MMcE-v-Department for Social Development (DLA) [2010] NICom 72

 			Decision No: C47/10-11(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 her entitlement to disability living allowance (DLA) remains to be determined by another appeal tribunal. In accordance with the guidance set out below, the newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal.  

Background

8.	On 29 January 2009 a decision-maker of the Department issued a decision which superseded an earlier decision of the Department dated 7 September 1995. The earlier decision of the Department had decided that the applicant was entitled to the higher rate of the mobility component and the middle rate of the care component of DLA from and including 23 April 1992. The decision of 29 January 2009 also decided that the applicant was not entitled to DLA from and including 29 January 2009. 

9.	A letter requesting a reconsideration of the decision dated 29 January 2009 was received in the Department on 27 February 2009. An appeal was received in the Department on 25 March 2009 but was not signed. On 9 April 2009 the decision dated 29 January 2009 was reconsidered but was not changed. A signed letter of appeal was received in the Department on 7 May 2009.

10.	The appeal tribunal hearing took place on 18 August 2009. The appellant was present and was represented. The Department was represented. The appeal tribunal disallowed the appeal, and confirmed the decision dated 29 January 2009. 

11.	On 8 September 2009 further correspondence, which included further medical evidence, was received in The Appeals Service (TAS). On 9 September 2009, a clerk to TAS wrote to the appellant’s general practitioner (GP), in the following terms:

‘I acknowledge receipt of your correspondence which was received in The Appeal [sic] Service on 08/09/2009.

Copies have been made and have been distributed to all parties to the proceedings and will be included in the documents to be placed before the Tribunal.

If you require any further information in relation to this letter please do not hesitate to contact me on the above address or telephone number.’

12.	The reference to the date of 8 September 2009 in this correspondence suggests that the source of the further correspondence which had been received in TAS on that date had been the appellant’s GP.

13.	The content of the second paragraph of the letter from the clerk is difficult to understand, in the context of the proceedings to that date. The appeal tribunal hearing had taken place on 18 August 2009. How then could correspondence received on 8 September 2009 be placed before the appeal tribunal?   

14.	In any event, the further medical evidence, received on 8 September 2009, was placed before the legally qualified panel member (LQPM), with a request for the LQPM to indicate what further action was appropriate. On 18 September 2009 the LQPM completed a Form AT10(dir) to the effect that the ‘… decision remains unchanged.’

15.	On 25 September 2009 an application for leave to appeal to the Social Security Commissioner was received in TAS. On 10 November 2009 the application for leave to appeal was refused by the LQPM.

Proceedings before the Social Security Commissioner

16.	On 11 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. On 25 January 2010 observations were sought from Decision Making Services (DMS) and these were received on 16 February 2010. DMS opposed the application. Observations were shared with the applicant on 3 March 2010. On 20 March 2010 a further submission was received from the appellant’s aunt. The further submission was shared with DMS on 8 April 2010. On 23 April 2010 further correspondence was received from DMS in which they indicated that they had no further comments 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.	As was noted above, the further medical evidence, received on 8 September 2009, was placed before the LQPM, with a request for the LQPM to indicate what further action was appropriate. On 18 September 2009 the LQPM completed a Form AT10(dir) to the effect that the ‘… decision remains unchanged.’

20.	In my view there are two problematic aspects to the course of action undertaken by the LQPM. 

21.	Firstly, the receipt of the further medical evidence, following the appeal tribunal hearing, should have led the LQPM to consider what the appellant’s intentions were in providing the additional medical evidence. It is not clear whether the appellant was submitting that the additional medical evidence was evidence which should have been before the appeal tribunal. In such circumstances, the LQPM should have considered whether the receipt of the additional medical evidence could be treated as an application to have the decision of the appeal tribunal set aside, under regulation 57 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended. 

22.	Regulation 57(1) provides that: 

‘57.—(1) On an application made by a party to the proceedings, a decision of an appeal tribunal made under a relevant statutory provision or the Child Support Order may be set aside by a legally qualified panel member in a case where it appears just to set the decision aside on the ground that—

(a) a document relating to the proceedings in which the decision was made was not sent to, or was not received at an appropriate time by, a party to the proceedings or the party’s representative or was not received at an appropriate time by the person who made the
decision; or

(b) a party to the proceedings in which the decision was made or the party’s representative was not present at a hearing relating to the proceedings.’

23.	Clarification of the appellant’s true intentions in providing the additional medical evidence could have been easily achieved through a direction to notify the appellant of the various post-appeal tribunal hearing applications, including an application to have the decision of the appeal tribunal set aside, and to ask her to make clear what her true intentions were.   

24.	The second and more problematic aspect of the action undertaken by the LQPM on receipt of the additional medical evidence lies in the wording of the decision made in connection with the request from the clerk as to what action was appropriate. Although it is not at all clear, the phrase ‘ … decision remains unchanged…’ might suggest that the LQPM, in isolation from the other members of the appeal tribunal, had read, weighed and assessed the additional evidence, and determined that it would not affect the decision made by the appeal tribunal. The weighing and assessment of evidence in connection with the issues arising in the appeal, is a matter for the appeal tribunal as a whole. 

25.	Concurrent with the procedural error made by the clerk to TAS, in writing to the appellant’s GP in erroneous terms in connection with the additional medical evidence, I am satisfied that there has been a ‘…a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings.’ Accordingly, I find that the decision of the appeal tribunal is in error of law.

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

26.	Having found that there was a procedural irregularity which was capable of making a material difference to the outcome or the fairness of the proceedings, I do not have to consider the appellant’s other grounds for appealing. 

Disposal

27.	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. 

28.	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 29 January 2009, in which a decision-maker of the Department issued a decision which superseded an earlier decision of the Department dated 7 September 1995. The earlier decision of the Department had decided that the applicant was entitled to the higher rate of the mobility component and the middle rate of the care component of DLA from and including 23 April 1992. The decision of 29 January 2009 also decided that the applicant was not entitled to DLA from and including 29 January 2009. 

(ii)	the Department is directed to provide details of any subsequent claims to DLA 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

!0 August 2010