[2009] NISSCSC C13_09_10(DLA) (15 September 2009) 

Decision No: C13/09-10(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 22 February 2008

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 22 February 2008 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.  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 and there may be 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.	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) 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

6.	On 24 November 2006 a decision-maker of the Department decided that the appellant was not entitled to DLA from and including 12 November 2006, on a renewal claim.  There had been a previous award of entitlement to this benefit.

7.	An appeal against the decision dated 24 November 2006 was received in the Department on 18 June 2007.

8.	The appeal tribunal hearing took place on 22 February 2008.  The appellant attended the oral hearing of the appeal with his wife.  He was also represented as was the Department.

9.	The appeal tribunal disallowed the appeal and confirmed the decision dated 24 November 2006.

10.	On 21 August 2008 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.  The appellant, by this stage, was represented by the Law Centre (NI).

11.	On 12 September 2008, the application for leave to appeal was refused by the legally qualified panel member (LQPM).

	Proceedings before the Social Security Commissioner

12.	On 16 October 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.

13.	On 25 November 2008 observations were sought from Decision Making Services (DMS) and these were received on 16 December 2008.  DMS opposed the application.

14.	Observations were shared with the appellant on 12 January 2009.

15.	On 6 February 2009, further correspondence was received from the applicant’s representative.

16.	On 5 March 2009 a Commissioner directed that no oral hearing of the application would be necessary.

17.	On 24 March 2009 further correspondence was received from the applicant’s representative.

18.	On 1 June 2009, leave to appeal was granted by the Chief Social Security Commissioner.  In granting leave to appeal, the Chief Commissioner stated that it was arguable that the decision was wrong in law, because the tribunal did not deal with the issue of arthritis (acute gout) which apparently developed in October 2006 when assessing the claimant’s ability to walk.

19.	Further correspondence was received from the appellant’s representative on 24 June 2009.

	Errors of law

20.	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.

21.	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

22.	The error of law in the instant case relates to the appeal tribunal’s assessment of the evidence which was before it.

23.	As part of the appeal submission, the appeal tribunal had access to a report of an examination by an examining medical practitioner (EMP) which took place on 29 May 2007.  In the report of the medical examination, at Section 2 of the report, which seeks details of the appellant’s medical history, and relevant disabling conditions, the EMP notes that one of the appellant’s disabling conditions was arthritis.  At Section 6 of the report, which seeks a description of the appellant’s reported impairments and functional restrictions, the EMP noted arthritis again with the word ‘gout’ being added in brackets.  The EMP also noted the functional restrictions described by the appellant which included problems with weight-bearing.

24.	As part of the appeal submission the appeal tribunal also had access to the appellant’s letter of appeal.  In the letter of appeal, which is dated 14 June 2007, the appellant states that ‘… I have also developed arthritis (acute gout) since Oct 2006.  I was seen at the Ulster Hospital (Dr S…) and I am now on medication for [sic] try and reduce the severity of these attacks.  This has caused my general health to decline as my mobility is now very poor.’

25.	It is clear, therefore, that the appellant was basing his appeal in part, but a large part, on a submission that recently developed arthritis or acute gout was causing his health to decline and that his mobility was, by the date of his letter of appeal, very poor.

26.	As the record of proceedings for the appeal tribunal hearing confirms the appeal tribunal had before it the appellant’s general practitioner (GP) records.  The appellant’s representative, in the application for leave to appeal to the Social Security Commissioner, has made several submissions in relation to the content of the GP records.  In relation to those submissions, I would refer to what I said in C15/08-09 (DLA) at paragraphs 88-89 about the citing of evidence contained in GP records before a Social Security Commissioner:

88.	‘Nonetheless, I am of the view that there are important considerations for the parties to the proceedings, and the appeal tribunal, in relation to the use of GP records in DLA cases.  It will be safest and best practice for the parties to the proceedings to make reference to specific aspects of the GP records in submissions to the appeal tribunal.  For example, a representative might indicate that reliance is placed on a report dated [], from Mr [], consultant psychiatrist at [] hospital.  In turn, the appeal tribunal should note the specificity of the medical evidence to which reference is being made, in the record of proceedings for the appeal tribunal hearing.  In the statement of reasons for the appeal tribunal’s decision, reference should be made to specific medical reports, or other entries on which the appeal tribunal has relied or which it has rejected.  For example, the reasons might refer to an attendance at the Accident and Emergency Unit of [] hospital on [] date, during which [] was noted.

89.	Detailed recordings of submissions in respect of the evidence contained in the GP records, and precise references in statements of reasons will ensure that the Social Security Commissioner to whom any subsequent application or appeal is made can be certain as to the specificity of the evidence which was in contention before the appeal tribunal.’

27.	As in C15/08-09(DLA), I cannot be sure that the copies of the GP records which were submitted by the appellant’s representative are the same as those which were before the appeal tribunal.

28.	The record of proceedings notes that the appellant gave oral evidence to the appeal tribunal.  As part of the record of proceedings, the following is noted:

‘Dr W…
We will consider your medical problems.

(The claimant)
Hypertrophic Obstructive Cardiomyopathy is my main problem.  It was diagnosed in 2002.  I’ve a very enlarged heart and unstable angina.  It makes me very tired and fatigued.  I’m on Benzofluoride, then I took gout and arthritis out of that.  The hospital said it was due to my tablets – changed tablet.’

29.	How did the appeal tribunal assess the evidence which was before it?  As was noted above, the appellant had made a specific submission that recently developed arthritis or acute gout was causing his health to decline and that his mobility was, by the date of his letter of appeal, very poor.  The statement of reasons for the appeal tribunal’s decision with respect to the mobility component state, in part:

‘Dr L…, vascular surgeon in May 2006 said that (the claimant’s) peripheral vascular symptoms (pain in legs) started after 150 yards.  These symptoms feel like fatigue, are worse on inclines and bring (the claimant) to a complete halt at times, then he waits 2-3 minutes and can walk 250 yards.

In light of Dr L…’s comments we find that (the claimant) cannot be said to be virtually unable to walk.’

30.	The medical evidential basis on which the appeal tribunal has arrived at its conclusions with respect to the rules of entitlement to the higher rate of the mobility component of DLA is a report from a vascular surgeon relating to peripheral vascular disease.  Yet the appellant, at the date of his letter of appeal, 14 June 2007, was submitting that his problems with mobility had deteriorated due to the onset of arthritis or acute gout, which he submits began in October 2006, some 5 months after the medical report relied on by the appeal tribunal.  The evidence given to the EMP by the appellant is consistent with his submission that his problems with arthritis and gout began in October 2006.  The appellant’s representative has also submitted that there was additional medical evidence contained within the GP records which would support the submissions made by the appellant.

31.	The issue having been raised by the appellant meant that the appeal tribunal was under a duty to consider it.  That required the appeal tribunal to acknowledge, in its statement of reasons, that the issue of limited mobility caused by arthritis or acute gout was considered by the appeal tribunal.  It required the appeal tribunal to indicate what it made of the evidence concerning the extent of the appellant’s problems with arthritis or acute gout, the functional restrictions, if any, caused by the arthritis or acute gout and, having assessed that evidence, make sufficient findings of fact in connection with the issue.  Finally, the issue having been raised by the appellant, in his letter of appeal, and in his oral evidence to the appeal tribunal, the appellant was entitled to know, through the statement of reasons, what was the appeal tribunal’s determination in connection with the issue of a further or enhanced limitation in mobility, caused by arthritis or severe gout, and the reasons for its conclusions in connection with it.

32.	Having looked at the statement of reasons for the appeal tribunal’s decision, there is the reference to peripheral vascular disease and to a medical report in connection with that.  I have already noted, however, that the medical report pre-dated the first reported problems by the appellant with arthritis or severe gout.  Thereafter I cannot find any reference to arthritis or severe gout, any assessment of the evidence in connection with that issue, any findings in fact in connection with that issue, any conclusions as to whether the appellant satisfied the relevant conditions of entitlement concerning entitlement to the higher rate of the mobility component as a result of problems with arthritis or severe gout and sufficient reasons in connection with all of the above.

33.	Having found that the appeal tribunal was under a duty to consider the issue, and having failed to consider that issue, and explain, in its statement of reasons, that it has so considered it I find that the decision of the appeal tribunal is in error of law.

	The appellant’s other grounds for appealing to the Social Security Commissioner

34.	Having found that the decision of the appeal tribunal is in error of law, I do not have to consider the appellant’s other grounds for appealing.  I would indicate, however, that I would not have found the decision of the appeal tribunal to be in error of law on the other grounds cited by the appellant.

	Disposal

35.	The decision of the appeal tribunal dated 22 February 2008 is in error of law.

36.	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.

37.	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, and there may be 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.

38.	It is not clear whether there have been any subsequent claims to DLA, and the outcome of those claims.  The Department is directed to give further details of any further claims to DLA in advance of the next oral hearing of the appeal.

39.	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).

40.	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.

41.	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
Commissioner

15 September 2009