Decision No:  C51/09-10(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 13 March 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 13 March 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 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

8.	On 4 October 2007, a decision-maker of the Department decided that the appellant was not entitled to DLA from and including 16 April 2007.  An appeal against the decision dated 4 October 2007 was received in the Department on 30 October 2007.

9.	An appeal tribunal hearing against the decision dated 4 October 2007 took place on 13 March 2008.  The appellant was present and was accompanied by his wife.  The appeal tribunal disallowed the appeal, and confirmed the decision dated 4 October 2007.

10.	On 4 August 2008 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS).  On 5 September 2008, the application for leave to appeal was refused by the legally qualified panel member.

	Proceedings before the Social Security Commissioner

11.	On 7 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 (OSSC).  The appellant was by now represented by the Law Centre (Northern Ireland).

12.	On 2 December 2008, the appellant’s representative was asked to provide reasons for the lateness of the application to TAS.  On 16 December 2009 a reply in respect to this aspect of the application was received in OSSC.  On 2 February 2009 I directed that the application should proceed on the basis that it was made to TAS within the specified time.

13.	On 3 February 2009, observations were sought from Decision Making Services (DMS) and these were received on 2 March 2009.  DMS supported the application on the grounds cited by the appellant.

14.	Observations were shared with the appellant on 10 March 2009.  On 2 April 2009, a further submission was received in OSSC from the appellant’s representative.

	Errors of law

15.	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.

16.	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

17.	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 the following grounds:

(i)	the appeal tribunal did not properly weigh all of the evidence which was before it; and

(ii)	the decision of the appeal tribunal was based on an assumption that if the appellant had care needs then his general practitioner (GP) would have known about them.  The appeal tribunal did have evidence before it which confirmed that the appellant’s GP was aware of his limitations.

18.	In the written observations on the application for leave to appeal, DMS supported the application on both grounds cited by the appellant’s representative.

	The error of law in the instant case

19.	In the record of proceedings for the appeal tribunal hearing, it is noted that the appeal tribunal had before it:

‘Department submission, scheduled documents, General Practitioner records (they did not wish to see these) and his appointment letter for the pain clinic for 3.3.08’

20.	Within the Departmental appeal submission were two pieces of evidence from the appellant’s GP.  The first of these, at Tab No. 3 was a factual report, signed and dated by the GP on 21 May 2007.  The second of these was a letter from a second GP dated 12 December 2007.

21.	The statement of reasons for the appeal tribunal’s decision is divided into separate reasons for the decision with respect to the care and mobility components.  In turn, the reasons for the decision in respect of the mobility component are sub-divided into reasons for the higher and lower rates of the component.

22.	In respect of its decision with respect to the care component, one of the specified reasons is as follows:

‘The General Practitioner report of 21.5.07 indicates the doctor was unaware of his care needs which is significant because we feel anyone with genuine care needs can be expected to report these to his General Practitioner in order to obtain eg referral to the Occupational Therapist service.’

23.	In the factual report, dated 21 May 2007, the GP, at question 6, is asked to provide details, if known, of the effects of the disabling condition(s) on day to day life.  Thereafter question 6 is sub-divided into (a), (b) and (c); 6(a) seeks details with respect to ‘self-care’ described as ‘for example, washing, dressing, feeding, using the toilet, continence, and ability to rise from the chair.  The answer to question 6(a), provided by the GP, in the report dated 21 May 2007 is ‘not known’.

24.	To that extent, therefore, the conclusions arrived at by the appeal tribunal, in the reason noted above, could be said to be sustainable.  There is no mention, however, in the statement of reasons for the appeal tribunal’s decision, of the letter dated 12 December 2007 from a second GP. In this letter, the GP notes that:

‘… His mobility appears to be significantly reduced and he relies on taxi’s [sic] to get around, even for distances of less than 100 metres.  His wife also reports difficulties with managing activities of daily living such as dressing, bathing and meal preparation unassisted due to pain in his hands.  He is being referred to a hospital based pain clinic/support group.’

25.	Accordingly, there was evidence before the appeal tribunal that limitations, leading to a requirement with respect to attention in connection with bodily functions and, possibly, leading a further referral to a specialist clinic had, in fact, been reported to the GP, contrary to the conclusions arrived at by the appeal tribunal.

26.	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.”

27.	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.’

28.	In its statement of reasons the appeal tribunal has made no reference to the medical evidence provided by the appellant, in the form of the letter from his GP, dated 12 December 2007, and in which the GP refers to reports of limitation in functional ability and a further referral.  The statement of reasons gives no indication as to how that medical evidence was assessed and whether or not it was accepted or rejected.  Further, the reasons cited by the appeal tribunal in support of its decision with respect to the care component cannot stand when viewed against this additional evidence not considered by the appeal tribunal.

29.	Having found that the appeal tribunal was under a duty to explain, in its statement of reasons, what it made of evidence which was pertinent to the issues arising in the appeal, I find that the decision of the appeal tribunal is in error of law.

	Disposal

30.	The decision of the appeal tribunal dated 13 March 2008 is in error of law.  The error of law identified will be explained in more detail below.

31.	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.

32.	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.

33.	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 4 January 2007, which decided that the applicant was not entitled to DLA from and including 16 April 2007;

(ii)	the Department is directed to provide details of any subsequent claims to DLA and the outcome of any such claims to the appeal tribunal to which the appeal is being referred.  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);

(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.

	Postscript

34.	The statement of reasons for the appeal tribunal’s decision was issued to the appellant on 30 June 2008.  The application for leave to appeal against the decision of the appeal tribunal is date-stamped as having been received in TAS on 4 August 2008.  If that was indeed the case, the application would have been received within TAS outside the specified time, namely the period of one month commencing on the date the applicant was sent a written statement of the reasons for the decision of the appeal tribunal.

35.	Having made enquiries from the appellant’s representative concerning the reasons for the lateness of the application to TAS, I have been provided with satisfactory evidence that the appellant, on the instructions of his representative, had hand-delivered a copy of his application for leave to appeal to the offices of TAS, on 29 July 2008.  Further, I have been provided with satisfactory evidence that the appellant was provided with a hand-written acknowledgement of receipt of his application, from an officer within TAS, dated on 29 July 2008.  Accordingly, I was content to direct that the application to the Social Security Commissioner should proceed on the basis that it was made to TAS within the specified time.

36.	Nonetheless, it is essential that those responsible for the forwarding to OSSC of all of the documentation relating to an application for leave to leave to appeal to the Social Security Commissioner should alert OSSC to any unusual circumstances relating to that application, such as those which arose in the instant case.

(signed)  K Mullan

Commissioner

17 December 2009