference from the fact that she was working and seeking an entitlement to DLA.  If that had been the case then the appeal tribunal would have been wrong to do so.

69.	A question which arises, however, is the extent to which an adjudicating authority, including an appeal tribunal, is entitled to take into account, in deciding entitlement to DLA, evidence concerning participation in employment, whether full or part-time.

70.	It was noted above that the rules of entitlement to DLA have no specific link to work.  Regulation 12(1)(a) of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992, as amended, makes certain provision for entitlement to the higher rate of the mobility component of DLA.  It states that the test of ‘physical condition as a whole’ shall be applied ‘without having regard to circumstances peculiar to that person as to place of residence or as to place of, or nature of, employment’.

71.	This part of Regulation 12(1)(a) was considered by Mrs Commissioner Brown in C41/99-00(DLA).  At paragraphs 20 and 21 she considered the correct approach to be as follows:

	‘That approach is that Regulation 12(1)(a) does not prevent a decision maker from taking into account in determining a claimant's physical condition, the place of and nature of a claimant's employment.  The sub-paragraph does, however, prevent a decision maker, where a person is found to satisfy the other conditions, from having regard to the nature or place of his employment, in deciding whether or not he is entitled to the component.

21.	To give a couple of examples - a decision maker could take into account the fact that a person is employed as a professional footballer in deciding whether or not the physical conditions for the mobility component were satisfied.  He could not, in, say, the case of a concert pianist find those conditions to be satisfied but say that because the nature of the employment does not necessitate walking, the allowance is not to be awarded.’

72.	Quite clearly, therefore, the Commissioner considers that an adjudicating authority can take into consideration the fact that someone, as in the case before her, is in full-time employment in deciding whether it is satisfied that person’s physical condition as a whole does limit him to the extent or being unable or virtually unable to work, or for the purposes of the other routes to entitlement to the higher rate of the mobility component of DLA.

73.	Provision for entitlement to the lower rate of the mobility component of DLA is found in section 73(1)(d) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended.  The test is whether the claimant 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.’

74.	While it would probably be unusual, an individual in employment might argue for entitlement to the lower rate of the mobility component by submitting that any travel to work, either by foot, public transport or by car, would involve the use of a route which was familiar, and, accordingly, should be disregarded.  Such a submission would overlook judicial authority which confirms that consideration can be given to the use of familiar routes in assessing the ability of an individual to use routes which are not familiar.

75.	In R(DLA) 2/08 Mrs Commissioner Parker stated, at paragraph 12:

‘12.	If a claimant is unable to walk even on familiar routes without guidance or supervision, then it logically follows that he will also be unable to do so on unfamiliar ones; but the converse does not apply.  It will depend upon the nature of the claimant’s condition.  If the complaint is of a bad left knee causing falls, then the difficulties are likely to be the same whether the route is familiar or unfamiliar; however if, for example, a claimant has genuine anxiety and panic, then what he is able to do on a familiar route does not necessarily govern his capacity on an unfamiliar one.’

	Further, at paragraph 14, she stated:

’14.	In consideration of the legal criteria for entitlement to lower mobility, there must be ignored any ability to use familiar routes, albeit not an inability.  However, when considering whether the claimant is unable to walk on unfamiliar routes without guidance or supervision, it may be evidentially relevant to that question as a matter of fact what, if any, are his difficulties with familiar routes.  When a claimant does not differentiate between problems on familiar and unfamiliar routes, and there is nothing inherent in his condition to suggest a relevant distinction, then if he is unable to satisfy a tribunal that he has the required difficulty on familiar routes, in a context where the onus of proof on all matters lies on him, a tribunal may legitimately infer that he therefore would not need guidance or supervision on unfamiliar routes either.  It is not that an adjudicating authority is requiring as a matter of law that he has difficulties on familiar routes before it will accept entitlement to lower mobility but rather that, from all the evidence, when considering his capacity on unfamiliar routes, it makes deductions from the information about his ability on familiar ones.  A tribunal usually has to so reason because a claimant often says that he never walks on unfamiliar routes, which is entirely understandable.’

76.	Accordingly, in what would be the unusual circumstance of a claimant arguing that the familiar route to work should not be relevant, it is clear from the conclusions of Mrs Commissioner Parker that evidence of ability on familiar routes can be pertinent to the question of satisfaction of the legislative tests.

77.	Additionally, the ability to drive, even on familiar routes, is evidence of clear headedness and competency which is relevant to the ability to walk on unfamiliar routes without guidance and supervision. In R1-07(DLA), at paragraph 9, Mrs Commissioner Brown stated that:

	‘I consider the Department’s submission to be correct in that the tribunal concluded that the ability to plan a journey, drive a car and therefore react to road conditions was indicative of clear headedness and competency.  Such clear headedness and competency is a matter which is obviously relevant to the ability to walk on unfamiliar routes without guidance or supervision.  I consider the Department to be correct that it was the possession of those abilities upon which the tribunal relied, not the claimant’s ability to use familiar routes.  When driving no matter whether a route is familiar or not there can be varying traffic conditions, emergency situations, pedestrians etc.  The ability to drive even on familiar routes is evidence of clear headedness and competency.  It is quite obvious from the tribunal’s findings, where it specifically referred to the ability to walk on unfamiliar routes, that it has not misinterpreted the test for the lower rate of the mobility component.  It has merely used the evidence of driving as showing clear headedness and competency indicative of ability to walk unsupervised and unaccompanied.’

78.	Once again, therefore, the ability to drive on familiar routes, such as to and from the place of employment, can and should be taken into account in assessing the ability to walk without guidance or supervision.

79.	The rules of entitlement to the care component of disability are to be found in section 72 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended.  In summary, entitlement might be established through the satisfaction of various tests concerning ability to prepare a cooked main meal, the requirement for attention in connection with bodily functions, or the requirement for supervision or watching over to prevent danger.  To what extent may evidence of functional ability in the workplace, or the ability to work unsupervised be taken into account in deciding whether the legislative tests in relation to the care component are satisfied?

80.	There does not appear to be direct judicial authority on the specifics of this question but there is case-law which gives guidance on what the answer might be.

81.	In R(DLA) 2/05, Mr Commissioner Williams determined that in testing a claimant’s abilities against the hypothetical ‘cooking’ test, an appeal tribunal should look at all the evidence as to the claimant’s ability to perform the activities involved in cooking, including direct evidence of actual difficulties with cooking and indirect evidence of other activities using the same bodily functions that are normally used in cooking.  At paragraph 8 he stated:

‘8.	The task is to apply the test to the problems the claimant has.  That is a question of fact, not law.  The starting point, … , is what the claimant says in the claim form.  To that must be added all other evidence.  The tribunal’s job, if there is a dispute, is to test for itself the claimant’s abilities against the hypothetical test.  It can do that by direct application – finding what difficulties the claimant actually has in cooking in the way he or she does so, if that happens.  And it can do that by indirect application – finding what limits the claimant has on gripping, lifting, bending, planning or otherwise by reference to other activities the claimant does undertake such as eating, washing, driving, shopping, cleaning, being aware of danger, or any other physical or mental activity using the same bodily functions as are normally used in cooking.  Having looked at all the available evidence, it must then, as the House of Lords expressly confirmed, take a broad judgmental view about whether the claimant’s problems are such that the claimant is or is not able to meet the test for the relevant period, with input from all three members of the tribunal.’

82.	In R2/05(DLA)(T), a Tribunal of Commissioners confirmed that it is proper for an appeal tribunal to seek to build up a picture of a claimant’s lifestyle and general level of ability and to draw inferences as to needs from them.  At paragraph 38 they stated:

‘… Criticism is made of the appeal tribunal for enquiring about activities other than those relating to the claimant’s care and mobility needs.  It is perfectly proper for a tribunal to seek to build up a picture of an appellant’s lifestyle and general level of ability.  A tribunal is entitled to make findings and draw inferences as to care and mobility needs from the answers obtained.  For example, someone who says that they are unable to cook a main meal may accept that they have hobbies involving many actions similar to those used in cooking.  The ability to perform those actions may be directly relevant to the ability to cook.  Again, it is not uncommon for appellants to claim that they need guidance and supervision when walking outside due to confusion but to admit that they are able to drive.  In the present appeal we consider that the appeal tribunal made perfectly proper use of the information which it obtained and reached conclusions which it was entitled to reach.’

83.	A logical extension of the principle that an appeal tribunal is permitted to ‘build up a picture of an appellant’s lifestyle and general level of ability’ is authorization to include within that picture evidence relating to a person’s employment, where relevant.  More importantly, the appeal tribunal will be permitted to adduce evidence of the level of functional ability arising from the work requirements, make findings on that level of functional ability and draw inferences concerning care and mobility needs.

84.	It will and must not always be the case that the inference to be drawn is an adverse one.  It may be the case that an individual is only able to work because necessary adjustments have been made to accommodate a disability, which might involve the provision of such attention in connection with bodily functions, or supervision, that would satisfy the legislative tests even outside of the employment environment.  Equally an appeal tribunal might conclude that evidence of functional ability associated with the requirements of a job, particularly where the employment is physically demanding, might be sufficient to determine that the relevant legislative tests cannot be satisfied.

85.	As with all decision-making in relation to entitlement to DLA, evidence concerning work requires rigorous assessment, and proper fact-finding, followed by an accurate application of the relevant law.

	Guidance to the parties to the proceedings and the appeal tribunal
	Grounds to supersede 

86.	The appeal tribunal is reminded that the decision under appeal is a decision, dated 24 March 2007, to supersede an earlier decision of the Department dated 29 November 1996 and to remove entitlement to DLA from and including 24 March 2007.

87.	Accordingly, the first task of the appeal tribunal is to determine whether the decision-maker, on 24 March 2007, had grounds to supersede the earlier decision of the Department, dated 29 November 1996.  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.

88.	In making its determination on the issue of whether the Department had grounds to supersede the appeal tribunal should note the remarks of Mrs Commissioner Brown, at paragraph 7, of the decision in C14/04-05 (DLA):

‘… DLA is a composite benefit and … once grounds for supersession have been established both components can be looked at. R2/95(DLA) and CIB/4751/2002 so indicate.’

89.	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 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.

90.	In the original submission, prepared by the Department for the appeal tribunal hearing, it was submitted that the relevant ground on which the supersession was founded was a relevant change of circumstances.  The change was that there had been an improvement in the appellant’s care needs.

91.	It will be for the Department to submit whether that remains the ground upon which the decision to supersede was made.  Equally the appellant and her representative may make representations on this key issue as to whether the Departmental decision-maker had grounds to supersede.

92.	It will be for the appeal tribunal to determine whether the Department’s decision to supersede on the ground of a relevant change of circumstances was correct, and whether the original decision was altered in a manner which follows from that ground.

93.	As was noted by the Tribunal of Commissioners in Great Britain, 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.’

94.	This means that the appeal tribunal, subject to the other guidance given by the Tribunal of Commissioners on the exercise and limits of the authority, has the power to remedy any defect in the decision under appeal, and make any decision which the decision-maker should have made.

95.	If the appeal tribunal determines that the decision-maker, on 24 March 2007, did not have grounds to supersede the decision dated 29 November 1996, then that latter decision continues to have effect.

96.	If the appeal tribunal determines that the decision-maker, on 24 March 2007, did have grounds to supersede the decision dated 29 November 1996, then the appeal tribunal should go on to consider entitlement to benefit, in light of the substantive rules for entitlement to DLA.

	Effective date of supersession

97.	In all appeals involving a supersession decision the appeal tribunal is under a duty to consider the date from which any supersession should take effect (‘the effective date of supersession’).  This is not a straightforward issue and much will depend on the ground for supersession and the benefit at issue in the appeal.

98.	The effective date of supersession rules are set out in Articles 11(5) and (6) of the Social Security (Northern Ireland) Order 1998, and regulation 7 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, all as amended.

99.	Where an appeal tribunal fails to consider the effective date of supersession rules, or misapplies these, it may find that its decision is in error of law.

100.	The parties to the proceedings in the present case may wish to make submissions to the appeal tribunal on the application of the effective date of supersession rules to the issues arising in the appeal.

	Further claims to Disability Living Allowance

101.	The decision under appeal is a decision of the Department dated 24 March 2007.  That decision had the practical effect of removing entitlement to DLA from and including 24 March 2007.  It may be the case that the appellant has made a further claim(s) to DLA since the date of the decision under appeal.

102.	The Department is directed to provide the appeal tribunal with details of any claims to DLA since 24 March 2007 and the outcomes of those claims.

103.	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).

	Concessions made by the appellant’s representative

104.	At the original oral hearing of the appeal the appellant’s representative submitted to the appeal tribunal that the appellant was ‘seeking reinstatement of low rate care’.  It may be the case that the representative was conceding that no other rate or component of DLA was at issue in the appeal.  The appeal tribunal is directed to consider any future such concession in light of the principles set out by the Court of Appeal in Mongan v Department for Social Development ([2005] NICA 16).

(signed):  K Mullan

Commissioner

15 January 2009