[2009] NISSCSC C36_08_09(DLA)  (08 June 2009)

Application No:  C36/08-09(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 16 June 2008

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	Having considered the circumstances of the case, I am satisfied that the application can properly be determined without a hearing.

2.	I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.

3.	Both parties to the proceedings before the Social Security Commissioner have expressed the view that the decision of the appeal tribunal, which is the subject of this appeal, is in error of law.

4.	I am in agreement with the Decision Making Services unit (DMS) of the Department that the decision of the appeal tribunal was in error of law for the reasons identified by DMS.

5.	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.

6.	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 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.  Additionally, there will be evidence, including medical evidence, to which I have not had access.  Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.

7.	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.  The newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal.

Background

8.	The decision-making process giving rise to appeal tribunal hearing is somewhat complicated.

9.	On 9 October 2007, a decision-maker of the Department decided to supersede an earlier decision of the Department, dated 15 January 2007, and to make an award of entitlement to the lower rate of the mobility component and the middle rate of the care component of DLA, from and including 9 October 2007.

10.	On 14 October 2007, the decision dated 9 October 2007 was reconsidered but was not changed.

11.	A letter of appeal against the decision dated 9 October 2007 was received on 22 October 2007.

12.	It would appear that the Department inadvertently treated the letter of appeal, dated 9 October 2007, as an application for a supersession.

13.	Following the receipt of additional information, another decision-maker, on 13 November 2007 decided not to ‘admit’ the application.  The precise legal status of that decision is unclear to me.

14.	On 23 November 2007, the decision dated 13 November 2007 was reconsidered but was not changed.

15.	On 19 December 2007, a further letter of appeal was received.

16.	Thereafter the appeal proceeded to an appeal tribunal.  An oral hearing of the appeal took place on 16 June 2008.  The appellant was present with her sister, and was represented.  The Department was also represented.

17.	The appeal tribunal recorded that it had disallowed the appeal in respect of both components of DLA.

18.	The decision notice for the decision in respect of the care component reads as follows:

		‘Appeal disallowed.  There were grounds to supersede the decision dated 15/1/02.  The appellant satisfies the conditions of entitlement to an award of the lowest rate of the care component of Disability Living Allowance from and including 9/10/07.’

19.	The decision notice for the decision in respect of the mobility component reads as follows:

‘Appeal disallowed.  The appellant satisfies the conditions of entitlement to an award of the lower rate of the mobility component of Disability Living Allowance from and including 9/10/07.’

20.	On 2 October 2008, an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.

21.	On 27 October 2008, the application for leave to appeal was refused by the legally qualified panel member.

Proceedings before the Social Security Commissioner

22.	On 21 November 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.

23.	The grounds cited in the application for leave to appeal were:

	(i)	in relation to entitlement to the mobility component, the totality of the other medical evidence and the evidence of the appellant clearly outweighed that of the consultant orthopaedic surgeon on which the appeal tribunal had relied; and

	(ii)	based on the available medical evidence and, more significantly, the evidence of the appellant, consideration should have been given as to whether she should have an entitlement to the middle or highest rate of the care component.

24.	Observations on the application were sought from DMS and these were received on 23 February 2009.  In its observations, DMS supported the appeal on the basis of aspects of the second ground cited in the application.

Errors of law

25.	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.

26.	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 present case

27.	The conditions of entitlement to the care component of DLA are to be found in section 72(1) of the Social Security Contributions and Benefits (Northern Ireland) Act, as amended.  Section 72(1) provides that:

	‘… a person shall be entitled to the care component of a disability living allowance for any period throughout which –

	(a)	he is so severely disabled physically or mentally that –

		(i)	he requires in connection with his bodily functions attention from another person for a significant portion of the day (whether during a single period or a number of periods); or

		(ii)	he cannot prepare a cooked main meal for himself if he has the ingredients;

	(b)	he is so severely disabled physically or mentally that, by day, he requires from another person—

		(i)	frequent attention throughout the day in connection with his bodily functions; or

		(ii) 	continual supervision throughout the day in order to avoid substantial danger to himself or others; or

	(c)	he is so severely disabled physically or mentally that, at night,—

		(i)	he requires from another person prolonged or repeated attention in connection with his bodily functions; or

		(ii)	in order to avoid substantial danger to himself or others he requires another person to be awake for a prolonged period or at frequent intervals for the purpose of watching over him.’

28.	The statement of reasons for the appeal tribunal’s decision contains the following statements:

		‘… The appellant did not indicate in her self assessment form a requirement for someone to keep an eye on her at nights and did not indicate a level of night time needs which would require prolonged and repeated attention.

		… she does not reasonably require … prolonged or repeated attention at night in connection with her bodily functions.  We also find that she did not reasonably require … another person to be awake for a prolonged period or at frequent intervals at night to watch over her in order to avoid substantial danger to herself or others.’

		The previous award of the highest rate of the care component had been in part based on a report by an Examining Medical Officer dated 11 December 2001 in which he indicated that the appellant had panic attacks every other night and needed supervision and reassurance.  The appellant gave no evidence of such night time needs either in written or oral evidence.’

29.	It is clear, therefore, that the appeal tribunal had determined that the appellant did not satisfy any of the conditions set out in section 72(1)(c) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended.  Accordingly, the appellant could not have an entitlement to the middle rate of the care component of DLA, on the basis of night-time attention or supervision requirements, or the highest rate of the care component at all.  Further, the basis upon which the appeal tribunal had determined that the appellant did not satisfy the provisions of Section 72(1)(c)(ii) of the 1992 Act was that she had given ‘no evidence of such night time needs either in written or oral evidence’.

30.	The following evidence was recorded at paragraphs 5 to 13 of page 2 and paragraph 1 of page 3 of the record of proceedings:

“Mrs Crockard
Night-time needs?

Appellant 
Turns 4/5 times at night.  Uses bathroom/commode under stairs.  Would dribble.

Mrs Crockard
Severity of pain?  Can she get up/go herself?

Appellant
Very severe

Mrs Kirke
Pointed out that on form she had completed on 17.03.07 (Page 15 of 20) she had not completed the section as to why she needed someone keeping an eye on her at night.  Any reason why she didn’t complete?

Appellant
Overlooked this

Mrs Kirke
Does she need someone keeping an eye?

Appellant
Yes.  Needs someone there for support

Mrs Kirke
Physically?  What about mental?

Appellant
Panic attacks - would need someone there.  Has a fear of being on her own.

31.	This extract demonstrates that far from there being ‘no evidence’ relating to the requirement for another person to be awake for a prolonged period or at frequent intervals for the purpose of watching over, in order to avoid substantial danger, the appellant had given direct oral evidence to the appeal tribunal in relation to such a requirement.

32.	It is, of course, for the appeal tribunal to accept or reject any evidence which is before it, on the basis of a proper assessment of that evidence.  As was pointed out by DMS, in its written observations on the application:

‘The need for the tribunal to state adequate reasons for its decision has been dealt with by a Tribunal of Commissioners in reported decision R2/01(IB)(T).  At paragraph 17 the Commissioners stated:

“…The assessment of evidence is a matter for the Tribunal as the fact finding body and it is quite entitled to exercise its judgment in making that assessment.  It must, however, give adequate reasons for its decision…..”

At paragraph 38 the Commissioners referred to the judgement of Lord Lane C.J. in R v Immigration Appeal Tribunal, ex parte Khan [1983] QB 790:

“… The important matter which must be borne in mind by tribunals in the present type of circumstances is that it must be apparent from what they state by way of reasons first of all that they have considered the point which is at issue between the parties, and they should indicate the evidence on which they have come to their conclusions.

Where one gets a decision of a tribunal which either fails to set out the issue which the tribunal is determining either directly or by inference, or fails either directly or by inference to set out the basis on which it has reached its determination on that issue, then that is a matter which will be very closely regarded by this court, and in normal circumstances will result in the decision of the tribunal being quashed.  The reason is this.  A party appearing before a tribunal is entitled to know, either expressly stated by it or inferentially stated, what it is to which the tribunal is addressing its mind.  In some cases it may be perfectly obvious without any express reference to it by the tribunal; in other cases it may not.  Secondly, the appellant is entitled to know the basis of fact on which the conclusion has been reached.  Once again in many cases it may be quite obvious without the necessity of expressly stating it, in other cases it may not.”

33.	DMS also referred to my own decision in C8/08-09(IB), where I stated, at paragraph 60:

……..there is a clear duty on appeal tribunals to undertake a rigorous assessment of all the evidence before it and to give an explicit explanation as to why it has preferred, accepted or rejected evidence which is before it and which is relevant to the issues rising in the appeal.’

34.	In the instant case, the statement of reasons makes no mention of the oral evidence of the appellant concerning her requirement to have someone with her at night.  Further, the statement of reasons gives no indication as to how that evidence was assessed and whether or not it was accepted or rejected.

35.	I have decided that the statement of reasons for the decision of the appeal tribunal is not adequate to explain why the appeal tribunal accepted and preferred the evidence which it did, and rejected other evidence available to it.  According to the principles in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), as accepted by the Tribunals of Commissioners in Great Britain in R(I) 2/06 and CSDLA/500/2007, that means that the decision of the appeal tribunal is in error of law.  The decision is set aside.

Disposal

36.	The decision of the appeal tribunal, dated 16 June 2008 is in error of law.

37.	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.

38.	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 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.  Additionally, there will be evidence, including medical evidence, to which I have not had access.  Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.

39.	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.  In this respect, and in light of my comments, at paragraphs 8 to 15 above, I direct that the Department prepares a new submission which sets out the decision-making process giving rise to the appeal.

40.	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

8 June 2009