GFS-v-Department for Social Development (DLA) [2010] NICom 79
Decision No:  C50/10-11(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 27 April 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 27 April 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 22 October 2008 a decision-maker of the Department decided that there were grounds to supersede an earlier decision of the Department, dated 2 March 2007.  The decision dated 2 March 2007 had awarded an entitlement to the higher rate of the mobility component and the middle rate of the care component of DLA from and including 14 December 2006.  The decision dated 22 October 2008 removed entitlement to DLA from and including 22 October 2008.

9.	An appeal against the decision dated 22 October 2008 was received in the Department on 28 October 2008.  The appeal tribunal hearing took place on 27 April 2009.  The appellant was present and was represented.  The Department was represented by a presenting officer.  The appeal tribunal disallowed the appeal, and confirmed the decision dated 22 October 2008.

10.	On 26 June 2009 an application for leave to appeal to the Social Security Commissioner was received in The Appeals Service (TAS).  On 30 June 2009, the application for leave to appeal was refused by the legally qualified panel member (LQPM).

	Proceedings before the Social Security Commissioner

11.	On 30 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.

12.	On 22 September 2009 observations were sought from Decision Making Services (DMS) and these were received on 15 October 2009.  DMS opposed the application on the grounds submitted by the applicant.  Observations were shared with the applicant on 4 November 2009.  On 16 March 2010 DMS were asked to provide further observations on a specific question identified by the Social Security Commissioner.  The further observations were received on 29 March 2010 and were shared with the appellant on 8 April 2010.

	Errors of law

13.	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.

14.	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 report of the Examining Medical Practitioner

15.	As part of the decision-making process giving rise to the decision under appeal, the appellant was examined by an examining medical practitioner (EMP).  In the application for leave to appeal to the Social Security Commissioner, the applicant has cited, as one of the grounds on which she submitted that the decision of the appeal tribunal was in error of law that an assessment undertaken by the EMP was unfair.  More specifically, the appellant has submitted that parts of the examination were not performed in the proper manner; that the examination was perfunctory; that she was not asked questions which were specific to her medical condition; and that she was ignored.

16.	In her letter of appeal, the appellant indicated that she was insisting that the EMP who had conducted the examination be present at the oral hearing of her appeal.  The appellant also forwarded to TAS a copy of a letter of complaint which she made about the EMP, and the Department, as part of the appeal submission added correspondence concerning the complaint about the EMP, and the outcome of an investigation into that complaint.  In summary, the appellant was informed that the EMP had appeared ‘… to have covered all relevant issues.’

17.	In the record of proceedings for the appeal tribunal’s decision, it is recorded that the presenting officer of the Department made the following submission:

‘… on 25.09.08 the Department sent out an Examining Medical Practitioner.  Based on his clinical findings, medical opinion, etc. the award was removed.  She complained against the Examining Medical Practitioner but it was not upheld.  So it is accurate and the decision is correct.’

18.	In the statement of reasons for the appeal tribunal’s decision with respect to the care component of DLA, the appeal tribunal has noted that the first issue for consideration was whether the decision-maker of the Department, on 22 October 2008, had grounds to supersede the earlier decision of the Department dared 2 March 2007.  In deciding that the decision-maker did have grounds, the appeal tribunal has put forward, as one of three reasons, that:

‘Appellant did not describe any attention or supervision or cooking needs to the Examining Medical Practitioner on 25.09.08 and his opinion was that she had no attention, cooking or supervision needs, there was no risk of self-harm or self-neglect and she was the full-time carer for her mother.’

19.	The appeal tribunal then went on to consider whether the appellant had any entitlement to the care component of DLA.  It recorded that:

(a)	Although she did complain formally about the Examining Medical Practitioner, the complaint was not upheld.

(b)	The Examining Medical Practitioner says and we accept, ‘pale looking.  Handles paperwork.  Neat/tidy.  Good rapport.  Not psychotic.  Well oriented.  No depression/anxiety.  No shortness of breath, cyanosis or heart failure.  Pulse 70.  Blood pressure 125/80.  Normal heart/chest.  Good function.  No underuse/wasting.  Some swelling fingers/knees/ankles (help with medication).  Mild crepitus knee.  No effusion noted.  Discomfort spine – no pain/spasm/deformity.  Straight leg raising 80 right- left.  No neurological/reflexes (deficit).  Diagnosis – small loss of function.  No wasting/underuse.  Callused feet.’

20.	In the statement of reasons for the appeal tribunal’s decision with respect to the mobility component of DLA, the appeal tribunal has noted that the first issue for consideration was whether the decision-maker of the Department, on 22 October 2008, had grounds to supersede the earlier decision of the Department dared 2 March 2007.  In deciding that the decision-maker did have grounds, the appeal tribunal has put forward, as one of four reasons, that:

‘The Examining Medical Practitioner’s opinion was that she could walk with a limp, with steady balance, with no aids, slowly but with no halts and no severe discomfort ½ mile.  And no guidance or supervision.’

	The appeal tribunal then went on to consider whether the appellant had any entitlement to the mobility component of DLA. It recorded that:

‘… (b)	The Examining Medical Practitioner says she can in a reasonable time and manner without severe discomfort and without risk from exertion walk ½ mile.’

21.	It is clear, therefore, that the appeal tribunal was relying on the report of the examination conducted by the EMP, as part of its reasons for concluding that:

(i)	the decision-maker of the Department, on 22 October 2008, had grounds to supersede the earlier decision of the Department dared 2 March 2007; and

(ii)	the appellant did not have any entitlement to either the care or mobility components of DLA.

22.	In R3/01(IB)(T) a Tribunal of Commissioners considered the proper approach to be undertaken by appeal tribunals where the appellant has made a complaint about aspects of a medical report prepared by a medical officer of the Department.  At paragraphs 19 and 20, the Commissioners stated:

‘19.	In general terms we would recommend to Tribunals the practice of identifying the issues which are specifically and expressly or by clear implication raised by the appeal letter.  Often there will be no specific issues raised other than that the claimant disagrees with the decision or considers it to be wrong with no reasons given.  In other cases grounds of complaint will be put forward but will be worded in vague or very general terms.  For example, that the time allowed was insufficient or that the doctor concerned lacked competence.  In all such cases the Tribunal by hearing the case will adequately deal with the appeal.  That was not so in this case.  Here very specific issues were raised.

20.	Whether or not a Tribunal accepts a claimant’s representations on an Examining Doctor’s report, whether it considers that any further information is necessary or whether an Examining Doctor should be asked for comment are all matters within a Tribunal’s province and a Tribunal has considerable discretion in this matter.  However, here it appears that issues raised expressly by the claimant were ignored.  It may be that in this case the Tribunal did not place any reliance whatsoever on the Examining Doctor’s report.  It may be that it rejected the claimant’s contentions.  We have no means of knowing.  We consider that in this case, when such very specific issues in relation to the report have been raised, the Tribunal should have commented on them in some manner.  We set the decision aside for the reason that it did not deal with this issue and the decision was not therefore understandable.’

23.	In both her letter of appeal, and in additional correspondence, had raised specific issues with the conduct of the examination by the Examining Medical Practitioner, and had made a complaint to the Department about the conduct of the medical examination.  In the record of proceedings for the appeal tribunal hearing, the Departmental presenting officer is recorded as having stated:

‘She complained about the Examining Medical Practitioner but it was not upheld. So it is accurate and the decision is correct.’

	In fact, the correspondence received from the Department, in response to the complaint made by the appellant, simply states that the examining medical practitioner’s ‘… report appears to have covered all relevant issues…’ and then makes reference to the fact that the decision on entitlement to benefit is not made by the doctor who carried out the assessment.  Against that background it is difficult to see how it could be concluded both that the complaint had not been upheld that, accordingly, the report was ‘accurate’.

24.	The appeal tribunal placed a clear reliance on the report of the examination conducted by the EMP, as part of its reasons for concluding that the decision-maker of the Department, on 22 October 2008, had grounds to supersede the earlier decision of the Department dated 2 March 2007; and that the appellant did not have any entitlement to either the care or mobility components of DLA.  In addition, it accepted, without raising the matter with the appellant or her representative, the submission from the Departmental presenting officer that the complaint was not upheld.

25.	Applying the principles from R3/01(IB)(T), I conclude that the appeal tribunal, as good practice, should have explored in greater detail with the appellant, the specific issues which she was raising in connection with the report of the examination conducted by the examining EMP.  Those were issues which were specifically raised in the letter of appeal.  It should also have addressed her submission, also contained in the letter of appeal, that the EMP should have been present at the oral hearing of her appeal.

26.	As was explained in R3/01(IB)(T), whether or not an appeal tribunal accepts a claimant’s representations on a medical, whether it considers that any further information is necessary or whether an EMP should be asked for comment are all matters within an appeal tribunal’s province and an appeal tribunal has considerable discretion in this matter.  However, here, as in R3/01(IB)(T), it appears that issues raised expressly by the claimant were not addressed in sufficient detail.

	The appeal tribunal’s reasoning in respect of entitlement to the Lower rate of the Mobility Component of DLA

27.	The appeal tribunal, in the statement of reasons for the mobility component of DLA has recorded:

‘… 2	The second issue is what rate of the Mobility Component is appropriate if any. We think none is because

(a)	She can drive a car – no guidance or supervision …’

28.	In C12/08-09(DLA), I said the following, at paragraphs 77 to 78:

‘77.	Additionally, the ability to drive, even on familiar routes, is evidence of clear headedness and competency which is relevant to the ability to walk on unfamiliar routes without guidance and supervision.  In R1-07(DLA), at paragraph 9, Mrs Commissioner Brown stated that:

	‘I consider the Department’s submission to be correct in that the tribunal concluded that the ability to plan a journey, drive a car and therefore react to road conditions was indicative of clear headedness and competency.  Such clear headedness and competency is a matter which is obviously relevant to the ability to walk on unfamiliar routes without guidance or supervision.  I consider the Department to be correct that it was the possession of those abilities upon which the tribunal relied, not the claimant’s ability to use familiar routes.  When driving no matter whether a route is familiar or not there can be varying traffic conditions, emergency situations, pedestrians etc.  The ability to drive even on familiar routes is evidence of clear headedness and competency.  It is quite obvious from the tribunal’s findings, where it specifically referred to the ability to walk on unfamiliar routes, that it has not misinterpreted the test for the lower rate of the mobility component.  It has merely used the evidence of driving as showing clear headedness and competency indicative of ability to walk unsupervised and unaccompanied.’

78.	Once again, therefore, the ability to drive on familiar routes, such as to and from the place of employment, can and should be taken into account in assessing the ability to walk without guidance or supervision.’

29.	It is, in my view, a leap too far from the principle that an ability to drive on familiar routes can and should be taken into account in assessing the ability to walk without guidance or supervision to the direct assertion, in the instant case, that an ability to drive necessarily means that an individual does not require guidance and/or supervision while walking outdoors on routes which are not familiar.

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

30.	Having found that the decision of the appeal tribunal is in error of law on the basis of the reasoning set out above, I do not have to consider the appellant’s other grounds for appealing.  I would indicate, however, that I would not have found the decision of the appeal tribunal to be in error of law on some of the other grounds cited by the appellant, particularly where the appellant has submitted that the oral hearing of the appeal was unfair.

	Disposal

31.	The decision of the appeal tribunal dated 27 April 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 22 October 2008 in which a decision-maker of the Department decided that there were grounds to supersede an earlier decision of the Department, dated 2 March 2007.  The decision dated 2 March 2007 had awarded an entitlement to the higher rate of the mobility component and the middle rate of the care component of DLA from and including 14 December 2006.  The decision dated 22 October 2008 removed entitlement to DLA from and including 22 October 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);

(ii)	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

26 August 2010