DH-v-Department for Social Development (DLA) [2010] NICom 104
Decision No:  C71/10-11(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 10 February 2009

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 10 February 2009 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 18 October 2007 a decision-maker of the Department decided that the applicant was not entitled to DLA from and including 30 April 2007.  An appeal against the decision dated 18 October 2007 was received in the Department on 15 November 2007.  An oral hearing of the appeal took place on 7 May 2008.  The appellant was present and was represented.  A Departmental presenting officer was present.  The appeal was adjourned in order to await the results of an orthopaedic review.

9.	The substantive appeal tribunal hearing took place on 10 February 2009.  The applicant was present and was represented.  There was no Departmental presenting officer present.  The appeal tribunal allowed the appeal substituted its own decision to the effect that the applicant was entitled to the lowest rate of the care component of DLA from and including 30 April 2007 and the higher rate of the mobility component of DLA from 30 April 2007 to 29 April 2008.

10.	On 8 April 2009 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.  On 22 June 2009, the application for leave to appeal was refused by the legally qualified panel member (LQPM).

	Proceedings before the Social Security Commissioner

11.	On 23 October 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.  On 30 March 2010 observations were sought from Decision Making Services (DMS) and these were received on 14 May 2010.  DMS opposed the application on one of the grounds submitted by the applicant but supported the application on two other grounds.  Observations were shared with the applicant on 21 May 2010.  On 26 May 2010 written observations in reply were received from the appellant’s representative.

	Errors of law

12.	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.

13.	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

	The submissions of the parties

14.	In the application for leave to appeal to the Social Security Commissioner, the appellant submitted that the decision of the appeal tribunal was in error of law on the basis that:

(i)	the record of proceedings (ROPs) for the appeal tribunal hearing and the statement of reasons (SORs) for the appeal tribunal’s decision are incomplete.  More particularly, there is no record of a conversation which took place at the end of the hearing between the appellant’s representative and the LQPM when an award of DLA was discussed;

(ii)	the restriction on the award of entitlement to the higher rate of the mobility component of DLA contravened the principles in the decision of the Commissioner in Great Britain in CDLA/2349/2008;

(iii)	the statement of reasons for the appeal tribunal’s decision with respect to entitlement to the care component of DLA is inadequate to explain why the appeal tribunal determined that the appellant was not entitled to the middle rate of the care component of DLA.  Further, the appeal tribunal made no findings in fact as to which care needs it accepted as being reasonably required.

15.	As was noted above, in written observations on the application for leave to appeal, DMS opposed the application on one of the grounds submitted by the applicant (ground (ii) above) but supported the application on two other grounds.

	The appeal tribunal’s decision with respect to the care component of DLA

16.	The decision notice for the appeal tribunal’s decision with respect to the care component of DLA reads as follows:

‘UNANIMOUS DECISION OF THE APPEAL TRIBUNAL

is that from and including 30/4/07 the appellant is entitled to the low rate of the care component.  This is on the basis she requires attention from another for a significant portion of the day in connection with her bodily functions.  The award is open ended.’

17.	In the SORs for the appeal tribunal’s decision with respect to the care component of DLA, there is reference, at paragraph 6, to the conclusions of the examining medical practitioner on the appellant’s care and/or supervision needs.  Thereafter, there is a single sentence as follows:

‘We found, given her general debility and the ongoing problem with her left hip she was entitled to an open-ended award of the low rate of the care component.’

18.	There are three main difficulties with the manner in which the appeal tribunal has addressed the care component of DLA.

19.	Firstly, at the adjourned oral hearing which took place on 7 May 2008, the appellant’s representative had made a submission that the appellant should have entitled to the middle rate of the care component of DLA, on the basis of attention in connection with her bodily functions at night or the lowest rate of the care component on the basis of attention in connection with her bodily functions for a significant portion of the day.  The one sentence quoted above is, in my view, wholly insufficient to indicate to the appellant, and her representative, the basis upon which it decided that the appellant should not have an entitlement to the middle rate of the care component.  The appeal tribunal has given no indication of its assessment of the available evidence, and made no findings in fact with respect to the care/attention needs which it accepted and those which it rejected.  Indeed, it is arguable that the single sentence is insufficient to indicate the basis upon which the appeal tribunal decided that the appellant should have an entitlement to the lowest rate of the care component.

20.	Secondly, the appeal tribunal decided that the award of the lowest rate of the care component should be for an indefinite period.  Of course, an appeal tribunal is entitled to make a decision that an award of entitlement to a component of DLA should be for an indefinite period.  As with any decision with respect to the restriction of an award of entitlement to a fixed period, (and in relation to which, see below) it is incumbent, in my view, on an appeal tribunal to give an explanation as to why it thought that an award should be for an indefinite period.  In the instant case, the appeal tribunal has stated that due to the claimant’s general debility and the ongoing problem with her hip, the appellant should be entitled to ‘an open-ended award of the low rate care component’.  It is not clear to me whether the conditions of entitlement to the lowest rate of the care component are satisfied because of the general debility and ongoing hip problem or that these factors are what merits an indefinite award.

21.	Thirdly, and as will be noted in more detail below, the appeal tribunal restricted its award of the higher rate of the mobility component of DLA because of its assessment of a period recovery and recuperation, following a hip replacement operation.  In making that restriction, the appeal tribunal appears to have concluded that the appellant’s problems with her hip would not be sufficiently ongoing to restrict her mobility beyond the period of one year.  The apparent conclusion that because of ongoing problems with her hip the appellant’s entitlement to the lowest rate of the care component of DLA should be for an indefinite period appears, therefore, incongruous.

	The restriction of the award of entitlement to the higher rate of the mobility component of DLA

22.	An appeal tribunal is entitled to make an award of disability for a fixed period.

23.	Section 71(3) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, provides that a ‘person may be awarded either component for a fixed period or for an indefinite period.’

24.	It is clear, however, that where an appeal tribunal makes a decision that an award of entitlement to DLA should be for a fixed period, then the appeal tribunal, in its SORs, should provide an explanation as to why the award is for such a fixed period.  Support for that conclusion is to be found in the decision of the Chief Social Security Commissioner in C6/94(DLA).  In that decision, the Chief Social Security Commissioner was discussing the making of awards of DLA in the context of a general provision relating to the duration of awards.  Nonetheless, his remarks concerning the requirement for a clarification of the reasons for the limitation of an award remain applicable.

25.	The Chief Social Security Commissioner made it clear that the requirement to explain a limitation in award is not onerous.  He described it, in paragraph 7, as the appeal tribunal making it:

‘… clear that they have considered the point and explain in brief terms why they have decided that the award should be for the fixed period which they have selected.’

26.	In the instant case, the appeal tribunal decided that the award of entitlement should be restricted to a fixed period of one year from 30 April 2007 to 29 April 2008.  There are two important aspects to that decision, 30 April 2007 was the date of claim to entitlement to DLA, 29 April 2008 was a date prior to the date of the appeal tribunal hearing.

27.	In CDLA/2349/2008, the appeal tribunal had also made an award of entitlement to DLA for a fixed period of one year from the date of claim to a date which was one week before the date of the appeal tribunal hearing.  Commissioner Williams set out the effects – usually negative – which an award of that type, ie falling short of the date of the appeal tribunal hearing might have.  On that basis he concluded, at paragraph 2, that:

‘The choice of an award period that causes these effects has to be a positive decision needing clear justification.’

28.	Accordingly, there is clear guidance that:

(a)	the decision to restrict any award for a fixed period requires a clear explanation; and

(b)	the decision to restrict an award for a period which falls short of the date of the appeal tribunal hearing, with the possibility of consequent negative effects for the claimant, also requires ‘clear justification’.

29.	In the instant case, the appeal tribunal said the following about its decision to restrict the award:

‘We limited the award to one year.  The reason for doing this was the primary source of entitlement was the right hip problem and the immediate seqeli [sic] of the surgery.  Generally, the recovery period after hip operations such as this would be 3 to 6 months.  The Appellant’s condition may have justified a more protracted record [sic].  However, it was our conclusion that this should comfortably be covered by a year’s recuperation.  We saw no entries in the notes which would indicate this was not the case.  The surgery on her hip was successful and had improved her mobility.  While she continues to have problems with her left hip we did not feel this was sufficient to convey entitlement to the high rate mobility beyond this.’

30.	A reading of that passage might give the reader the impression that the appeal tribunal was minded to limit the award of entitlement to the higher rate of the mobility component for a one year period from the date of the hip replacement operation.  The reasons are couched in terms of ‘recuperation’ and ‘recovery’.  The date of the hip replacement operation was 28 June 2007.  A year’s recovery would have continued to 17 June 2008.  Yet the decision of the appeal tribunal was to restrict the entitlement to the one year period from the date of claim, 30 April 2007 to 29 April 2008.

31.	I am of the view that the appeal tribunal was entitled, in making a decision with respect to the period of an award, to consider evidence which post-dated the decision under appeal, provided that the post-dated evidence could be related back to the period under consideration.  That is in line with the principles set out by Commissioner Jacobs in Great Britain in R(DLA) 3/01.

32.	I am of the view, however, that the appeal tribunal’s explanation of its decision to restrict entitlement to a fixed period award which fell short, in time, of the date of the appeal tribunal hearing, did not reach the standard set out by Commissioner Williams in  CDLA/2349/2008 and does not amount to ‘clear justification’.  As was pointed out by Commissioner Williams, the ending of a fixed period award of entitlement to DLA, at a date short of the date of the appeal tribunal hearing carries certain ramifications which should form part of the consideration process by an appeal tribunal.  In the instant case, the appeal tribunal may have been alert to the consequences of its decision to restrict the award of the higher rate of the mobility component, in the manner in which it did.  That might explain the post oral hearing discussions with the representative.  Nonetheless, the appellant, and her representative were, in my view, entitled to know the basis upon which the award was restricted in the manner in which it was.

	The post-appeal hearing discussions

33.	In the application for leave to appeal to the Social Security Commissioner, the appellant has asserted that the ROPs for the appeal tribunal hearing and the SORs for the appeal tribunal’s decision are incomplete.  More particularly, there is no record of a conversation which took place at the end of the hearing between the appellant’s representative and the LQPM when an award of DLA was discussed.  In the application for leave to appeal, the purported post-oral hearing discussions are set out in some detail.

34.	I cannot see any reference in the ROPs that any post-hearing interaction took place.  In C28/09-10(DLA), I stated, at paragraph 73:

‘It cannot be emphasised enough that any interaction, intervention, or action which relates to an appeal tribunal session or oral hearing of an individual appeal, should be accurately recorded in the ROPs for the appeal tribunal hearing, or otherwise noted by the clerk to the appeal tribunal, in a session report.’

35.	If an appeal tribunal, as a result of its deliberations following the completion of the oral hearing, wishes to bring an aspect of an appeal to the attention of the parties to the proceedings, then the parties to the proceedings should all be recalled to the appeal tribunal, and an accurate as possible record of the detail of the discussions should be included in the ROPs.

	Disposal

36.	The decision of the appeal tribunal dated 10 February 2009 is in error of law.  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.

37.	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.

38.	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 18 October 2007, which decided that the applicant was not entitled to DLA from and including 30 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.

(signed):  K Mullan

Commissioner

4 November 2010