Decision No:  C39/09-10(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 15 August 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 15 August 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 10 July 2007 a decision-maker of the Department decided that the appellant was entitled to the middle rate of the care component of DLA from 23 October 2007 to 22 October 2010.

9.	Following a request to that effect, the decision dated 10 July 2007 was reconsidered on 8 August 2007 but was not changed.

10.	On 12 February 2008 an appeal against the decision dated 10 July 2007 was received in the Department.

11.	The appeal was first listed for oral hearing on 9 July 2008.  The record of proceedings for that oral hearing records that the appeal was adjourned.  The recorded reason for the adjournment was:

‘On review of notes risk that benefit might be withdrawn so (the claimant) may wish to attend, or to obtain representation, or alternatively withdraw her appeal.’

12.	A direction was issued by the legally qualified panel member (LQPM) of the appeal tribunal to the following effect:

	‘Re-list as soon as possible to allow (the claimant) to consider her position.’

13.	The substantive appeal tribunal hearing took place on 15 August 2008.  The appellant was not in attendance.  The appeal tribunal, in its reasons for its decision recorded the following:

‘The appellant elected for an oral hearing.  She has not attended.  A submission dated the 6th August 2008 had been received from the Citizens Advice Bureau indicating the appellant was aware of the hearing.  The submission stated she was unable to attend because of health problems but did not seek an adjournment.  The appeal had been listed on a previous occasion, namely the 9th July 2008 as an oral hearing.  Again, the appellant did not attend.  The Tribunal on that occasion decided to adjourn and pointed out that the notes had been reviewed and indicated there was the risk that her existing award might be removed.  Consequently, she was advised to consider her position.  The Tribunal indicated she may wish to attend or to obtain representation or alternatively to withdraw her appeal.  It seemed to us that the appellant had been adequately warned about the risks of appealing.  The appellant was aware that the hearing was on and had chosen not to attend.  There was no attendance on her behalf and there was the application to adjourn.  In the circumstance, we decided to proceed with the hearing.’

	I am assuming that the second part of the penultimate sentence of that passage is incorrect and should read ‘there was no application to adjourn.’

14.	The appeal tribunal disallowed the appeal and did not confirm the decision of the Department dated 10 July 2007.  Instead it substituted its own decision to the effect that the appellant did not satisfy the conditions of entitlement to either the care or mobility components of DLA from and including 23 October 2007.

15.	On 16 January 2009 an application for leave to appeal against the decision of the appeal tribunal was received in the Appeals Service.

16.	On 2 February 2009 the application for leave to appeal was refused by the LQPM.

Proceedings before the Social Security Commissioner

17.	On 6 April 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 from the appellant’s representative.

18.	On 19 May 2009 observations were sought from Decision Making Services (DMS) and these were received on 12 June 2009.  DMS supported the application for leave to appeal on one of the grounds cited by the appellant’s representative but opposed the application on the remaining grounds.  Additionally, DMS submitted that the decision of the appeal tribunal was in error of law on the basis on which it considered entitlement to the lower rate of the mobility component of DLA.

19.	Observations were shared with the appellant on 16 June 2009.

20.	On 15 July 2009, a further submission in response to the observations from DMS was received from the appellant’s representative.  The representative welcomed the concessions made by DMS on two of the original grounds in the application for leave to appeal, but continued to submit that the decision of the appeal tribunal was also in error of law on the additional two grounds.

21.	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.

Errors of law

22.	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

23.	In the original application for leave to appeal to the Social Security Commissioner, the appellant’s representative submitted that the decision of the appeal tribunal was in error of law as:

(i)	the reasons for the decision of the appeal tribunal were inadequate as those reasons failed to indicate that the appeal tribunal had taken into account evidence which had been provided to the appeal tribunal on the day of the oral hearing of the appeal;

(ii)	the appeal tribunal failed to explain, in the reasons for the appeal tribunal’s decision, why it rejected evidence from the appellant concerning her ability to prepare a cooked main meal for herself;

(iii)	the appeal tribunal breached the rules of natural justice, by removing an existing award of entitlement to DLA, without giving the appellant an opportunity to make representations with respect to this;

(iv)	the appeal tribunal breached the rules of natural justice by relying on assumptions, such as the appellant’s ability to go on holiday.

24.	As was noted above, in its observations on the application for leave to appeal to the Social Security Commissioner, DMS supported the application on  one of the grounds cited by the appellant’s representative but opposed the application on the remaining grounds.  Additionally, DMS submitted that the decision of the appeal tribunal was in error of law on the basis on which it considered entitlement to the lower rate of the mobility component of DLA.

The error of law in the instant case

25.	Regulation 55(1) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, provides that:

‘55(1) A record of the proceedings at an oral hearing, which is sufficient to indicate the evidence taken, shall be made by the chairman or, in the case of an appeal tribunal which has only one member, by that member, in such medium as he may determine.’
 
26.	Regulation 55 is not prescriptive about the format of the record of proceedings for the appeal tribunal hearing.  Nonetheless, the President of Appeal Tribunals for Northern Ireland has recommended the use of the template form for the purpose of making of a record of proceedings for use in each case.  Section 1 of the form is headed ‘Documents Considered’ and in this section, one would expect the chairman to note, in a summary format, the documentation which was before the appeal tribunal, including the documentation which was made available to the appeal tribunal in advance of the hearing, and any documentation which was made available to the appeal tribunal on the day of the hearing itself.  The ‘Documents Considered’ section serves as a useful ‘aide-memoir’ to the chairman of the appeal tribunal as to the documentary evidence or submissions which were before the appeal tribunal.  That aide-memoir would be very useful if and when the chairman is asked to prepare a statement of reasons for the appeal tribunal’s decision.

27.	In the present case, the ‘Documents Considered’ section of the record of proceedings is blank.  The statement of reasons for the appeal tribunal’s decision makes reference, however, to certain documentation, including the appellant’s general practitioner (GP) records, which were before the appeal tribunal.  I do not understand, therefore, why a separate note of the documentation was not made in the ‘Documents Considered’ section.

28.	In the application for leave to appeal to the Social Security Commissioner, the appellant’s representative submits that several pieces of documentation were submitted to the appeal tribunal including a letter from the appellant’s GP, a written submission and a letter from the ‘Community Addictions’ team.  The appellant’s representative submits that there is no reference to the letter from the ‘Community Addictions’ team, in the record of proceedings or in the statement of reasons and, more particularly, no indication of whether the appeal tribunal accepted or rejected this evidence.  The appellant’s representative submits that, accordingly, the reasons for the appeal tribunal’s decision are inadequate.  This is a submission which is supported by DMS.

29.	In C16/08-09(DLA), I said the following, at paragraph 54:

‘…there is a clear duty on appeal tribunals to undertake a rigorous assessment of all of 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 arising in the appeal.”

30.	In the instant case, I am presuming that the letter from the ‘Community Addictions’ team was submitted to the appeal tribunal on the basis of its relevance to the issues arising in the appeal or on the basis that it provided supportive evidence on the other submissions concerning the appellant’s potential entitlement to DLA.  The appeal tribunal may have considered the evidence contained in the letter from the ‘Community Addictions’ team to have no relevance to the issues arising in the appeal, or did not support the submissions in connection with potential entitlement to DLA.  Nonetheless, the appeal tribunal was under a duty to indicate that it had considered the documentation, and indicate what it made of that documentation in relation to its determination of the issues arising in the appeal.

31.	Having found that the appeal tribunal was under a duty to consider the relevant documentation, and having failed to consider it, 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 other grounds for seeking leave to appeal

32.	In the application for leave to appeal to the Social Security Commissioner, the appellant’s representative submitted that the decision of the appeal tribunal was in error of law on three other grounds:

(i)	the appeal tribunal failed to explain, in the reasons for the appeal tribunal’s decision, why it rejected evidence from the appellant concerning her ability to prepare a cooked main meal for herself;

(ii)	the appeal tribunal breached the rules of natural justice, by removing an existing award of entitlement to DLA, without giving the appellant an opportunity to make representations with respect to this;

(iii)	the appeal tribunal breached the rules of natural justice by relying on assumptions, such as the appellant’s ability to go on holiday.

	I would not hold that the decision of the appeal tribunal is in error of law on any of these additional grounds.

33.	In connection with the appeal tribunal’s determination that the appellant did not satisfy the conditions of entitlement to the lowest rate of the care component of DLA, on the basis of an inability to prepare a cooked main meal for herself, I would note that in Quinn v Department for Social Development ([2004] NICA 22), the Court of Appeal emphasised that assessment of evidence and fact-finding role is one for the appeal tribunal.  At paragraph 29, the Court stated:

‘It is clear that the Tribunal considered Dr Manley’s report since they refer to it in their findings and describe it as being less than helpful.  The challenge to the Tribunal’s attitude to the report cannot proceed on the basis that they ignored it; rather it must be either that they misconstrued it or they failed to give it sufficient weight.  As to the latter of these two possibilities it is of course to be remembered that a view of the facts reached by a tribunal can only be interfered with by the Court of Appeal in limited and well-defined circumstances.

Carswell LCJ described those circumstances in Chief Constable of the RUC v Sergeant A [2000] NI 261 at 273f as follows: -
 
“A tribunal is entitled to draw its own inferences and reach its own conclusions, and however profoundly the appellate court may disagree with its view of the facts it will not upset its conclusions unless— 

(a) there is no or no sufficient evidence to found them, which may occur when the inference or conclusion is based not on any facts but on speculation by the tribunal (Fire Brigades Union v Fraser [1998] IRLR 697 at 699, per Lord Sutherland); or

(b) the primary facts do not justify the inference or conclusion drawn but lead irresistibly to the opposite conclusion, so that the conclusion reached may be regarded as perverse: Edwards (Inspector of Taxes) v Bairstow [1956] AC 14, per Viscount Simonds at 29 and Lord Radcliffe at 36.” 

34.	At paragraph 4 of R(DLA) 3/04, Mrs Commissioner Brown had made similar remarks:

‘I should state at the outset that the weight to be given to any evidence is completely a matter for the Tribunal.  The weight to be given to an item of evidence is a matter of fact.  That means that I can disturb it only if that conclusion as to weight is one which no reasonable Tribunal could have reached.  Having examined Dr M...’s report I do not consider that the Tribunal’s conclusions as to the weight to be given to it are such as no reasonable Tribunal could have reached.’

35.	The appeal tribunal, absent its consideration of the letter from the ‘Community Addictions’ team, undertook a rigorous assessment of the evidence which was before it, in connection with the ability to prepare a cooked main meal.  Read as a whole, the statement of reasons for the appeal tribunal’s decision provides a detailed explanation of the basis on which the appeal tribunal arrived at its conclusions on the issues before it.

36.	The appellant’s representative has also submitted that the appeal tribunal breached the rules of natural justice, by removing an existing award of entitlement to DLA, without giving the appellant an opportunity to make representations with respect to this.  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.’

37.	In the instant case, the appellant did not attend the oral hearing of the appeal.  A submission on her behalf, made by an experienced representative, indicated that she would be unable to attend due to health problems, but did not otherwise seek an adjournment.  The appeal had been adjourned on a previous occasion.  The terms of the adjournment for the adjourned hearing made references to the possibility of her existing award being removed, and of her options to seek representation or withdraw her appeal.

38.	In light of my comments at paragraph 65 of C15/08-09(DLA), I would regard some of the language used by the LQPM in the instant case as unhelpful.  He states, for example, that ‘It seemed to us that the appellant had been adequately warned about the risks of appealing.’  Nonetheless, I am satisfied that the requirements set out in C15/08-09(DLA), regarding the explanation of the powers available to the appeal tribunal, and the appellant’s options in light of those powers, have been met in this case.

39.	I have also considered the submission made the appellant’s representative that the appeal tribunal breached the rules of natural justice by relying on assumptions, such as the appellant’s ability to go on holiday.  I find no substance in this ground and reject it.  There was evidence in the appellant’s GP records that she had been on holiday in Spain.  The appeal tribunal assessed that evidence in light of all of the other evidence which was made available to it.  The appeal tribunal qualified its conclusions with respect to the holiday by noting that ‘We do not know the details about her holiday in Spain but …’  Thereafter the appeal tribunal was entitled to arrive at the conclusions which it did with respect to the ability to go on holiday being a contra-indication to claims with respect to an agoraphobic state.

The other error identified by DMS

40.	As was noted above, DMS submitted that the decision of the appeal tribunal was in error of law on the basis on which it considered entitlement to the lower rate of the mobility component of DLA.  More specifically, it was noted that:

‘In relation to a possible award of low rate mobility, in her renewal form (the claimant) stated at page 7 that because of manic depression and epilepsy she needs someone with her when she is out.  Page 2 of the Citizens Advice Bureau submission refers to agoraphobia impacting on her ability to go out, as does the letter from her GP dated 06 June 2008.  In its reasons the Tribunal appears to have focussed on agoraphobia in relation an award of the lower rate mobility component but has not made any explicit findings in relation to the possible effects of (the claimant’s) manic depression regarding her ability to walk outdoors without guidance or supervision.  For this reason I would agree that the Tribunal’s reasons are inadequate and as a consequence it has erred in law.’

41.	I am in agreement with the submission made by DMS with respect to the issue of potential entitlement to the lower rate of the mobility component of DLA.  The appeal tribunal did not give any consideration to the effect which the appellant’s problems with depression might have on her ability to walk out of doors on routes which were not familiar to her without guidance or supervision most of the time.  This is despite the appeal tribunal’s other references to medical evidence concerning long-standing mental health problems with a history of overdoses.

Disposal

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

43.	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.

44.	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.

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

(i)	the decision under appeal is a decision of the Department, dated 10 July 2007, which decided that the appellant was entitled to the middle rate of the care component of DLA from 23 October 2007 to 22 October 2010;

(ii)	the appellant, and her 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;

(iii)	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; and

(iv)	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