NW-v-Department for Social Development (DLA) [2010] NICom 108
Decision No:  C73/10-11(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 18 August 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 18 August 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 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 27 May 2008 a decision-maker of the Department revised an earlier decision of the Department, dated 7 January 2008, and decided that the appellant was entitled to the lowest rate of the care component of DLA from and including 6 August 2007.

9.	A telephone call was received in the Department on 13 March 2009, requesting a supersession of the decision dated 27 May 2008.  Subsequently, on 9 April 2009, a completed form ‘DLA 434 SUMM’ was received in the Department, from the appellant.  A report was completed by the applicant’s general practitioner (GP) on 1 May 2009.

10.	On 11 May 2009, a decision-maker of the Department decided that there were no grounds to supersede the decision dated 27 May 2008.

11.	On 26 May 2009 an appeal against the decision dated 27 May 2008 was received in the Department.  The appeal tribunal hearing took place on 18 August 2009.  The appellant was present with his wife.  The appellant was also represented.  The Department was not represented.  The appeal tribunal disallowed the appeal and confirmed the decision dated 11 May 2009.

12.	On 6 November 2009 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.  On 12 November 2009 the application for leave to appeal was refused by the legally qualified panel member (LQPM).

	Proceedings before the Social Security Commissioner

13.	On 29 December 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.

14.	On 30 March 2010 observations were sought from Decision Making Services (DMS) and these were received on 28 April 2010.  DMS opposed the application on all of the grounds submitted by the appellant.

15.	Observations were shared with the appellant and his representative on 19 May 2010.  On 8 June 2010 written observations in reply were received from the appellant’s representative, which were shared with DMS on 23 June 2010.

	Errors of law

16.	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.

17.	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

18.	In the application for leave to appeal to the Social Security Commissioner, the appellant’s representative has submitted that the decision of the appeal tribunal was in error of law on the following grounds.

(i)	The appeal tribunal was wrong to state that the evidence contained in the examining medical practitioner’s (EMP’s) report of 2007 along with the later GP factual report was not sufficient to warrant a relevant change of circumstances.  The EMP report had shown that the appellant had given an account of severe exacerbations and having more bad days than good.  The EMP also recommended contacting the GP regarding the variability of the appellant’s condition.  In turn, the GP factual report stated that there was no variability with daily pain and help required with self care.  Accordingly, there was sufficient evidence to consider a relevant change of circumstances and the appeal tribunal failed by not considering the appellant’s care and mobility needs at the date of supersession.

(ii)	The appeal tribunal did not fully consider the support and assistance received from social services and the occupational therapist in relation to the appellant’s condition.  The appeal tribunal failed to explain the significant adjustments made to the appellant’s house by the occupational therapist.  The appeal tribunal considered that it was more important to record that the appellant was advised to get rid of his stick at the pain clinic.

(iii)	The appeal tribunal considered a medical report in respect of a back scan in isolation from a complex medical history that included a recent stroke, poorly controlled diabetes, osteoarthritis and significant medical intervention.

(iv)	The appeal tribunal relied on a report from the pain clinic that was heavily disputed.  The appellant’s explanation of this dispute was not recorded.

19.	As was noted above, in observations on the application for leave to appeal, DMS opposed the application on all of the grounds submitted by the appellant.

	Analysis

20.	In many respects, the appellant’s application for leave to appeal to the Social Security Commissioner amounts to a further submission on factual issues rather than questions of law.  It is clear that an appeal on a question of law should not be permitted to become a re-hearing or further assessment of the evidence, when that assessment has already been fully and thoroughly undertaken.  It is important to note that the assessment of evidence is a matter for the appeal tribunal, and a Social Security Commissioner must be wary of interfering with the conclusions of an appeal tribunal based on its evidential assessment.

21.	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.”’

22.	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.’

23.	The appeal tribunal in the instant case, following a rigorous assessment of the appellant’s own oral evidence, did not find that evidence to be convincing.  Once again, that was an assessment which the appeal tribunal was entitled to make.

24.	In C14/02-03(DLA), Commissioner Brown stated, at paragraph 11:

‘ … there is no universal rule that a Tribunal must always explain its assessment of credibility.  It will usually be enough for a Tribunal to say that it does not believe a witness.’

25.	Additionally, in R3/01(IB)(T), a Tribunal of Commissioners, at paragraph 22 repeated what the duty is:

‘We do not consider that there is any universal obligation on a Tribunal to explain its assessment of credibility.  We disagree with CSIB/459/97 in that respect.  There may of course be occasions when this is necessary but it is not an absolute rule that this must always be done.  If a Tribunal makes clear that it does not believe a claimant’s evidence or that it considers him to be exaggerating this will usually be sufficient.  The Tribunal is not required to give reasons for its reasons.  There may be situations when a further explanation will be required but the only standard is that the reasons should explain the decision.  It will, however, normally be a sufficient explanation for rejecting an item of evidence, including evidence of a party to an appeal, to say that the witness is not believed or is exaggerating.’

26.	This reasoning was confirmed in CIS/4022/2007.  After analysing a series of authorities on the issue of the assessment of credibility, including R3/01(IB)(T), the Deputy Commissioner (as he then was) summarised, at paragraph 52, as follows:

‘In my assessment the fundamental principles to be derived from these cases and to be applied by tribunals where credibility is in issue may be summarised as follows: (1) there is no formal requirement that a claimant's evidence be corroborated – but, although it is not a prerequisite, corroborative evidence may well reinforce the claimant's evidence; (2) equally, there is no obligation on a tribunal simply to accept a claimant's evidence as credible; (3) the decision on credibility is a decision for the tribunal in the exercise of its judgment, weighing and taking into account all relevant considerations (e.g. the person's reliability, the internal consistency of their account, its consistency with other evidence, its inherent plausibility, etc, whilst bearing in mind that the bare-faced liar may appear wholly consistent and the truthful witness's account may have gaps and discrepancies, not least due to forgetfulness or mental health problems); (4) subject to the requirements of natural justice, there is no obligation on a tribunal to put a finding as to credibility to a party for comment before reaching a decision; (5) having arrived at its decision, there is no universal obligation on tribunals to explain assessments of credibility in every instance; (6) there is, however, an obligation on a tribunal to give adequate reasons for its decision, which may, depending on the circumstances, include a brief explanation as to why a particular piece of evidence has not been accepted.  As the Northern Ireland Tribunal of Commissioners explained in R 3/01(IB)(T), ultimately "the only rule is that the reasons for the decision must make the decision comprehensible to a reasonable person reading it".’

27.	Where, then, did the appeal tribunal go wrong?

28.	In the form ‘DLA 434 SUMM’ which was received in the Department from the appellant on 9 April 2009, the appellant gave details of aids and appliances which he had received to assist him in coping with his disabilities.  That evidence was repeated in some detail at the oral hearing of the appeal, together with references to health care professionals such as physiotherapists and occupational therapists to whom the appellant had been referred.

29.	In the statement of reasons for the appeal tribunal’s decision, there is no reference to this evidence or to what the appeal tribunal made of it.  In the written observations on the application for leave to appeal, DMS has submitted that:

‘I would submit that the issue for the tribunal was to assess what needs (the claimant) required arising from his medical condition.  I would further submit that the adaptations made to (the claimant’s) house could be seen as reasonable aids and as such would probably have made him more independent and lessened the help he reasonably required.  The tribunal’s role was to assess all the available evidence placed before it at hearing and decide if (the claimant’s) needs worsened to justify superseding the previous decision.  As I have explained above it’s assessment of the evidence was fair and it was entitled to come to the conclusions it did.  Consequently it did not err in law in this regard.’

30.	I am of the view that the appeal tribunal could have arrived at an assessment of the evidence concerning the adaptations to the appellant’s home, as submitted by DMS, and could have agreed that the relevant aids and appliances gave him assistance and a degree of independence.  I conclude, however, and with respect to the submission from DMS, that it is not enough to assert that the aids and appliances would ‘probably’ have made him more independent.  In my view the task of the appeal tribunal was to adduce evidence as to the nature of the aids and appliances with which the appellant had been provided; the reasons for that provision; and the effect of that provision on his ability to mobilise and/or attend to his bodily functions.  In the instant case, the appeal tribunal did take evidence in connection with what aids and appliances had been provided, and some elements of their effect.  What the appeal tribunal did not do, however, was to assess the effects of the provision of the aids and appliances on the appellant’s ability to mobilise and/or attend to his bodily functions.  With a great deal of reluctance, therefore, based on the appeal tribunal’s thoroughness in dealing with the remainder of the issues arising in the appeal, I find that the decision of the appeal tribunal is in error of law.

	Disposal

31.	The decision of the appeal tribunal dated 18 August 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.

32.	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 11 May 2009, in which a decision-maker of the Department decided that there were no grounds to supersede the decision dated 27 May 2008;

(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

10 November 2010