FH-v-Department for Social Development (DLA) [2010] NICom 105

Decision No:  C23/09-10(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 27 June 2008

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 27 June 2008 is in error of law.

2.	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.

3.	I am able to exercise the power conferred on me by Article 15(8)(a)(ii) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given as I can do so having made further findings in fact.  The fresh findings in fact are outlined below.

4.	My substituted decision is that the appellant is entitled to the lowest rate of the care component and the lower rate of the mobility component of disability living allowance (DLA) from and including 22 October 2005.  Any award of entitlement to DLA, made on any decision of the Department since 22 October 2005, is treated as having been made on account of this award.

	Background

5.	On 8 November 2005, a decision-maker of the Department decided that the appellant was not entitled to DLA from and including 22 October 2005 on a renewal claim.  On 28 February 2006, the decision dated 8 November 2005 was reconsidered but was not changed.  An appeal against the decision dated 8 November 2005 was received in the Department on 24 March 2006.
6.	The substantive appeal tribunal hearing took place on 27 June 2008, after a lengthy series of postponements and adjournments.  The appeal tribunal disallowed the appeal, and confirmed the decision dated 8 November 2005.

7.	On 20 July 2008 a request for a statement of reasons (SORs) for the appeal tribunal’s decision was received in the Appeals Service (TAS).  On 14 November 2008, the SORs were issued to the appellant.

8.	On 17 December 2008 an application for leave to appeal to the Social Security Commissioner was received in TAS.  On 28 December 2008, the application for leave to appeal was refused by the legally qualified panel member.

	Proceedings before the Social Security Commissioner

9.	On 13 February 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 3 April 2009, further correspondence was received from the appellant’s mother.

10.	On 12 May 2009 observations were sought from Decision Making Services (DMS) and these were received on 10 June 2009.  DMS opposed the application on two of the grounds submitted by the appellant but supported the application on one other ground, and on a further identified ground.  Observations were shared with the appellant on 16 June 2009.  On 29 July 2009, a further submission was received from the appellant’s mother.

11.	On 3 September 2009 I granted leave to appeal to the Social Security Commissioner.  In granting leave to appeal, I cited as reasons that arguable issues arose as to:

(i)	the extent to which the appeal tribunal considered and applied the principles set out in R(DLA)1/07; and

(ii)	the extent to which the appeal tribunal undertook a proper assessment of all of the evidence before it.

12.	On 16 September 2009, further correspondence in connection with the grant of leave to appeal was received from the appellant’s mother.

13.	On 11 November 2009, I directed an oral hearing of the appeal which took place on 21 January 2010.  At the oral hearing, the appellant was represented by his mother, and the Department was represented by Mr Kirk of the DMS section.  Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions.

	Errors of law

14.	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.

15.	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.”

	Was the decision of the appeal tribunal in the instant case in error of law?

	The submissions of the parties

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

(i)	the appeal tribunal took an incorrect approach in the manner in which it assessed the appellant’s entitlement to the lowest rate of the care component;

(ii)	 the appellant should have an entitlement to the lower rate of the mobility component of DLA; and

(iii)	the reasons for the appeal tribunal’s decision are inadequate. 

17.	In the initial observations on the application for leave to appeal, Mr Kirk from the DMS unit, opposed the application on the basis of the first ground cited by the appellant, submitting that there had been no error of law in connection with the appellant’s entitlement to the lowest rate of the care component of DLA.  Further, Mr Kirk also submitted that the appeal tribunal’s decision with respect to the lower rate of the mobility component of DLA was sustainable on the evidence which was available to it.

18.	Mr Kirk submitted, however, that the decision of the appeal tribunal was in error of law on the basis of two further submitted grounds.  Firstly, the appellant, in his renewal application form to DLA had indicated that he had problems with communication.  The appeal tribunal had failed to address these communication problems in the SORs for its decision, and had failed, in light of the principles in the decision of the Tribunal of Commissioners in Great Britain in R (DLA) 1/07, to determine whether the appellant’s problems with communication equated to attention in connection with bodily functions for the purposes of entitlement to the lowest rate of the care component of DLA.  Secondly, the appeal tribunal was faced with a conflict in the evidence which was before it in connection with the appellant’s ability to manage certain of the tasks associated with the preparation of a cooked main meal.  That conflict in evidence was not resolved by the appeal tribunal and the appeal tribunal’s failure to resolve it was contrary to the principles set out in C16/08-09 (DLA).

	Analysis

19.	At the substantive oral hearing of the appeal, the appellant was present and gave oral evidence.  The appellant’s mother was also present and gave oral evidence to the appeal tribunal and made submissions on the appellant’s behalf.  In the record of proceedings (ROPs) for the appeal tribunal hearing, the appellant’s mother makes reference to a letter from Dr McQ…. which she described as the ‘most recent letter’, in which Dr McQ…. referred to the problems which the appellant might have with cooking implements such as knives.  Later in the ROPs, it is noted that the appellant’s mother has asked ‘I was wondering do you have all the present notes and recommendations about workplace?’

20.	In the SORs for the appeal tribunal’s decision, the appeal tribunal refers to evidence which was before it from the appellant’s general practitioner (GP).  At paragraph 10 of the SORs, the appeal tribunal state:

‘10.	In the factual report from his doctor, Dr T…. dated 2 November 2005 it was indicated that he could manage safely basic activities such as dressing, undressing and preparing a meal and taking medication.  It was felt he could be left safely unsupervised.  Subsequently, in her letter dated 8 December 2005 the doctor provides a different opinion saying he requires assistance to use pots and pans in the kitchen.  The reason given is that he is anxious and nervous.  We have difficulty understanding this change in opinion …’           

21.	It was, in my view, incumbent on the appeal tribunal to explore this conflict in the evidence from the GP, and to seek a resolution of that conflict.  It is not enough, I believe, for the appeal tribunal to state that it did not understand why the GP had changed her mind.  The conflict could have been resolved by consideration of the other evidence which was available to the appeal tribunal.  As was noted above, the substantive appeal tribunal hearing took place after a lengthy series of postponements and adjournments.  At the adjourned oral hearings, and as a result of some of the postponements, additional evidence was made available to the appeal tribunal which might have assisted in the resolution of the conflict in evidence.  For example, another medical report, dated and signed by the appellant’s GP, was made available as a result of an adjourned oral hearing on 3 January 2008.  In that medical report, the GP reports no problems with the activities associated with the preparation of a cooked main meal.  Additionally, the appeal tribunal had before it a copy of a report from Dr McQ… a Chartered Psychologist, dated 26 October 2007, in which the appellant’s problems are assessed in considerable detail.

22.	As I stated in C16/08-09(DLA), 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.”

23.	In connection with this duty, I am also concerned that the appeal tribunal did not consider the entirety of the evidence which the appellant’s mother wished to have before the appeal tribunal.  As was noted above, at the substantive oral hearing of the appeal, the appellant’s mother made reference to further medical reports from Dr McQ…. including the ‘most recent letter’.  The submission from the appellant’s mother was that there was clear evidence which should have been before the appeal tribunal which supported her submission that the appellant would have difficulties with the preparation of a cooked main meal, no matter what the environment was.  Her further recorded question ‘I was wondering do you have all the present notes and recommendations about workplace?’ is reflective of her concerns about other evidence, particularly from Dr McQ…. concerning the appellant’s ability in the workplace, and how this correlated to his abilities in the home.  The appeal tribunal had been given evidence that the appellant had been assigned kitchen duties as part of his employment obtained while waiting to resit his examinations.  

24.	In the SORs for the appeal tribunal’s decision with respect to the care component of DLA, the appeal tribunal, at paragraph 15, has stated that:

‘… We accept that the Appellant would have some difficulties because of his innate clumsiness.  For instance, we can imagine he would encounter difficulties given the fast working pace of a commercial kitchen.  However, in the domestic context we believe with taking his time he has adequate capability to cook and prepare a main meal for himself …’

25.	Clearly, the appeal tribunal wished to differentiate the appellant’s abilities in the commercial environment, where the available evidence was that he had significant problems, with the domestic environment, where the appeal tribunal concluded that he would not have such problems.

26.	I have been provided with a copy of the ‘most recent letter’, from Dr McQ.… as referred to by the appellant’s mother, and as recorded in the ROPs.  That letter is dated 23 June 2008, just before the date of the appeal tribunal hearing and, after making reference to the appellant’s personal details, reads as follows:

‘The above young man is a highly intelligent individual but suffers from conditions known as dyslexia and dyspraxia.  The former affects his literacy to some degree and the latter his fine motor coordination and speed of carrying out tasks involving manual dexterity.

This means that he is going to be very clumsy using sharp instruments like knives, scissors or tin openers and likely to hurt himself in the kitchen whether domestic or commercial, particularly when asked to work under time pressure, because he is very slow.  It is therefore preferable that he works in an area where he can perform tasks which are less dangerous for him and more suited to his abilities.’

27.	I have also been provided with a copy of a letter from Dr McQ… dated 7 April 2008.  In this correspondence, Dr McQ…. states that:

‘… While highly intelligent his specific learning difficulties make him very slow at processing and carrying out instructions, very clumsy in many practical tasks and poor at spelling and writing.

… Both conditions vary in initial severity but are usually present to at least some degree throughout the individual’s life …
 
… (the claimant) may need to avoid tasks which require good motor coordination, particularly in the use of DIY tools, scissors and dangerous instruments such as knives in the kitchen environment … He is likely to be poor at organizing his workload and need instructions repeated several times, as well as being given additional time to complete certain tasks due to his very slow processing speed.’

28.	As was noted above, the appellant’s mother made specific reference to this correspondence from Dr McQ…. in an oral submission to the appeal tribunal.  Her expectation was that this evidence was before the appeal tribunal, and would be taken into consideration by the appeal tribunal.  Her further submission was that this evidence was supportive of the appellant’s claim to the lowest rate of the care component of DLA, and is confirmed that the tasks associated with the preparation of a cooked main meal were dangerous for the appellant.  The appellant’s mother believed that the evidence contained in the reports from Dr McQ…. were of more value than that contained in the factual reports from the GP.  Finally, the evidence supported the submission that there was no difference in the appellant’s abilities whether in the commercial or domestic environment.    

29.	There is no reference in the SORs for the appeal tribunal’s decision to the evidence from Dr McQ….. That might be because the appeal tribunal had the evidence before it but made no assessment of it and no findings in connection with it.  If that is the case, the appeal tribunal was in error of law.

30.	The appeal tribunal was alerted to the evidence by the appellant’s mother.  She sought clarification that all of the evidence which she considered to be relevant was available to the appeal tribunal.  In those circumstances, it was incumbent on the appeal tribunal to assure the appellant that it has all of that evidence and that the evidence would be taken into consideration.

31.	It is clear that the appeal tribunal has not, in the circumstances set out in the previous two paragraphs, either taken into account or stated what it made of the evidence of Dr McQ…. which was submitted to the appeal tribunal to be relevant to the issues arising in the appeal.  In failing so to do, the decision of the appeal tribunal is in error of law.     

	A word on R(DLA) 1/07

32.	As was noted above, in granting leave to appeal, I cited as one of the reasons that arguable issues arose as to the extent to which the appeal tribunal considered and applied the principles set out in R(DLA)1/07.

33.	In R(DLA) 1/07, a Tribunal of Commissioners in Great Britain held that:

‘1.	the functions of the brain were included within the term “bodily functions”.  This was consistent with the approach of the courts in such cases as R v National Insurance Commissioner ex parte Secretary of State for Social Services [1981] 1 WLR 1017 (also reported as an Appendix to R(A) 2/80) (“Packer’s Case”), Mallinson v Secretary of State for Social Services [1994] 1 WLR 630 (also reported as R(A) 3/94), Cockburn v Chief Adjudication Officer [1997] 1 WLR 799 (also reported as an Appendix to R(A) 2/98) and Woodling v Secretary of State for Social Services [1984] 1 WLR 348 (…);

2.	on the basis of the approach adopted in Mallinson and Cockburn, and as conceded by the Secretary of State, prompting and motivating were capable of constituting attention in connection with an impaired bodily function (…);

3.	it was necessary to consider whether a particular activity was a “bodily function”.  Certain kinds of function were merely things that a body could do if the relevant bodily functions were working normally.  The focus in the statutory provisions was on disablement (ie functional deficiency) and whether attention was reasonably required because of that deficiency.  Even where a particular activity could not be described as a bodily function, recourse must be had to the discrete bodily functions involved in the activity which will have to be identified and “unbundled”, considered and assessed.  In functionally complex activities, the “unbundling” exercise was the correct approach (…).’

34.	In the instant case, I requested DMS to provide observations on the extent to which the decision of the appeal tribunal was in conformity with the principles set out in R(DLA) 1/07.  In reply, Mr Kirk observed that:

‘In this decision a Tribunal of GB Commissioners’ considered and held that functions of the brain could constitute bodily functions.  It was also held that prompting and motivating and assistance with communication and social integration are capable of constituting attention in connection with bodily functions.    

The Commissioners also held that even where a disablement is shown it must be shown that the relevant attention is reasonably required by virtue of the disablement and it may be necessary to focus upon the disablement with some particularity.  Furthermore even where a particular activity could not be described as a bodily function recourse must be had to the discrete bodily functions involved in the activity which will have to be identified and unbundled.

At paragraph 45 the Commissioners stated:

“45.  ….In a case where the claimant’s claim is based upon difficulties with communicating, it will be possible to look at the particular functional aspects that are deficient in his or her case, in order to properly assess the attention that will reasonably be required in respect of those deficiencies…..

At section 2 of the renewal self assessment forms (Tab 1 to the Department’s submission) (the claimant) stated that he had problems communicating what he wants to say, he found it hard speaking to people he did not know, and he had difficulties with both verbal and written communication.  In light of the above case law I would submit it was incumbent on the tribunal to ‘unbundle’ the specific bodily function that is deficient and to assess whether or not attention was reasonably required in respect of that deficiency.  I can find nothing within the statement of reasons for its decision that indicates the tribunal considered the communication problems that (the claimant) may have had and whether such problems may equate to attention with ‘bodily functions’; I submit its failure to do so renders the decision erroneous in law.’

35.	At paragraph 16 of the SORs, the appeal tribunal has set out its reasons in respect to entitlement to the lower rate of the mobility component of DLA. The appeal tribunal stated:

‘With regard to low rate mobility we felt that he had adequate insight and ability to manage unaided out of doors.  In unfamiliar surroundings he would have the ability to ask people for directions.  We appreciate that he may have problems processing some of the information given.  However, we believe he would have adequate comprehension to ask another person should he become unstuck.  His mother makes reference to his requiring extra time to get ready.  She said this is one of the reasons why taxis are used.  We believe this can be adjusted by the Appellant and do not see it as the reason for justifying an award of the low rate mobility component.  We saw no physical reason for him to be accompanied.’

36.	As was observed by Mr Kirk, in the renewal application form to DLA, the appellant was asked specific questions about his ability to communicate with other people.  In his response, he stated, inter alia, that he had difficulty in communicating with people whom he did not know.  Amongst the papers, which were before the appeal tribunal was a report from Dr McQ…. dated 26 October 2007.  In this report, Dr McQ…. set out the results of a series of tests conducted with the appellant.  In her conclusions she states that the appellant is:

‘… a young man of superior verbal and average performance abilities.  This disparity is very much evident in the contrast between his very superior verbal comprehension and his very slow processing speed … his ability to decode unfamiliar pseudowords and spell accurately are both significantly poorer than expected from his verbal intellectual capacity.’

37.	In my view, the appeal tribunal, while accepting certain of the available evidence concerning the appellant’s ability to process information, did not consider, in their entirety, the range of problems which the appellant might encounter when walking out of doors on routes which were not familiar to him on his own.  The appeal tribunal concluded that the appellant had sufficient comprehension to ‘… ask another person if he became unstuck.’  Other aspects of that scenario were not explored, however.  The appeal tribunal did not factor in the appellant’s stated problems with communicating with people whom he did not know.  Further, Dr McQ…. indicated that the appellant has problems that are not restricted to processing but extend to decoding and spelling.  Accordingly, and to use the example cited by the appeal tribunal, asking a stranger for instructions if he became unstuck may not derive any benefit if the appellant could not decode the information provided, or, for example, spell the names of streets/districts to which he might be directed.  In the report dated 7 April 2008, Dr McQ…. also referred to the requirement to have instructions repeated several times.  A repetition of instructions is unlikely to happen in the scenario envisaged by the appeal tribunal.

	My further findings in fact

38.	I have had the benefit of seeing all of the evidence which was before the appeal tribunal, with the exception of hearing the oral evidence of the appellant himself.  At the oral hearing of the appeal before the Social Security Commissioner, the appellant’s mother attended and gave oral evidence and made further oral submissions.  I found the appellant’s mother to be honest and credible and I accept her evidence in its entirety.  I also accept the evidence of Dr McQ…. as set out in the reports and correspondence dated 26 October 2007, 7 April 2008 and 23 June 2008.  Dr McQ…. is a specialist Chartered Psychologist whose reports on the appellant are based on specific tests and examinations.

39.	I find that the appellant is unable to prepare a cooked main meal for himself even if he had the ingredients.  I find that the appellant’s problems are as set out in the correspondence from Dr McQ…. dated 23 June 2008.  He is very clumsy using sharp instruments like knives, scissors or tin openers in the preparation of a cooked main meal and would present as a significant danger to himself, even in the domestic cooking environment.  His ability to manage the tasks associated with the preparation of a cooked main meal would be a significantly slower speed than normal, so as to give the task a degree of futility.

40.	I find that the appellant does not otherwise require attention in connection with his bodily functions, either by day or by night, and does not require continual supervision throughout the day in order to avoid substantial danger to himself or others, or in order to avoid substantial danger to himself or others require another person to be awake for a prolonged period or at frequent intervals for the purpose of watching over him.

41.	I find that the appellant has a reasonable requirement for guidance or supervision from another person for most of the time while walking out of doors on routes which are not familiar to him.  I find that the appellant’s problems arise from his inability to decode and process information, and from his problems with communicating with persons who are unknown to him.  I find that the appellant would not be in a position to re-negotiate his way out of a route/place which was unfamiliar to him, even after consultation with a member of the public.

42.	I find that the appellant has no physical problems with walking, and, as such, is neither unable nor virtually unable to walk.

43.	I find that, as a result of the nature of the appellant’s disabilities, there will be no significant change in the appellant’s problems with the preparation of a cooked main meal and with walking on routes which are not familiar to him for most of the time, in the future.

	Disposal

44.	The decision of the appeal tribunal dated 27 June 2008 is in error of law.

45.	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.

46.	I am able to exercise the power conferred on me by Article 15(8)(a)(ii) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given as I can do so having made further findings in fact.  The fresh findings in fact are outlined below.

47.	My substituted decision is that the appellant is entitled to the lowest rate of the care component and the lower rate of the mobility component of DLA from and including 22 October 2005.  Any award of entitlement to DLA, made on any decision of the Department since 22 October 2005, is treated as having been made on account of this award.

(signed):  Kenneth Mullan

Commissioner

3 November 2010