DF-v-Department for Social Development (DLA) [2010] NICom 113
Decision No:  C75/10-11(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 20 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 20 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 his entitlement to disability living allowance (DLA), for a particular period, 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 15 August 2006 a decision-maker of the Department decided that an earlier decision of the Department, dated 19 November 1998, should be superseded.  The decision dated 19 November 1998 had made an award of an entitlement to the higher rate of the mobility component and the middle rate of the care component of DLA from and including 14 January 1999.  The decision dated 15 August 2006 disallowed entitlement to both components of DLA from and including 28 March 2006.

9.	An appeal against the decision dated 15 August 2006 was received in the Department on 24 August 2006.

10.	There were a number of postponements and adjournments of the appeal.  The adjournments were mainly for the purpose of ensuring that benefit investigation officers (BIS) should attend the oral hearing of the appeal.  The substantive appeal tribunal hearing took place on 20 February 2009.  The appellant was present and was represented.  A presenting officer from the Department was present as was a Departmental witness.  The appeal tribunal disallowed the appeal, and confirmed the decision dated 15 August 2006.

11.	On 3 July 2009 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.  On 10 July 2009, the application for leave to appeal was refused by the legally qualified panel member.

	Proceedings before the Social Security Commissioner

12.	On 10 August 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.

13.	On 12 October 2009 observations were sought from Decision Making Services (DMS) and these were received on 5 November 2009.  DMS opposed the application on the grounds cited by the appellant.

14.	Observations were shared with the appellant and his representative on 19 November 2009.  Written observations in reply were received from the appellant on 16 December 2009 which where shared with DMS on 22 December 2009.

15.	On 7 January 2010 I directed an oral hearing of the application.  The oral hearing of the application took place on 27 April 2010.  At the oral hearing, the appellant was represented by Mr Doran, and the Department was represented by Mr Collins of the DMS section.  Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions.

	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.”

	The error of law in the instant case

18.	At the oral hearing of the application for leave to appeal, the appellant’s representative submitted that at the substantive oral hearing of the appeal, on 20 February 2009, he had acted as the appellant’s representative.  He states that he made specific reference to a medical report which he wished the appeal tribunal to consider, and indicated that he had a copy of this report available for consideration by the appeal tribunal.  The medical report was dated 7 November 2007 and was from Dr “W”, a consultant in anaesthetics and pain management.  The reason why the appellant’s representative had wished to make reference to this report was because he was concerned that the Department, as part of the decision-making process giving rise to the decision under appeal, had not sought any additional medical evidence, such as a report from an examining medical practitioner (EMP).

19.	The appellant’s representative thought that the report dated 7 November 2007 would give a more contemporaneous analysis of the appellant’s medical condition than any of the other medical evidence available to the appeal tribunal.  The appellant’s representative states that when he made reference to the report from Dr “W”, during the oral hearing of the appeal, he was informed that all of the appellant’s medical records were available to the appeal tribunal and had been considered.

20.	In the ‘Documents Considered’ section of the record of proceedings for the appeal tribunal hearing, it is recorded that the appeal tribunal had before it:

‘Submission and all accompanying documents. General Practitioner notes and records also considered.’

21.	There is, therefore, no specific reference to the report from Dr “W” to which the appellant’s representative had referred.

22.	In the statement of reasons for the appeal tribunal’s decision, there is detailed reference to the evidence contained within the appellant’s renewal claim form to DLA, received in the Department on 24 April 1998; the report of an examination undertaken by an EMP, dated 10 November 1998; and the evidence obtained in connection with the surveillance of the appellant by BIS.  The major part of the evidential assessment contained within the statement of reasons is taken up with a comparison between the evidence provided and adduced as part of the successful claim to DLA in 1998, and the observation evidence in 2006.  The statement of reasons also includes the following:

‘… There is some support for this view from the Claimant’s medical records.  He was described in an orthopaedic report of 2003 as walking with a normal gait though the Claimant’s evidence was that his back was still affected at that time.  An MRI scan at that time showed only minor disc bulge.  The records do not suggest any major medical problems at the relevant time.  There is a reference to a flare up of back pain on 21.03.2006 but nothing to suggest it was of major intensity or duration.  The next visit to his doctor, some 2 months later refers to pain in the chest, subsequently found to relate to his tummy.’

23.	Once again, there is no specific reference to the report from Dr “W” to which the appellant’s representative had referred.

24.	As was noted above, one of the reasons why the appellant’s representative submitted the medical report from Dr “W” to the appeal tribunal was that he was concerned that the Department, as part of the decision-making process giving rise to the decision under appeal, had not sought any additional medical evidence, such as a report from an EMP.

25.	The decision-maker of the Department decided on 15 August 2006 that an earlier decision of the Department, dated 19 November 1998, should be superseded.  The ground for supersession was that there had been a relevant change of circumstances since the decision dated 19 November 1998 had been made.  The supersession decision of 15 August 2006 was grounded in an evidential assessment involving a direct comparison between the appellant’s medical conditions, and the effects of that condition, as evidenced in the renewal claim form to DLA, dated as received in the Department on 24 April 1998 and the evidence and clinical findings in the report of the examination undertaken by an EMP, dated 10 November 1998, and an assessment of the appellant’s mobility and his care and/or attention needs, as evidenced in the video surveillance and accompanying statements from the officers from BIS.  There was, as the appellant’s representative submits, no attempt by the decision-maker to obtain additional medical evidence, either through obtaining a report from the appellant’s general practitioner (GP) or submitting the appellant to an examination by an EMP.

26.	It is, of course, for a decision-maker to adduce whatever evidence he/she considers to be necessary to ground any decision which is made.  The role of the appeal tribunal is to decide whether the decision made by the decision-maker was correct.  In the instant case, the appeal tribunal has undertaken a similar evidential assessment to that undertaken by the decision-maker.  It has supplemented that by assessing certain of the further medical evidence which was made available to it through the appellant’s GP records.  What the appeal tribunal has not done, however, is to state what it made of the evidence submitted on behalf of the appellant, in the form of the medical report prepared by Dr “W”.

27.	I can understand why the appellant and his representative thought that this report would be of significance to the issues arising in the appeal.  The report makes reference to Dr “W”’s involvement with treatment of the appellant’s medical condition from 5 February 2004, when the appellant was first referred to Dr “W”, and 1 August 2007 when the appellant was last seen by Dr “W” prior to the preparation of the relevant report.  The report provides details of the treatments and interventions offered to the appellant and their effects.  The medical report concludes:

‘Summary and prognosis.

(The claimant) has a long history of chronic low back, upper thoracic and neck pain.  The evidence for his condition is supported by degenerative changes at the L4/5 and in the upper thoracic spine at T9/10 level with osteophyte formation.  His pain and disability are clearly of significance and would be subject to fluctuation. (The claimant’s) mobility has increased and decreased from the time I have known him and the medical records would indicate that his pain is getting worse between November 2005 and August 2007.  In view of the degenerative changes found in the spine, which are not amenable to surgical treatment, it would be unreasonable to expect any long term or significant improvement in his disability.  However there would be periods of time when he would have been more likely to be more mobile than others as this is the nature of his condition.’

28.	In C8/08-09(IB), I stated, at paragraphs 60-61:

‘60.	The reason for my rejection of the DMS submission is that 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.

61.	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.’’

29.	Nonetheless, it is clear that the appellant’s representative placed a great emphasis on the significance of the report from Dr “W”.  Accordingly, I am of the view that it was incumbent on the appeal tribunal to give an explicit explanation as to what it made of that medical evidence.

30.	The issue having been raised by the appellant meant that the appeal tribunal was under a duty to consider it.  That required the appeal tribunal to acknowledge, in its statement of reasons that the issue was considered by the appeal tribunal.  It required the appeal tribunal to indicate what it made of the evidence from Dr “W”, and having assessed that evidence, make sufficient findings of fact in connection with it.

31.	Having found that the appeal tribunal was under a duty to consider the relevant evidence, and with no clear indication that it has considered 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.

	The evidence from BIS

32.	As was noted above, the supersession decision of 15 August 2006 was grounded in an evidential assessment involving a direct comparison between the appellant’s medical conditions, and the effects of that condition, as evidenced in the renewal claim form to DLA, dated as received in the Department on 24 April 1998 and the evidence and clinical findings in the report of the examination undertaken by an EMP, dated 10 November 1998, and an assessment of the appellant’s mobility and his care and/or attention needs, as evidenced in the video surveillance and accompanying statements from the officers from BIS.  Accordingly, the evidence from BIS was vital to the decision under appeal to the appeal tribunal.

33.	In the application for leave to appeal to the Social Security Commissioner, the appellant challenged the handling of the evidence from BIS by the appeal tribunal. In particular, the appellant challenges the appeal tribunal’s acceptance of the evidence from three officers from BIS, despite the fact that only one of those officers appeared at the oral hearing of the appeal. Further, the appellant challenged the acceptance of the evidence from all three officers from BIS, despite the evidence having distinct similarities in phrasing and language. Finally, the appellant challenged the reliability of the evidence contained in the evidence from the three officers from BIS, submitting that the three officers had no medical training or background and, accordingly, could not comment on specific disabilities and how their observations relate to the conditions of entitlement to DLA.

34.	At the oral hearing of the application for leave to appeal to the Social Security Commissioner, the appellant’s representative challenged the procedures under which the surveillance evidence was made available to him, as the appellant’s representative.  In relation to this submission, the appellant’s representative referred to the decision of the Social Security Commissioner in Great Britain in CIS/1481/06 and the DMG Memo Vol 1/76.

35.	The evidence before the appeal from BIS consisted of:

(a)	a very short video;

(b)	a record of an interview under caution undertaken with the appellant on 31 July 2006 when his solicitor was present;

(c)	witness statements from three officers from BIS.

36.	As was noted above, there were a number of postponements and adjournments of the appeal, mainly for the purpose of ensuring that BIS should attend the oral hearing of the appeal.  At the substantive oral hearing of the appeal, only one of the three officers attended the oral hearing.  The Departmental presenting officer explained that the two absent officers had, in fact, left BIS and could not now be traced.  The officer who did attend the appeal tribunal hearing gave oral evidence which is recorded in the record of proceedings for the appeal tribunal hearing.  The record of proceedings also notes that the appellant’s representative was given the opportunity to question the officer from BIS in connection with his oral evidence.

37.	The appellant and his representative were entitled to request that the officers from BIS attend the oral hearing and give oral evidence in connection with the surveillance undertaken on the appellant.  As was noted above, the evidence from BIS formed a vital part of the decision-making process giving rise to the appeal.  It was not wholly satisfactory, from a natural justice perspective that the two officers did not attend.

38.	Nonetheless, the appeal tribunal made a considerable effort to facilitate the attendance of the relevant officers, as requested by the appellant and his representative.  What was the appeal tribunal to do, however, when it became clear that two officers from BIS had left that organisation and could not be contacted through the normal lines of communication?  It is arguable that the appeal tribunal could have gone further and, perhaps, have exercised the power, under regulation 43 of the Social Security (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, to summons the two officers to attend as witnesses.  I am of the view, however, that the decision by the appeal tribunal to proceed on the basis of the evidence which was already before it was one that it was entitled to take.  One of the officers from BIS was present and was willing to give oral evidence.  That officer was one of two officers who had made video evidence which was available to be viewed by the appeal tribunal.  The appellant and his representative were in a position to question the officer who was present concerning the video which he took, his written statement based on the observations which he had conducted, and his oral evidence to the appeal tribunal.

39.	I am also of the view that the appeal tribunal’s assessment of the surveillance evidence was rational and coherent, and was adequately set out in the statement of reasons for the appeal tribunal’s decision.  In that statement of reasons, the appeal tribunal has set out in a clear and unambiguous manner, the reasons why it accepted all of the surveillance evidence, including the statements from the officers who were not present at the oral hearing of the appeal.  The appeal tribunal has addressed in detail the concerns raised by the appellant’s representative concerning the repetition of phrase and tone across three statements, and the submission that the officers’ lack of appropriate medical training vitiated the evidence set out in the statements based on their observations.  The appeal tribunal has linked the surveillance evidence to the other evidence which was before it (although it failed, as noted above, to include within that assessment the evidence from Dr “W”).  Read as a whole, therefore, it is clear what the appeal tribunal made of the surveillance evidence.  Accordingly, the decision of the appeal tribunal is not in error of law on the basis of the submissions made by the appellant and his representative in connection with the surveillance evidence.

	Should the appeal tribunal have adjourned to obtain further medical evidence in the form of an EMP report?

40.	As was noted above, the supersession decision of 15 August 2006 was grounded in an evidential assessment involving a direct comparison between the appellant’s medical conditions, and the effects of that condition, as evidenced in the renewal claim form to DLA, dated as received in the Department on 24 April 1998 and the evidence and clinical findings in the report of the examination undertaken by an EMP, dated 10 November 1998, and an assessment of the appellant’s mobility and his care and/or attention needs, as evidenced in the video surveillance and accompanying statements from the officers from BIS.  There was, as the appellant’s representative submits, no attempt by the decision-maker to obtain additional medical evidence, either through obtaining a report from the appellant’s GP or submitting the appellant to an examination by an EMP.

41.	It is perhaps unusual that the Department did not refer the appellant for examination by an EMP or seek additional medical evidence from, perhaps, the appellant’s GP.  It is, of course, for a decision-maker to adduce whatever evidence he/she considers to be necessary to ground any decision which is made.  The role of the appeal tribunal, however, is to decide whether the decision made by the decision-maker was correct, and in so doing, the appeal tribunal has to be satisfied that it has all of the evidence which it requires to decide whether the decision under appeal was correct.

42.	An appeal tribunal has the legislative power, of course, under regulation 51(4) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, to adjourn an appeal tribunal of its own motion.  Such an adjournment might be for the production of additional evidence.  A decision by an appeal tribunal as to whether or not to adjourn is one within its own judicial discretion.

43.	As was indicated by the Mrs Commissioner Brown at paragraph 16 of C6/05-06(IB):

“I do not consider that the tribunal need even consider adjourning unless there is something to indicate that the appeal should not be heard on the papers.  It therefore follows that unless there is some such indication the tribunal need not consider adjourning and need not refer to having considered adjourning … If there is no indication that determination on the papers would not lead to a fair hearing the tribunal need not adjourn nor even consider adjourning.”

44.	In the instant case, I am of the view that the appeal tribunal’s decision to proceed to determine the appeal on the basis of the evidence before it was rational, and one which it was entitled to make.

	The availability of the surveillance evidence

45.	At the oral hearing of the application for leave to appeal to the Social Security Commissioner, the appellant’s representative challenged the procedures under which the surveillance evidence was made available to him, as the appellant’s representative.  In relation to this submission, the appellant’s representative referred to the decision of the Social Security Commissioner in Great Britain in CIS/1481/06 and the DMG Memo Vol 1/76.

46.	I have noted the contents of DMG Memo Vol1/76, which was issued following the publication of the decision of the Commissioner in Great Britain in CIS/1481/06.  That guidance is supplemented by the relevant paragraphs in the Code of Appeal Procedures, copies of which have been provided to me.  It is essential, in my view, that the guidance contained in that documentation is adhered to by decision-makers and other Departmental officials, particularly where surveillance authorisation is challenged in appeal proceedings.  It is also vital all of the evidence relating to surveillance, including copies of the video, is made available to the appellant and any representative of the appellant.

47.	In the instant case, I note that the appellant was interviewed under caution in the presence of his solicitor on 31 July 2006.  At that interview he was shown a copy of the video evidence on which the Department was seeking to rely.  On the day of the substantive oral hearing of the appeal, the appellant was represented by a different representative, who submitted that he was only able to view the video evidence on the day of the oral hearing itself.  It is clear that the appellant was aware of the existence of the relevant video evidence in advance of the oral hearing of the appeal and, in any event, the video is of short duration that viewing it on the day of the oral hearing should not have presented any difficulties for the appellant’s representative.  I would repeat, however, that the guidance contained in DMG Memo Vol 1/76 should be adhered to in all such cases.

	Disposal

48.	The decision of the appeal tribunal dated 20 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.

49.	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.

50.	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 15 August 2006, in which a decision-maker of the Department decided that an earlier decision of the Department, dated 19 November 1998, should be superseded.  The decision dated 19 November 1998 had made an award of an entitlement to the higher rate of the mobility component and the middle rate of the care component of DLA from and including 14 January 1999.  The decision dated 15 August 2006 disallowed entitlement to both components of DLA from and including 28 March 2006;

(ii)	the Department has provided notification that the appellant is presently the subject of an award of the lowest rate of the care component of DLA from 24 February 2009 to 23 February 2011.  The appeal tribunal is directed to take this award 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

17 November 2010