KB-v-Department for Social Development (DLA) [2010] NICom 21
Decision No:  C1/09-10(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 17 December 2008

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	Having considered the circumstances of the case and any reasons put forward in the request for a hearing, I am satisfied that the appeal can properly be determined without a hearing.

2.	The decision of the appeal tribunal dated 17 December 2008 is in error of law.  The error of law identified will be explained in more detail below.

3.	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.

4.	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.

5.	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.

6.	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), 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

7.	On 20 January 2008, a decision-maker of the Department decided that there were no grounds to supersede an earlier decision of the Department dated 9 January 2002.  The decision dated 9 January 2002 had made an award of entitlement to the lower rate of the mobility component and the middle rate of the care component of DLA from and including 16 November 2001.  A letter of appeal against the decision dated 20 January 2008 was received in the Department on 6 February 2008, and was followed by additional correspondence on 15 February 2008 and 26 February 2008.

8.	An appeal tribunal hearing took place on 17 December 2008.  The appellant was not present but the Department was represented by a Departmental presenting officer.  The appeal tribunal disallowed the appeal and substituted its own decision to the effect that the appellant was not entitled to either component of DLA from and including 12 December 2007.

9.	On 18 February 2009 an application for leave to appeal to the Social Security Commissioner was received in The Appeals Service (TAS) from the appellant’s representative.  On 25 February 2009, the application for leave to appeal was granted by the legally qualified panel member (LQPM).  In granting leave to appeal, the LQPM noted as the relevant point of law that ‘… specified in notice of appeal’.

	Proceedings before the Social Security Commissioner

10.	On 1 April 2009 the appeal to the Social Security Commissioner was received in the Office of the Social Security Commissioners and Child Support Commissioners (OSSC).

11.	On 23 April 2009 observations were sought from Decision Making Services (DMS) and these were received on 21 May 2009. DMS supported the appeal on certain of the grounds cited by the appellant’s representative.

12.	On 26 June 2009 details of a further award of entitlement to DLA were received in OSSC from the appellant’s representative.

	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.”

	The error of law in the instant case

	The removal of the existing award

15.	As was noted above, the decision under appeal was a decision of the Department, dated 20 January 2008, which decided that there were no grounds to supersede an earlier decision of the Department dated 9 January 2002.  The decision dated 9 January 2002 had made an award of entitlement to the lower rate of the mobility component and the middle rate of the care component of DLA from and including 16 November 2001.  Accordingly, the appellant was coming to the appeal tribunal appealing against a decision which incorporated an existing award.

16.	Part of the reason for the delay in producing the decision in this appeal was because that in another appeal I was addressing issues which might have relevance to this particular appeal.

17.	In C15/08-09(DLA), I gave detailed guidance to appeal tribunals on the approach to be taken in cases where the decision under appeal incorporates an existing award.  At paragraphs 61 to 66, and following a review of the existing authorities, I stated:

‘61.   The principles which emerge from these cases can be summarised as follows:

(i)	an appeal tribunal is entitled to make a decision less favourable to the claimant than the decision under appeal;

(ii)	an appeal tribunal is entitled to supersede (or revise) the original decision on a ground which leads to a decision less favourable to the claimant than the decision under appeal;

(iii)	a less favourable award may also be made by an appeal tribunal which is considering an appeal against a decision of the Department on a renewal claim;

(iv)	the discretion of the appeal tribunal to make a less favourable decision is one to be exercised judicially, taking into account all relevant circumstances;

(v)	if a statement of reasons for the appeal tribunal’s decision is given, then the reasons for the exercise of the discretion should be set out;

(vi)	the appeal tribunal must be satisfied that there has been compliance with the requirements of Article 6 of the European Convention on Human Rights and of natural justice;

(vii)	compliance with the requirements of Article 6 includes the requirement that the appellant has had sufficient notice of the appeal tribunal’s intention to consider making a decision which is less favourable, in order to enable the appellant properly to prepare his case;

(viii)	the appellant is entitled to withdraw his appeal any time before the appeal tribunal’s decision and this power may also be material to what Article 6 and the rules of natural justice demand;

(ix)	appeal tribunals should refrain from making decisions less favourable to appellants than the decisions being challenged, except in the most obvious cases, or after an appropriate adjournment;

(x)	the LQPM of the appeal tribunal is at liberty to draw any doubts about the validity of the decision to the Department’s attention in the decision notice and can arrange for the parties to be sent a copy of the record of proceedings without them having to request it.  That action would enable the Department to consider a supersession or revision (but see below).

62.	The last principle was derived from the decision of Commissioner Rowland in CDLA/884/2008.  With respect to the Commissioner, I do not agree with his conclusion.  I would state the relevant principle to be:

	(x)	Where the appeal tribunal has any doubt concerning the validity of the decision under appeal, where that decision incorporates an existing award, it is under a duty to undertake a full investigation of the legitimacy of the existing award and determine whether that award is correct.

63.	Why would I reformulate this principle?  Elsewhere in R(IB)2/04, the Tribunal of Commissioners in Great Britain had noted that

	‘32.  Appeal tribunals are part of the adjudication system which is designed to ensure that claimants receive neither more nor less than the amount of social security benefit to which they are properly entitled (as opposed to the benefits to which the parties may be contending that they are entitled).  There is a legitimate public interest in ensuring such a result.  The jurisdiction has thus been described as inquisitorial or investigatory (see, in particular, R(IS) 5/93 and the authorities cited in paragraph 14 of that Commissioner’s decision).  Such a jurisdiction generally extended to include a duty on the tribunal to consider and determine questions which are necessary to ascertain the claimant’s proper entitlement, whether or not they have been raised by the parties to an appeal (R(SB) 2/83).  In our judgment, in the light of the above and the reasons given by Mr Commissioner Jacobs in paragraphs 17 and 18 of decision CH/1229/2002, “raised by the appeal” in section 12(8)(a) is to be interpreted as meaning actually raised at or before the hearing by at least one of the parties to the proceedings.  Section 12(8)(a) therefore does not limit the overall jurisdiction of an appeal tribunal, but grants it a discretion as to the extent to which it exercises this inquisitorial role.  That discretion must be exercised judicially.  An appeal tribunal is under a duty to consider whether or not to exercise the discretion where the circumstances could warrant it and would err in law by failing to do so or by failing to give adequate reasons for its conclusion.  However, it will not err in law if, following a proper judicial exercise of its discretion, it decides not to consider issues not raised by the parties to the appeal.’

64.	In my view, the duty on an appeal tribunal to ensure that a claimant ‘receives neither more nor less than the amount of social security benefit to which they are properly entitled’ includes a requirement to undertake a full investigation of the validity of an existing award and determine whether that award is correct.  It is not sufficient, in my view, to leave the issue in abeyance, and undertake an artificial remission to the Department.

65.	Where I do agree unequivocally with Commissioner Rowland is that the exercise of the judicial discretion to make a decision less favourable to the appellant and, with that discretion, the requirement to ensure that the appellant has had sufficient notice of the appeal tribunal’s intention to consider making a decision which is less favourable, in order to enable the appellant properly to prepare his case, leaves the appeal tribunal in a difficult position.  In this regard, I am of the view that it is regrettable that the requirement to ensure that the appellant has sufficient notice of the potential for the making of a less favourable award has been portrayed as the issue of a ‘warning’.  Warning is a negative noun.  It suggests risk and invokes a defensive response.

66.	Further, the practice appears to have emerged of the giving of a warning at the outset of an appeal tribunal hearing, when the appeal tribunal has formed the view that it may exercise its discretion to make an award which is less favourable to the appellant.  Where the appellant is unrepresented the information that an existing award, which he or she may have thought could not be challenged, may be diminished or removed by the appeal tribunal may come as a considerable surprise.  This is despite the fact that the appeal submissions prepared by the Department, and to which the appellant has had access in advance, as in the instant case, makes reference to that possibility.  As Commissioner Rowland has observed, there is a considerable danger, when using the language of warning, at the outset of an appeal tribunal hearing, of giving the impression of having prejudged the case.’

At paragraph 77 I stated:

	‘77.  Accordingly, in my view, it is safest and best practice for an appeal tribunal in each case where the decision under appeal incorporates an existing award:

	(i)	to explain to the appellant that the appeal tribunal is under a duty to consider all of the evidence which is before it, and to ensure that the decision under appeal to it is correct;

	(ii)	to outline to the appellant the powers available to the appeal tribunal which are:

•	to make a decision which is more favourable to the appellant;

•	to confirm the decision of the Department with respect to the existing award; and

•	to make a decision which is less favourable to the appellant.

	(iii)	to outline to the appellant, the options available to him, which are:

•	to continue with the appeal tribunal hearing;

•	to withdraw the appeal at any stage prior to its determination;

•	to seek a brief adjournment to consider the implications of what has been described, or a longer adjournment to seek further legal advice in light of that description.

	(iv)	to ensure that all explanations are provided in appropriate terms and language, and to be satisfied that the appellant understands the relevance and context of the powers of the appeal tribunal and the options available to him;

	(v)	to ensure that a record of the explanations given by the appeal tribunal, in  respect of its powers and the appellant’s options is entered into the record of proceedings for the appeal tribunal’s hearing;

	(vi)	to ensure that where a statement of reasons for the appeal tribunal’s decision is requested and given that the reasons for the exercise of the discretion to make a decision which is less favourable are set out;

	(vii)to ensure that in a case determined on the papers alone and, where the appeal tribunal is considering exercising its judicial discretion to make a decision which is less favourable to the appellant, that it is satisfied that an appellant has had sufficient notice of the appeal tribunal’s intention to consider making a decision which is less favourable, which will be likely to involve adjourning the appeal, and providing an appropriate description of the appeal tribunal’s powers and the appellant’s options in light of those powers.’

Earlier, at paragraph 74, I had stated:

		‘While the procedure which is being recommended may seem detailed and cumbersome, it is submitted that it should not take an appeal tribunal long to set out its powers and options, nor to record the operation of the procedure in the relevant appeal tribunal documentation.’

18.	At paragraph 39 of DSS-v-Department for Social Development (DLA) [2010] NICom 03 (C3/10-11(DLA)), I said the following about paragraph 74 of C15/08-09(DLA),:

‘Those comments were made in the context of the appeal tribunal setting out its powers and the appellant’s to the appellant at an oral hearing where the appellant is present, or in cases determined on the papers alone.  The comments are equally applicable to cases where the appellant has failed to attend an oral hearing of the appeal, despite having given an indication that he or she would be present.’

19.	How did the appeal tribunal in the instant case apply the principles set out in paragraph 77 of C15/08-09(DLA)?

20.	I would note that I am aware that TAS issues to all appellants, as part of the paperwork associated with the appeal, an information leaflet which sets out, amongst other things, the powers of the appeal tribunal.

21.	There were two separate hearings in respect of the appeal proceedings brought by the appellant.  The appellant did not attend any of those hearings, through her own choice.

22.	The first oral hearing of the appeal took place on 17 September 2008.  The appellant was not present, and neither was her nominated representative.  The appeal was adjourned, and the following reasons for the adjournment were noted:

‘Claimant had requested Tribunal to proceed in her absence.  However her GP records, which had been requested, had not been received and it would be unjust to proceed without them.

Claimant should be aware that her existing award may be at risk and it may be in her interest to attend the hearing’

23.	It seems to me that the appeal tribunal was alert to the requirement that the appellant had to be made aware that what she might have considered to be a dormant issue in the appeal – her existing entitlement to the to the lower rate of the mobility component and the middle rate of the care component of DLA – had now become a live issue through the appeal tribunal’s initial consideration of the appeal.

24.	As indicated above, I am of the view that the principles set out in sub-paragraph (vii) of paragraph 77 of C15/08-09(DLA) are equally applicable to oral hearings where the appellant is not in attendance and, as noted above, where removal of an existing award might be the potential outcome of the appeal tribunal hearing, where the validity of the award has been considered by the appeal tribunal, or raised by a Departmental presenting officer.

25.	The second and substantive oral hearing of the appeal took place on 17 December 2008.  Once again the appellant was not in attendance and neither was any representative.  The Department was represented by a Departmental presenting officer.  In the statement of reasons for the appeal tribunal’s decision, there is a reference to the previous adjournment of the appeal, the stated reasons for the adjournment and stated reasons why the appeal tribunal decided to proceed in the absence of the appellant.

26.	It is important to note that the appellant did not attend any of the hearings in connection with this appeal.  In these circumstances it was important for the appeal tribunal to ensure, through its issued terms of adjournment and further directions, that it provided an appropriate description of the appeal tribunal’s powers and the appellant’s options in light of those powers.

27.	In my view, the issued reasons for the adjournment and further directions did not provide an appropriate description of the appeal tribunal’s powers and the appellant’s options in light of those powers.  Additionally, sufficient reliance could not be placed on the content of the TAS information leaflet, or the expectation that this was read and/or understood by the appellant.  Accordingly, the principles set out in paragraph 77 of C15/08-09(DLA) have not been adhered to.  The second and final hearing of the appeal proceeded without the appellant being present, albeit through her own choice.  Although, the statement of reasons for the appeal tribunal’s decision indicates that the reasons for the adjournment of the appeal tribunal on 17 September 2008 had drawn the attention of the appellant to the fact that the existing award had been raised as a specific issue arising in the appeal, in my view, the appellant had not been fully and adequately informed of the appeal tribunal’s powers and his own options in light of those powers.  Accordingly, I find that the decision of the appeal tribunal is in error of law.

	The supersession issue

28.	The decision under appeal was a decision of the Department, dated 20 January 2008, which decided that there were no grounds to supersede an earlier decision of the Department dated 9 January 2002.  The appeal tribunal disallowed the appeal and substituted its own decision to the effect that the appellant was not entitled to either component of DLA from and including 12 December 2007.

29.	In the decision notices for the appeal tribunal’s decision in respect of both the care and mobility components it is recorded that:

‘It is appropriate to supersede the decision made 9th Jan 2002.’

30.	In C12/08-09(DLA), at paragraphs 33 to 36, I set out the duties of the appeal tribunal with respect to the decision-making process, where the appeal tribunal was considering an appeal involving a decision to supersede or not to supersede:

’33.	Accordingly, the first task of the appeal tribunal was to determine whether the decision-maker, on 24 March 2007, 	had grounds to supersede the earlier decision of the Department, dated 29 November 1996.

34.	If the appeal tribunal determined that the decision-maker, on 24 March 2007, did not have grounds to supersede the decision dated 29 November 1996, then that latter decision would continue to have effect.

35.	If the appeal tribunal determined that the decision-maker, on 24 March 2007, did have grounds to supersede the decision dated 29 November 1996, then the appeal tribunal could have gone on to consider entitlement to benefit, in light of the substantive rules for entitlement to DLA.

36.	Finally, the appeal tribunal was under a duty to determine the effective date from which any supersession decision should take effect.’

31.	In the instant case, the duty of the appeal tribunal was to:

(i)	set out the grounds on which it considered it appropriate to supersede the decision dated 9 January 2002;

(ii)	set out the reasons why it considered the appellant no longer satisfied the conditions of entitlement to DLA; and

(iii)	set out the reasons why the conditions of entitlement were not satisfied from a particular date, that is the effective date of supersession.

32.	In my view, the manner in which the appeal tribunal dealt with the supersession issue is problematic, for two reasons.

33.	Firstly, in R(IB) 2/04, a Tribunal of Commissioners in Great Britain, at paragraph 10(4) indicated that:

‘(4)	It was common ground between Mr Drabble and Miss Lieven – and in our judgment rightly so – that the decision of the Court of Appeal in Wood v. The Secretary of State for Work and Pensions [2003] EWCA Civ 53 (reported as R(DLA) 1/03) is authority for the propositions that:
	(a)	there can be no supersession under section 10 unless one of the grounds for supersession specified in regulation 6 is actually found to exist, and

	(b)	the ground which is found to exist must form the basis of the supersession in the sense that the original decision can only be altered in a way which follows from that ground.

We refer, in particular, to the judgment of Rix LJ (with whom Dyson LJ agreed) (at paragraph 49):

	“`[S]uperseded’ in regulation 6 can only refer to an earlier decision in respect of which a subsequent section 10 decision has been based on one of the regulation 6(2) criteria.  Unless one of those criteria has been established, and, I would suggest, forms the basis of the new superseding decision, a section 10 decision superseding an earlier decision can not even be made.”

Therefore, for example, it would not be permissible to supersede a decision awarding disability living allowance on the ground that the claimant’s condition had worsened, but then to make an award which was less favourable to the claimant than the original one.  The establishment of a ground for supersession does not therefore necessarily put the claimant’s entitlement at large in the sense of empowering the superseding decision-maker to make whatever decision appears to him to be appropriate in the light of the claimant’s current condition.’

34.	In the instant case, in the statement of reasons for the appeal tribunal’s decision with respect to the mobility component of DLA, it is recorded that:

‘… Tribunal had to conclude that there had been a relevant change of circumstances as required by the legislation in that her condition would appear either (a) to have deteriorated to the extent that she was unable to go out (on her statement) or (b) to have improved to the extent that she was managing independently (on the Examining Medical Practitioner’s statement).  Whichever is accepted, there appears to have been a change.  Accordingly, there are grounds to supersede the decision made 9th January 2002.’

35.	The appeal tribunal appear to have identified two possible evidential bases on which it could be determined that there had been a relevant change of circumstances.  The problem is that both are contradictory – one suggests improvement, the other deterioration. Further, and as was noted in R(IB) 2/04, the ground for supersession which is found to exist must form the basis of the supersession in the sense that the original decision can only be altered in a way which follows from that ground.  In the instant case, the outcome decision of the appeal tribunal was to remove the appellant’s entitlement to the lower rate of the mobility component of DLA.  If the appellant’s condition had indeed deteriorated it would not be permissible to make a supersession decision which was less favourable.

36.	In my view, the approach taken by the appeal tribunal to the issue of supersession or, more particularly, how it has recorded that approach in the statement of reasons, is perplexing.  The statement that the Tribunal ‘… had to conclude that there had been a relevant change of circumstances…’ suggests that the appeal tribunal was striving to find a relevant ground because it had decided, separately, that the conditions of entitlement to DLA were no longer satisfied.  Further, the appeal tribunal’s conclusion that ‘… there appears (emphasis mine) to have been a change …’ is less than definitive.  On the basis of its evidential assessment either there has been a change or there has not.  Finally, the suggestion that there could be separate and contradictory changes is equally confusing.

37.	The second way in which the handing of the supersession issue is problematic is the basis upon which the appeal tribunal determined what would be the effective date of supersession.  As was noted above, the outcome decisions of the appeal tribunal are that the appellant is not entitled to either the care or the mobility Components of DLA from and including 12 December 2007.  There is no indication, in the statement of reasons for the appeal tribunal’s decisions of the legal or evidential basis upon which it was decided that the conditions of entitlement were not satisfied from and including 12 December 2007.

38.	As it happens, 12 December 2007 is the date on which the appellant was examined by an examining medical practitioner (EMP).  It may be the case, therefore, that the appeal tribunal decided that the effective date should be from the date of that examination.  It has not, however, indicated any legal or evidential basis for arriving at that conclusion.

39.	Accordingly, I also find that the decision of the appeal tribunal is in error of law, on the basis of the manner in which it addressed the supersession issue.

	The appellant’s other grounds for appealing

40.	In the original application for leave to appeal which was made to the LQPM, the appellant’s representative also submitted that the decision of the appeal tribunal was in error of law in that the appeal tribunal’s reasons for its decision were not adequate.  More particularly, the appellant’s representative submitted that:

(i)	the appeal tribunal misinterpreted a statement from the appellant concerning her ability to go out of doors;

(ii)	the appeal tribunal was wrong to place greater weight on the report from the EMP than a submitted report from a consultant psychiatrist;

(iii)	the appeal tribunal failed to make reference to the evidence contained in the general practitioner records, described at the appeal tribunal hearing by the Departmental presenting officer as indicating ‘…considerable medical problems’ and

(iv)	failing to comment on an obvious error in the EMP report.

41.	In their written observations on the appeal, DMS have supported the further grounds at (i) and (iii) above, have opposed the ground at (ii) and submitted that the error in the EMP report was no more than a slip of a pen and did not validate the overall credibility of the report.

42.	Having found that the decision of the appeal tribunal is in error of law on the basis of the analysis set out above, I have no requirement to comment on the additional grounds set out by the appellant’s representative.  I would indicate, however, that I would support the observations made by DMS on these additional grounds.

	Disposal

43.	The decision of the appeal tribunal dated 17 December 2008 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.

44.	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 20 January 2008, in which a decision-maker of the Department decided that there were no grounds to supersede an earlier decision of the Department dated 9 January 2002.  The decision dated 9 January 2002 had made an award of entitlement to the lower rate of the mobility component and the middle rate of the care component of DLA from and including 16 November 2001;

(ii)	the appellant will wish to consider what was said at paragraph 77 of C15/08-09(DLA) concerning the powers available to the appeal tribunal and the appellant’s options in relation to those powers;

(iii)	the appeal tribunal is to note that the Department has made a further award of entitlement to the middle rate of the care component and the lower rate of the mobility component of DLA from 6 January 2009 to 5 January 2011.  The appeal tribunal is directed to take this subsequent award into account in line with the principles set out in C20/04-05(DLA);

(iv)	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

(v)	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

24 March 2010