Decision No:  C43/09-10(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 the entitlement of the appointee’s son 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 4 February 2008 a decision-maker of the Department decided that the appellant was not entitled to DLA from and including 2 January 2008, on a renewal claim.  Following receipt of a letter seeking reconsideration of the decision, and additional information, the decision dated 4 February 2008 was looked at again on 30 June 2008 but was not changed.  Further evidence to support the claim to DLA was subsequently received in the Department on 11 June 2008.  Finally, on 15 September 2008, a letter of appeal against the decision dated 4 February 2008 was received in the Department.

9.	The substantive oral hearing of the appeal took place on 8 December 2008.  The record of proceedings for the appeal tribunal hearing appears to note that the ‘appellant’ is present but I am certain that this is a reference to the presence of the appointee, the mother of the child claimant.  A Departmental presenting officer is also noted as having been present.

10.	The appeal tribunal disallowed the appeal and confirmed the decision dated 4 February 2008 to the effect that the appellant was not entitled to DLA from and including 2 January 2008.  Following receipt, on 24 February 2009, of an application for leave to appeal to the Social Security Commissioner, the application was refused by the legally qualified panel member, on 27 February 2009.

11.	On 27 March 2009 a further application for leave to appeal to the Social Security Commissioner was received in the Office of the Social Security Commissioners.

12.	On 30 April 2009 observations were sought from Decision Making Services (DMS) and these were received on 27 May 2009.  DMS supported the application for leave to appeal to the Social Security Commissioner, on the ground cited by the appointee, and on a further identified ground.

	Errors of law

13.	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.

14.	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

15.	In the record of proceedings for the appeal tribunal hearing, in the section headed ‘Documents Considered’, the following is recorded:

‘Tribunal submissions, General Practitioner notes and records and letter from Dr Deehan 08.12.2008’

16.	In the appeal tribunal submission, at Tab No 7, is a copy of a Factual Report, dated by Dr Deehan as having been signed on 11 July 2008.

17.	In the papers which are before me, there is a copy of the other letter from Dr Deehan, dated 8 December 2008, which is referred to in the record of proceedings.  There is no indication as to the stimulus or source for this letter but I am presuming that it was prepared in connection with the appeal tribunal hearing, which took place on the same day as the date on which the report is dated as having been prepared.

18.	The statement of reasons for the appeal tribunal’s decision deals with the appeal tribunal’s conclusions and findings in respect of both the care and the mobility components of DLA.  The statement of reasons states:

‘… The Tribunal had the benefit of General Practitioner notes and records and a letter from Dr Deehan 08.12.2008 as well as submissions and evidence of (the claimant’s mother).

… Regarding his asthma, his mother indicated (the claimant) had an attack roughly every 6 weeks – see Part 6 Renewal Form.  Clearly winter was a more difficult time.  An Asthma Clinic on 12.05.2008 said there had been no acute exacerbations (since the last clinic) and no increased use of inhalers.  Also recorded ‘no nocturnal cough’ and ‘no exercise intolerance’ (the latter roughly in keeping with the school report of 301.01.2008).

A further Asthma Clinic of 06.10.2008 described the asthma as ‘well controlled’ on medications, the last reported wheeze being 6 months previous. Again ‘no nocturnal cough or exercise induced symptoms’ …

In respect of care, we were aware of previous awards and did accept that, on occasions, (the claimant) might require some more attention than other children.  However we decided this would not be the case for much of the time and, as a result, we decided the child’s requirements were not substantially in excess of a normal 7 year old.  We felt the medical evidence did not reflect the limitations set out by the Appointee, either in terms of severity or in terms of times/periods suffered.’

19.	As was noted above, the medical evidence which was before the appeal tribunal included a Factual Report from Dr Deehan, dated as signed on 11 July 2008, and a copy of a letter from Dr Deehan, dated 8 December 2009.

20.	In the Factual Report, Dr Deehan is asked to provide answers to various questions.  The third question is headed ‘Day to day variation in the condition(s) (if any) including frequency and duration of exacerbations’.  The reply is as follows:

‘This child has moderately severe asthma which is worse during the winter months.  He needs constant supervision and support to ensure he takes his inhalers.  He attends the Practice Asthma Clinic for monitoring and review of treatment.’

21.	The sixth questions is headed ‘Please give details, IF KNOWN, of the effects of the disabling condition(s) on day to day life’.  Thereafter, three separate categories for response are given.  The first of these is ‘Self care’.  The reply recorded by Dr Deehan is as follows:

‘Needs supervision with medication and self-care.’

22.	The Factual Report form asks the respondent to provide additional information on the severity of the asthma and its response to treatment.  Included in the answers provided by Dr Deehan is:

‘(The claimant) needs continuous supervision, support and assistance with monitoring of his breathing, monitoring inhaler technique, regular administration of inhalers, medication, creams etc.

(The claimant) tends to be overweight.  He requires careful attention to diet and monitoring of his eating habits and encouragement to take regular exercise, consistent with limitations of his asthma.

Owing to his young age – ongoing support needed.’

23.	In the further letter from Dr Deehan, dated 8 December 2008, Dr Deehan states:

‘He requires the administration of inhalers regularly.  He requires constant supervision to ensure that he takes his inhalers on a regular basis and to ensure that his inhaler technique is adequate to deliver the inhaled drug optimally.  He requires constant monitoring regarding breathlessness, wheeze and cough.  He may require the administration of inhalers during the night.  He also requires constant supervision to detect at an early stage onset of respiratory infections which may exacerbate his asthma and to give appropriate treatment or seek medical assessment or other medical treatments as appropriate.  His Hay Fever and Allergic Rhinitis also require the regular administration of medication especially in the summer months.  He requires the regular application of creams for his Eczema and the addition of Emollients to his bath.

Recently (the claimant) has been gaining weight.  Mum has to give careful attention to his diet and to ensure that he gets adequate physical exercise.

In summary, (the claimant) has a number of medical conditions, which require continuous monitoring and regular administration of medication.  Given his history of atopy it is likely that (the claimant’s) conditions will persist.’

24.	Apart from an acknowledgement that the letter dated 8 December 2008 was before the appeal tribunal, there is no further reference, in the statement of reasons for the appeal tribunal’s decision, to the contents of the letter and no reference whatsoever to the Factual Report, dated 11 July 2008.

25.	In C16/08-09(DLA), I indicated, at paragraphs 54 to 55:

‘54.	Nonetheless, 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.

55.	In R2/04(DLA) a Tribunal of Commissioners, stated, at paragraph 22(5):

‘ … there will be cases where the medical evidence before a particular tribunal will be unsatisfactory or deficient in an important respect.  It will often be open to the tribunal hearing such a case to reject the medical evidence for that reason.  Indeed, it will sometimes be its duty to do so.  However, and in either case, the tribunal cannot simply ignore medical evidence which is not obviously irrelevant.  It must acknowledge its existence and explain its reasons for rejecting it, even if, as will often be appropriate, such reasons are fairly short.  We repeat, the decision whether a person suffers from a particular medical condition is a matter for the tribunal.  That body must have regard to the whole of the evidence, including the medical evidence.  Where it rejects medical evidence it must, unless the reasons are otherwise apparent, explain why it does so.  Anything less is likely to result in an appeal being brought on the grounds that the tribunal has not given adequate reasons or that its decision is against the weight of the evidence.’

26.	In the instant case, and as was noted above, in its statement of reasons the appeal tribunal has made no substantive reference to the medical evidence available to it, in the form of the Factual Report, dated 11 July 2008, and in the form of the further letter dated 8 December 2008.  The statement of reasons gives no indication as to how that medical evidence was assessed and whether or not it was accepted or rejected and accordingly, the reasons are inadequate.  Further, the appeal tribunal’s conclusions that it accepted that on occasions the appellant might require more attention than other children; that the requirement for additional attention would ‘not be the case for much of the time’ [my emphasis]; and that the ‘medical evidence did not reflect the limitations set out by the Appointee’ are clearly at odds with the statements from the general practitioner  concerning the requirement for ‘constant’, ‘continuous’ or ‘regular’ supervision or attention.  The appeal tribunal has given no indication as to why this further evidence from the general practitioner was rejected.

27.	Having found that the appeal tribunal was under a duty to consider the relevant evidence, and having failed to indicate that it did consider that evidence, 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.

28.	The Department, in its written observations on the application for leave to appeal to the Social Security Commissioner, has submitted that the decision of the appeal tribunal was also in error of law in that while the appeal tribunal had focused on certain of the appellant’s medical conditions, it failed to address additional medical conditions, namely allergic rhinitis, hay fever, and weight problems, which had been mentioned by the general practitioner in both the Factual Report and the further letter.  I agree with that submission from the Department.

	Disposal

29.	The decision of the appeal tribunal dated 8 December 2008 is in error of law.

30.	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.

31.	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.

32.	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 it will be for the appellant, and any representative of the appellant, to adduce any evidence which she considers relevant to the appeal tribunal.

33.	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

17 November 2009