Decision No:  C38/09-10(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Application by the claimant for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 8 December 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.	The decision of the appeal tribunal dated 8 December 2008 is in error of law. The error of law identified will be explained in more detail below.

4.	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. 

5.	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. 

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

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. 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

8.	On 19 May 2008, a decision-maker of the Department decided to supersede an earlier decision of the Department, dated 5 August 2001.

9.	The earlier decision of the Department had awarded an entitlement to the higher rate of the mobility component and the middle rate of the care component of DLA from and including 25 April 2001.

10.	The effect of the supersession decision of 19 May 2008 was to reduce the appellant’s entitlement to the middle rate of the care component of DLA from and including 19 May 2008.

11.	On 28 May 2008, the decision date 19 May 2008 was reconsidered but was not changed. 

12.	On 9 June 2008 a letter of appeal was received in the Department. 

13.	An appeal tribunal hearing took place on 8 December 2008. The appellant was present at the oral hearing of the appeal and was represented. 

14.	The appeal tribunal disallowed the appeal and did not confirm the decision dated 19 May 2008. Instead it substituted its own decision to the effect that the appellant had no entitlement to either the care or the mobility component of DLA from and including 19 May 2008.

15.	On 13 February 2008 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.

16.	On 20 February 2009, the application for leave to appeal was refused by the legally qualified panel member of the appeal tribunal.

	Proceedings before the Social Security Commissioner

17.	On 5 March 2009, 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.

18.	On 25 March 2009 observations were sought from Decision Making Services (DMS) and these were received on 24 April 2009. DMS opposed the application on the grounds cited by the appellant’s representative but supported the application on a further identified ground. 

19.	Observations were shared with the appellant and his representative on 6 May 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 submissions of the parties

22.	In the application for leave to appeal to the Social Security Commissioner, the appellant has submitted that the decision of the appeal tribunal was in error of law as:

(i)	the appellant’s mental and physical conditions were grossly represented by the examining medical practitioner’s (EMP) report and by the appeal tribunal;

(ii)	the report of the EMP ignored aspects of his medical conditions;

(iii)	although the appellant made reference on several occasions to several mental and physical conditions during the oral hearing of the appeal, there is no reference to these in the statement of reasons for the appeal tribunal’s decision.

23.	In the observations on the application for leave to appeal to the Social Security Commissioner, DMS has opposed the application on the basis of the grounds cited by the appellant, but has supported the application on a further identified ground. 

	The error of law in the instant case

24.	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.

25.	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.’

26.	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.

27.	In C12/08-09(DLA), I stated the following, at paragraph 52:

‘The 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.’

28.	The decision under appeal to the appeal tribunal, in the present case, was a decision dated 19 May 2008, in which a decision-maker decided to supersede the earlier decision of the Department dated 5 August 2001 and, further, decided that the appellant’s entitlement to DLA should be reduced to entitlement to the middle rate of the care component of that benefit from and including 19 May 2008.

29.	Accordingly, the first task of the appeal tribunal was to determine whether the decision-maker, on 19 May 2008, had grounds to supersede the earlier decision of the Department, dated 5 August 2001.

30.	If the appeal tribunal determined that the decision-maker, on 19 May 2008, did not have grounds to supersede the decision dated 5 August 2001, then that latter decision would continue to have effect.

31.	If the appeal tribunal determined that the decision-maker, on 19 May 2008, did have grounds to supersede the decision dated 5 August 2001, then the appeal tribunal could have gone on to consider entitlement to benefit, in light of the substantive rules for entitlement to DLA.

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

33.	In the written submissions prepared for the appeal tribunal hearing the appeals writer dealt with the supersession in some considerable detail.  Firstly, 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 19 May 2008, did have grounds to supersede the decision dated 5 August 2001.  The appeals writer submitted that the available evidence suggested that there had been an improvement in the appellant’s walking ability sufficient to amount to a relevant change of circumstances, since the decision dated 5 August 2001 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.

34.	Secondly, the appeals writer submits that there was also sufficient evidence for the decision-maker, on 19 May 2008, to further decide that the appellant did not satisfy the conditions of entitlement to the mobility component of DLA from and including 19 May 2008. The appeals writer has also noted that the appellant’s entitlement to the middle rate of the care component of DLA was not, at that stage, being disputed by the Department

35.	Thirdly, at page 10 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’).

36.	What does the appeal submission tell the appellant?  It informs him of the legal and evidential basis on which the Department has decided that he no longer satisfies the conditions of entitlement to the mobility component of DLA.  It informs him 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 he is no longer entitled to the mobility component of DLA. It also informs the appellant that the Department has confirmed his entitlement to the middle rate of the care component of DLA, and that that entitlement was not at issue, at that stage.  

37.	How did the appeal tribunal deal with the supersession issue? In the statement of reasons for the appeal tribunal’s decision it is noted that:

‘There was a history of awards of Disability Living Allowance – both components. The Department superseded a previous award of middle care and high mobility (from 25.04.2001) on 19.05.2008 and awarded middle care only from that date. The Appellant sought reinstatement of high mobility …’

38.	It is clear from this statement that the appeal tribunal was aware that the decision under appeal was a supersession decision. Thereafter, however, the appeal tribunal misdirected itself as to the decision-making process and its duties with respect to that decision-making process.

39.	The statement of reasons continues:

‘MOBILITY

Considering all the available evidence, we accepted some limitations but decided the Appellant was not virtually unable to walk and preferred the Incapacity and Disability Living Allowance assessments to the Appellant in this respect. 

We found the Appellant to be an independent man, able to drive to local villages, help with Hospital/Election Campaign and go by foot up town. We believed there was insufficient evidence for a low mobility award.’  

	The statement of reasons finishes with the following paragraph:

‘In conclusion the Tribunal decided that the Department had, on medical evidence, grounds to supersede the previous award and that, on appeal, the Tribunal had grounds, on balance of all the available evidence, to remove the middle rate care award from 19.05.2008 and disallow the appeal in respect of mobility component.’

40.	In the observations on the application for leave to appeal to the Social Security Commissioner, DMS has submitted the following in respect of the statement in the final paragraph of the statement of reasons 

‘Whilst it did not specifically state that the grounds for supersession were a relevant change of circumstances, I would submit that it is evident from the above extract that these are in fact what the grounds for supersession were and this would have been sufficient to meet the requirements of paragraph 52 of C12/08-09(DLA).’

41.	I accept that the appeal tribunal was aware that the decision under appeal was a supersession decision. Having recognised that issue, however, the appeal tribunal was under a specific duty to examine the decision-making process giving rise to the supersession decision. More specifically, 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.

42.	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.

43.	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.

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

45.	The difficulties with how the appeal tribunal dealt with those duties in the instant case are as follows. 

46.	The appeals writer submitted that the available evidence suggested that there had been an improvement in the appellant’s walking ability 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. Additionally, the appeals writer submitted that there was also sufficient evidence for the decision-maker, on 19 May 2008, to further decide that the appellant did not satisfy the conditions of entitlement to the mobility component of DLA from and including 19 May 2008. Finally, the appeals writer had set out the legal basis upon which entitlement to DLA was removed from a specific date (‘the effective date of supersession’).

47.	By contrast, the appeal tribunal’s consideration of the mobility component, both in the decision notice and in the statement of reasons amounts to a determination 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.

48.	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, particularly with respect to the mobility component of DLA; and
(ii)	the effective date from which any new decision should take effect.

49.	The decision notice and statement of reasons, with respect to the mobility component of DLA, collectively read as if they had been prepared in connection with a decision of a new or renewal claim.

50.	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 appeal tribunal’s approach to the removal of the existing award

51.	In the record of proceedings for the appeal tribunal hearing, the following is noted:

‘”Warning” issued to Appellant and Representative.

Appellant, Representative and Presenting Officer left room to consider the warning.’

	Further, the following is recorded:

‘Representative

Appellant seen by new Consultant in November 2008. Wants to proceed. (Representative was against that).’

52.	In the statement of reasons for the appeal tribunal’s decision, the following is noted:

‘The Appellant and his Representative were, at outset, given the required ‘warning’ as to the powers to vary and the Appellant decided, after reflection with his Representative, that he wished to proceed and understood his care award could be affected.’

53.	In C15/08-09(DLA), I gave detailed guidance to appeal tribunals on the approach to be taken in cases where the decision under appeal incorporates an existing award. At paragraph 77 I stated:

‘Accordingly, in my view, it is safest and best practice for an appeal tribunal in each case where the decision under appeal incorporates an existing award:

(i)	to explain to the appellant that the appeal tribunal is under a duty to consider all of the evidence which is before it, and to ensure that the decision under appeal to it is correct;

(ii)	to outline to the appellant the powers available to the appeal tribunal which are:

•	to make a decision which is more favourable to the appellant;
•	to confirm the decision of the Department with respect to the existing award; and
•	to make a decision which is less favourable to the appellant.

(iii)	to outline to the appellant, the options available to him, which are:

•	to continue with the appeal tribunal hearing;
•	to withdraw the appeal at any stage prior to its determination;
•	to seek a brief adjournment to consider the implications of what has been described, or a longer adjournment to seek further legal advice in light of that description.

(iv)	to ensure that all explanations are provided in appropriate terms and language, and to be satisfied that the appellant understands the relevance and context of the powers of the appeal tribunal and the options available to him;

(v)	to ensure that a record of the explanations given by the appeal tribunal, in respect of its powers and the appellant’s options is entered into the record of proceedings for the appeal tribunal’s hearing;

(vi)	to ensure that where a statement of reasons for the appeal tribunal’s decision is requested and given that the reasons for the exercise of the discretion to make a decision which is less favourable are set out;

(vii)	to ensure that in a case determined on the papers alone and, where the appeal tribunal is considering exercising its judicial discretion to make a decision which is less favourable to the appellant, that it is satisfied that an appellant has had sufficient notice of the appeal tribunal’s intention to consider making a decision which is less favourable, which will be likely to involve adjourning the appeal, and providing an appropriate description of the appeal tribunal’s powers and the appellant’s options in light of those powers.’

54.	Earlier, at paragraphs 65 to 66, I had stated:

‘65.	Where I do agree unequivocally with Commissioner Rowland is that the exercise of the judicial discretion to make a decision less favourable to the appellant and, with that discretion, the requirement to ensure that the appellant has had sufficient notice of the appeal tribunal’s intention to consider making a decision which is less favourable, in order to enable the appellant properly to prepare his case, leaves the appeal tribunal in a difficult position.  In this regard, I am of the view that it is regrettable that the requirement to ensure that the appellant has sufficient notice of the potential for the making of a less favourable award has been portrayed as the issue of a ‘warning’.  Warning is a negative noun.  It suggests risk and invokes a defensive response.

66.	Further, the practice appears to have emerged of the giving of a warning at the outset of an appeal tribunal hearing, when the appeal tribunal has formed the view that it may exercise its discretion to make an award which is less favourable to the appellant.  Where the appellant is unrepresented the information that an existing award, which he or she may have thought could not be challenged, may be diminished or removed by the appeal tribunal may come as a considerable surprise.  This is despite the fact that the appeal submissions prepared by the Department, and to which the appellant has had access in advance, as in the instant case, makes reference to that possibility.  As Commissioner Rowland has observed, there is a considerable danger, when using the language of warning, at the outset of an appeal tribunal hearing, of giving the impression of having prejudged the case.’

55.	I would repeat that I regard it as inappropriate to couch consideration of the judicial discretion to consider the validity of an existing award in terms of warnings. Appeal tribunals do not need to warn appellants. The duty is to enable the appellant to make an appropriate decision with respect to the existing award in light of proper and well-outlined advice and guidance concerning the appeal tribunal’s powers and the appellant’s options in light of those powers.

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

56.	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

57.	The decision of the appeal tribunal dated 15 August 2008 is in error of law.

58.	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. 

59.	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.

60.	I direct that the parties to the proceedings and the newly constituted appeal tribunal take into account the following:

61.	The decision under appeal is a decision of the Department, dated 19 May 2008, in which a decision-maker of the Department decided to supersede an earlier decision of the Department, dated 5 August 2001.

62.	The earlier decision of the Department had awarded an entitlement to the higher rate of the mobility component and the middle rate of the care component of DLA from and including 25 April 2001.

63.	The effect of the supersession decision of 19 May 2008 was to reduce the appellant’s entitlement to the middle rate of the care component of DLA from and including 19 May 2008.

64.	The appellant, and his representative, will wish to consider what was said at paragraph 77 of C15/08-09(DLA) concerning the powers available to the appeal tribunal and the appellant’s options in relation to those powers.

65.	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.

66.	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):  Kenneth Mullan

Commissioner

17 November 2009