SCF-v-Department for Social Development (DLA) [2010] NICom 70

Decision No:  C46/10-11(DLA)

RE:  (A CHILD)

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 26 January 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 26 January 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 the entitlement of the claimant to disability living allowance 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 9 April 2008 a decision-maker of the Department decided that the claimant, represented by his mother and appointee should not have an entitlement to DLA from and including 18 July 2008 on a renewal claim.  There had been at least one previous award of entitlement to DLA.

9.	Following the receipt of a telephone call, and further correspondence, the decision dated 9 April 2008 was reconsidered on 15 May 2008 but was not changed.  An appeal against the decision dated 9 April 2008 was received in the Department on 12 June 2008.  On 26 August 2008 a further report was received in the Department and on 7 October 2008 further correspondence was received from the claimant’s mother.

10.	The appeal tribunal hearing took place on 26 January 2009.  The claimant’s mother and father were present.  There was no Departmental presenting officer present.  The appeal tribunal disallowed the appeal and confirmed the decision dated 26 January 2009.

11.	On 1 June 2009 an application for leave to appeal to the Social Security Commissioner was received in The Appeals Service (TAS).  The application was not signed by the appointee, however, and on 26 June 2009, the legally qualified panel member (LQPM) directed that the application be returned for signature by the appointee.

12.	On 12 June 2009, a further application for leave to appeal to the Social Security Commissioner, now signed by the appointee, was received in TAS.  On 11 July 2009, the application for leave to appeal was refused by the LQPM.

Proceedings before the Social Security Commissioner

13.	On 27 July 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 11 September 2009 observations were sought from Decision Making Services (DMS) and these were received on 6 October 2009.  In these initial observations on the application for leave to appeal, DMS opposed the application on the grounds submitted by the appointee.
14.	Observations were shared with the applicant on 14 October 2009.  On 16 October 2009 a further submission was received from the appointee which was shared with DMS on 3 November 2009.

15.	On 1 December 2009 I requested that DMS provide further observations on the question of the extent to which the reasoning of the appeal tribunal was in conformity with the principles set out in the decision of a Tribunal of Commissioners in Great Britain in R (DLA) 3/06.  In further written observations dated 21 December 2009, DMS submitted that the reasoning of the appeal tribunal did not conform to the principles set out in R (DLA) 3/06 and, accordingly, the decision of the appeal tribunal was in error of law.

16.	These further observations were shared with the appointee on 10 March 2010 who, on 18 March 2010, confirmed that she had no further observations to make.

Errors of law

17.	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.

18.	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?

19.	The conditions of entitlement to the care component of DLA are to be found in section 72(1) of the Social Security Contributions and Benefits (Northern Ireland) Act, as amended.  Section 72(1)(a) provides that:

‘… a person shall be entitled to the care component of a disability living allowance for any period throughout which –

(a)	he is so severely disabled physically or mentally that –

(i)	he requires in connection with his bodily functions attention from another person for a significant portion of the day (whether during a single period or a number of periods); or

(ii)	he cannot prepare a cooked main meal for himself if he has the ingredients;

(b)	he is so severely disabled physically or mentally that, by day, he requires from another person—

(i)	frequent attention throughout the day in connection with his bodily functions; or

(ii)	continual supervision throughout the day in order to avoid substantial danger to himself or others; or

(c)	he is so severely disabled physically or mentally that, at night,—

(i)	he requires from another person prolonged or repeated attention in connection with his bodily functions; or

(ii)	in order to avoid substantial danger to himself or others he requires another person to be awake for a prolonged period or at frequent intervals for the purpose of watching over him.’

20.	The primary conditions of entitlement to the mobility component of DLA are to be found in section 73(1) of the Social Security Contributions and Benefits (Northern Ireland) Act, as amended.  Section 73(1), so far as material, provides that:

‘Subject to the provisions of this Act, a person shall be entitled to the mobility component of a disability living allowance for any period in which he is over the relevant age and throughout which –

(a)	he is suffering from physical disablement such that he is either unable to walk or virtually unable to do so; or

(b)	…

(c)	…

(d)	he is able to walk but is so severely disabled physically or mentally that, disregarding any ability he may have to use routes which are familiar to him on his own, he cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time.’

21.	The meaning of the phrase ‘so severely disabled physically or mentally’ in sections 72 and 73 of the Social Security Contributions and Benefits Act 1992 in Great Britain (the equivalent of sections 72 and 73 of the Social Security Contributions and Benefits (Northern Ireland) Act, as amended) was considered by a Tribunal of Commissioners in R(DLA) 3/06.  At paragraphs 35 to 37, the Tribunal stated:

35.	“Disability” is conceptually distinct from “medical condition”.  “Disability” is entirely concerned with a deficiency in functional ability, ie the physical and mental power to do things.  Of course, a diagnosable medical condition may give rise to a disability.  For example, a condition that inevitably involves the loss of a sense or a limb would give rise to an obvious diminution in functional capacity.  But entitlement to DLA is dependent upon a claimant’s inability to cope with care and mobility without assistance and with his consequent reasonable care and mobility needs; and not upon the diagnosis of any medical condition.  Even if a person has a serious medical condition in the sense that his life is imminently threatened – perhaps some asymptomatic heart condition – that person is not entitled to either component of DLA if the condition has no adverse impact on his ability to care for himself and be mobile without assistance.  Conceptually and in ordinary language usage, “disability” cannot be equated with “medical condition”; and a “severe disability” is not the same as a “serious medical condition”.

36.	Contrary to this usage, do the statutory provisions of sections 72 and 73(1)(d) require “disability” to mean “medical condition”?  The requirement of these provisions is that the claimant is “so severely disabled … that” certain consequences follow.  This clearly does not and cannot mean “having a serious medical condition”.  If severity of disability is measured by reference to the seriousness of the medical condition, rather than to the effects in terms of care needs, the provisions could not achieve their purpose of correlating entitlement to care needs.  Furthermore, as the Chief Commissioner recognised in the formulation of his question in R(A) 2/92, in context the equation of “disability” with “medical condition” requires a severance of the statutory language, which would deprive the provision of any criteria by which “severity” could be assessed.  Indeed, the very use of the word “severe” is an indication that “disability” is a reference to some functional deficiency (see paragraph 41 below).

37.	Sections 72 and 73(1)(d) require a claimant to be “disabled physically or mentally”, and provide no further definitions or guidance.  If there had been an intention to require proof of a diagnosed or diagnosable medical condition, then the provisions could have made this clear, as they do in other benefit contexts (eg the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 (SI 1985/967).  We were also referred to section 1(1) of the Disability Discrimination Act 1995 which provides “[s]ubject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities”.  Schedule 1 provides a number of detailed provisions that supplement section 1, including in paragraph 1 the following: “Mental impairment’ includes an impairment resulting from or consisting of a mental illness only if the illness is a clinically well-recognised illness”.  As Mr Maurici submitted, had Parliament intended to adopt a similar restricted approach to the concept of “disability” in the 1992 Act, it could and no doubt would have done so.’

22.	The key phrase in the extract cited above is ‘… entitlement to DLA is dependent upon a claimant’s inability to cope with care and mobility without assistance and with his consequent reasonable care and mobility needs; and not upon the diagnosis of any medical condition.’

23.	In the instant case, the record of proceedings for the appeal tribunal hearing runs to four A4 pages, and from this it is clear that the appeal tribunal went about the forensic evidence-gathering process in a careful and thorough manner.

24.	The statements of reasons for the appeal tribunal’s decisions in respect to both the mobility and care components of DLA are the same.  The statements of reasons themselves run to nine A4 pages, suggesting, at first glance, that there has been a parallel careful and analytical weighing and assessment of the evidence, fact-finding and reasoning.  On closer examination, however, eight of the nine pages are taken up with a rehearsal of the evidence which was before the appeal tribunal, rather than any assessment of that evidence.  The run-through of the evidence included the evidence from the appointee and the father of the claimant, the evidence from the general practitioner notes which were made available to the appeal tribunal, and the detailed evidence which had been made available to the appeal tribunal by the appointee.

25.	It is only when one arrives at the last of the nine pages that the reasoning of the appeal tribunal becomes apparent.  The appeal tribunal stated:

‘The Tribunal in hearing the evidence and in reviewing the medical reports feel that there is no evidence that (the claimant) at the moment suffers from any form of medical disorder both mental or physical which would justify the award of Disability Living Allowance.  The parents sought out on their own initiative a report from a doctor in the south who is a qualified paediatrician who confirmed a diagnosis of autism.  However, the method of diagnosis did not seem to comply with the procedures that would be employed within Northern Ireland and the health care system here.  Dr N…. referred to the fact that in Northern Ireland it would be a multidisciplinary team who would come to any conclusion and indeed in 2007 they came to the conclusion that (the claimant) did not suffer from ADHD or any form of autism.  It seems odd to the Tribunal that a doctor acting on his own would come to a different conclusion.  It was noted by the Tribunal though that the parents went seeking a medical diagnosis of autism which they had concluded themselves.

The Tribunal were of the opinion that the medical services in Northern Ireland were to be preferred because these are the experts who would be treating (the claimant) if any medical intervention was required.  It was noted by the Tribunal that the GP in particular was extremely concerned that a very strong anti psychotic drug had been prescribed for (the claimant) without any means of follow up or supervision.

Given the observations of Dr N….. in the latter part of 2008 and the clear reservations expressed by all the medical personnel that have examined (the claimant), the Tribunal were of the opinion that at present there is no evidence that (the claimant) suffers from a mental or physical illness such as ADHD or Aspergers.  Dr N…. has indicated that some of (the claimant’s) behaviours are not necessarily consistent with simply attention seeking but clearly she is reluctant to proceed further without some further engagement with the family.

The Tribunal also noted that the family had been referred to Dr P G… at the family centre in Antrim.  He is a consultant child and adolescent psychiatrist but the family had failed to engage with him.  The Tribunal were not impressed with the fact that (the family’s) reason for refusal to engage was they did not like the previous treatment by Social Services and the Family Centre and preferred the diagnosis given by Dr F…. of autistic spectrum disorder rather than look at other causes for (the claimant’s) behavioural problems.

There was also inconsistent evidence given by (the claimant’s mother) in relation particularly to (the claimant’s) ability to get about outside.

Accordingly the Tribunal were of the opinion that no award of DLA was appropriate in the circumstances.’

26.	From this it can be seen that the appeal tribunal’s reasoning is taken up with a detailed analysis as to whether the applicant had a diagnosed mental or physical condition.  It is not clear why the appeal tribunal undertook such a detailed analysis.  I would say, however, that the reasoning of the appeal tribunal that the claimant could not have an entitlement to DLA because he had no real diagnosis is clearly erroneous.  I would add that the unnecessary concentration on the diagnosis issue is unfortunate as it may give the misleading impression that aspects of the tests for entitlement to DLA are predicated on a claimant having to demonstrate that he or she suffers from a diagnosed medical condition.  It is clear from the reasoning in R(DLA) 3/06 that there is no such condition.

The appointee’s other grounds for appealing to the Social Security Commissioner

27.	Having found that the decision of the appeal tribunal is in error of law on the basis of the failure to apply the principles in R (DLA) 3/06, I do not have to consider the appointees other grounds for appealing.

Disposal

28.	The decision of the appeal tribunal dated 26 January 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.

29.	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 9 April 2008, in which a decision-maker of the Department decided that the claimant, represented by his mother and appointee should not have an entitlement to DLA from and including 18 July 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

6 August 2010