Department for Social Development (DLA) [2010] NICom 106

 				Decision No: C21/10-11(DLA)

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

JMcQ v Department for Social Development

Appeal to a Social Security Commissioner on a question of law from a Tribunal's decision dated 11 November 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 11 November 2008 is not in error of law. Accordingly, the appeal to the Social Security Commissioner does not succeed. The decision of the appeal tribunal to the effect that the appellant is not entitled to either component of disability living allowance (DLA), from and including 10 March 2008, is confirmed.

3.	This decision will come as a disappointment to the applicant but I am obliged, as was the appeal tribunal, to apply the relevant legislative provisions to the facts of the case.

Background

4.	On 12 August 2008, a decision-maker of the Department decided that the appellant was not entitled to DLA from and including 10 March 2008. An appeal against the decision dated 12 August 2008 was received in the Department on 28 August 2008.

5.	In connection with the decision-making process at Departmental level, a medical report had been requested from the appellant’s general practitioner (GP). The medical report was not received in the Department until 12 September 2008.

6.	The appeal was listed by way of a ‘paper’ hearing on 11 November 2008. The appellant had returned Reg 2(i)(d), signed on 2 October 2008, in which he had indicated that he was content for the appeal to proceed without an oral hearing.  The appeal tribunal disallowed the appeal and confirmed the decision dated 12 August 2008. 

7.	On 6 March 2009 correspondence was received in The Appeals Service (TAS) from the appellant in which he indicated that: 

(a)	contrary to what had been said in a telephone conversation, he had not received a copy of the decision of the appeal tribunal; 

(b)	his medical condition had worsened;

(c)	he was being sent by his consultant for an MRI scan; and

(d)	he required to have someone available on a full-time basis to help him.

8.	Subsequently, on 1 April 2009, the front page of ‘Form Comm11’ was received in TAS. Attached to the back of this form was the second page of Form ‘COMM/Setd’. The significance of these forms will be explored in more detail below.  

9.	The received ‘Comm11/Setd’ was placed before the legally qualified panel member (LQPM) of the appeal tribunal as an application for leave to appeal to the Social Security Commissioner.

10.	On 7 April 2009 the application for leave to appeal was rejected by the LQPM. The reason given for the rejection of the application was that ‘Reasons for decision were not sent to the applicant as required by Regulation 58(1)(a)’. The reference to regulation 58(1)(a) is to the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended. 

Proceedings before the Social Security Commissioner

11.	On 21 April 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 (OSSC). On 22 April 2009 the appellant was requested to obtain a copy of the record of proceedings for the appeal tribunal hearing from TAS. 

12.	On 18 June 2009 TAS were asked to provide further details of any correspondence which was sent by TAS to the appellant after receipt of his letter of 6 March 2009. On 23 June 2009 a ‘Case History’ was received from TAS. The detail of that ‘Case History’ will be explored in more detail below. 

13.	On 6 July 2009 observations were sought from Decision Making Services (DMS) and these were received on 23 July 2009. DMS opposed the application on the grounds submitted by the appellant and provided detailed observations on the jurisdiction of the Social Security Commissioner to deal with the matter. Observations were shared with the applicant on 30 July 2009.

14.	On 12 August 2009 further correspondence was received from the appellant which was shared with DMS on 20 August 2009. 

15.	On 12 August 2009 DMS was asked to provide further observations on two specific questions concerning the implications of the appellant’s assertion that he did not receive a copy of the decision notice for the appeal tribunal’s decision. Further observations, in response to the specific questions, were received from DMS on 1 October 2009. 

16.	On 4 May 2010, and following further enquiries and investigations, and the direction of the appellant towards appropriate sources of advice, I determined that I could determine the application for leave to appeal without a hearing. I exercised the power conferred on me by regulation 27 of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999, as amended, and waived the absence of a copy of full written statement of the reasons for the appeal tribunal’s decision as an irregularity. The exercise of this power permitted me to consider the application. I also granted leave to appeal.

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?

The appeal tribunal hearing

19.	I have no doubt that the proceedings of the appeal tribunal were conducted in accordance with the principles of natural justice, and its decision is reflective of an apposite consideration of, and adherence to, such principles. As was noted above, the appellant had returned Reg 2(i)(d), signed on 2 October 2008, in which he had indicated that he was content for the appeal to proceed without an oral hearing. The appeal tribunal could not be said to be in error of law for proceeding with the appeal tribunal hearing in those circumstances. 

20.	Although the record of proceedings for the appeal tribunal is necessarily brief, it is recorded that the appeal tribunal had noted that the appellant had chosen to have his appeal proceed without an oral hearing. The record of proceedings also notes that the appeal tribunal had before it and considered the appeal submission and scheduled documents, which included the appellant’s claim form to DLA, a report of an examination by an examining medical practitioner, the appellant’s letter of appeal and a factual report from the appellant’s GP. The record of proceedings for the appeal tribunal hearing also records that the appeal tribunal had before it the appellant’s GP records.

21.	Accordingly, I find no error of law in how the appeal tribunal proceedings were conducted.

Post appeal tribunal action

22.	As was noted above, on 6 March 2009 correspondence was received in TAS from the appellant in which he indicated, inter alia, that contrary to what had been said in a telephone conversation, he had not received a copy of the decision of the appeal tribunal. As part of the proceedings before the Social Security Commissioner, TAS was asked to provide details of what action had been taken subsequent to the appeal tribunal hearing on 11 November 2008. The reply from TAS states that the history of the case was as follows.

•	The appeal tribunal’s decision was notified to the appellant on 12 November 2008. In this regard I note that the decision notices (care and mobility) for the appeal tribunal’s decision have been endorsed that they were issued by the clerk to the appeal tribunal on 12 November 2008. I also note that an earlier entry that the decision notices had been notified to the appellant on 14 November 2008 has been corrected by the clerk to the appeal tribunal.

•	On 23 February 2009 a telephone call had been received in TAS from the appellant asking why he had not heard anything in connection with his appeal tribunal hearing.

•	On 6 March 2009 the correspondence from the appellant, referred to above, was received in TAS.

•	The correspondence received from the appellant on 6 March 2009 was actioned as follows:

-	the content of the correspondence was treated as an indication that the appellant had not clearly indicated his intentions as to what action he wished to take;

-	the correspondence was not placed before a LQPM with a request for a ruling on what further action might be taken;

-	the appellant was sent, on 20 March 2009, a copy of a letter which has the internal TAS name of COMM/SETd. 

-	the first page of the relevant COMM/SETd reads as follows:

“Dear [the claimant’s name]

I refer to your letter of 06/03/09. It is unclear from this whether you wish to have the decision of the Appeal Tribunal issued on 12/11/2008 set aside or if you wish to apply for leave to appeal to the Social Security Commissioner.     

If you think the procedure at the hearing was wrong because the tribunal heard the appeal without you or your representative being there, or without some of the necessary papers, for example, then you can apply to have the tribunal's decision set aside.

In the event of the legal member of Tribunal agreeing to set aside the decision your appeal would be reheard by an entirely different Tribunal and the points you have raised would be taken into consideration.

Should the legally qualified member of the Tribunal refuse to set aside the decision you can appeal the original Tribunal decision dated 11/11/2008, to the Social Security Commissioner on a point of law, within 1 month of the date of notification to refuse to set aside.

If you think the Tribunal made an error in applying the law, you can apply for leave to appeal to a Social Security Commissioner. I enclose form COMM11 for completion, if you choose this option.

A copy of the Statement of Reasons must be included with your application for leave to appeal. You can obtain the Statement of reasons if you make a written request to this office within 1 month of the date the tribunal's decision was sent to you. In your case this was 12/12/2008.

Please tick the appropriate box below and return this letter within 14 days in the prepaid envelope enclosed. If your reply is not received within the time specified your original application will be referred to a legally qualified member for determination.

Yours sincerely

Clerk to the Appeals Service’
  
There then follows two options for the recipient of the letter to choose, namely whether:

‘I wish to apply to have the Tribunal decision set aside. My grounds are:’ and

‘I wish to apply for leave to appeal to the Child Support Commissioner/Social Security Commissioner. I enclose a completed form COMM11’ 

•	On 1 April 2009, and as was noted above, on 1 April 2009, the front page of ‘Form Comm11’ was received in TAS. Attached to the back of this form was the second page of Form ‘COMM/Setd’. It would appear, therefore, that the appellant had completed Form Comm11 and utilised the second page of the Form COMM/Setd as a continuation page.

•	The received ‘Comm11/Setd’ was placed before the LQPM of the appeal tribunal as an application for leave to appeal to the Social Security Commissioner, together with a Form AT10(srl). The Form AT10(srl) submitted to the LQPM that ‘An application for leave to appeal to the Commissioner has been received. A copy of the Statement of Reasons has not been attached.’

•	TAS has indicated that a further copy of the decision does not appear to have been sent to the appellant at any stage. 

23.	There are several aspects of how the appeal was dealt with at post-hearing stage which are of concern to me, as follows:

(i)	the correspondence received from the appellant in TAS on 6 March 2009 was not placed before a LQPM for determination as to what further action was appropriate;

(ii)	the appellant was not forwarded a further copy of the decision notices on receipt of his telephone call of 23 February 2009 or his correspondence received on 6 March 2009;

(iii)	in the final paragraph of Form COMM/Setd, sent to the appellant on 20 March 2009, it is stated that the tribunal decision had been sent to him on 12 December 2008 when it had been sent to him on 12 November 2008;

(iv)	the LQPM was not asked on 3 April 2009 to make a ruling as to whether the appellant’s intentions were clear, and whether the received combined Comm11 and COMM/Setd was an application for leave to appeal to the Social Security Commissioner;

(v)	the appellant was not re-directed to make an application for the statement of reasons for the appeal tribunal’s decision, when it was clear on receipt of the combined Comm11 and COMM/Setd that no such statement had been requested;

(vi)	the wording of the first option at section 4 of Form COMM12 may not be appropriate.  

24.	I have to ask whether the appellant has been disadvantaged as a result of these problematic aspects of the post-appeal actions. 

25.	Following the hearing of an appeal, an appellant is entitled, under regulation 53(3) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland 1999, as amended to be sent a copy of the decision notice which contains the decision of the appeal tribunal, and be informed of his right: 

(a)	to apply for a statement of reasons for the appeal tribunal’s decision; and

(b)	the conditions governing appeals to a social Security Commissioner.  

26.	The conditions governing appeals to a Social Security Commissioner are to be found in regulation 58 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland 1999, as amended.  

27.	It seems to me that an appellant is also entitled to be informed of his right to apply for the record of proceedings for the appeal tribunal hearing, and of his right to make an application to have the decision of the appeal tribunal set aside.

28.	In the instant case, it is the position of TAS that the appellant was forwarded a copy of the decision notice on 12 November 2008, together with the details of the regulation 53(3) requirements. It is the appellant’s position, of course, that at that stage, he did not receive those details. Was the action taken by TAS following the contacts made by the appellant on 23 February 2009, sufficient to ensure that the appellant was informed of his post-appeal rights? The position is marginal but I am satisfied that they were. The details in the COMM/SETd form, which was sent to the appellant on 20 March 2009, and which he did receive, are sufficient to inform the appellant of his rights to apply for the decision of the appeal tribunal to be set aside; of his right to make an application for leave to appeal to the Social Security Commissioner; and of his right to apply for a statement of reasons for the appeal tribunal’s decision. The appellant did take certain action based on that correspondence, namely to make an application for leave to appeal to the Social Security Commissioner. 

29.	I am not satisfied that the post-appeal action included information informing the appellant of his right to apply for a copy of the record of proceedings for the appeal tribunal hearing. That omission was rectified by further action taken by the OSSC, when the appellant was informed, on 22 April 2009, of his right to request the record of proceedings. 

30.	I am of the view, however, that consideration should be given by TAS as to the proper procedures to be applied in the circumstances when an appellant contacts TAS to submit that a decision notice for a decision by an appeal tribunal was not received and where post-appeal correspondence from an appellant is unclear as to what the true intentions of the appellant are.

Was the decision to reject the application correct?

31.	Regulation 58(1) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland 1999, as amended, provides that:

‘58(1) Subject to paragraph (1A), an application for leave to appeal to a Commissioner from a decision of an appeal tribunal under Article 15 of the Recovery of Benefits Order or under Article 13 or 14 shall—

(a)	be sent to the clerk to the appeal tribunal within the period of one month of the date of the applicant being sent a written statement of the reasons for the decision against which leave to appeal is sought; and 

(b) 	be in writing and signed by the applicant or, where he has provided written authority to a representative to make the application on his behalf, by that representative;

(c) 	contain particulars of the grounds on which the applicant intends to rely;

(d)	contain sufficient particulars of the decision of the appeal tribunal to enable the decision to be identified; and

(e)	if the application is made late, contain the grounds for seeking late acceptance.’

32.	An appeal tribunal has no jurisdiction to consider an application for leave to appeal to a Social Security Commissioner if there is no written statement of reasons for the appeal tribunal’s decision. That principle was established in the decision of the Commissioner in Great Britain in R(IS)11/99 in connection with the former procedural rules for decision-making and appeals – the Social Security (Adjudication) Regulations 1995, as amended, which had an equivalence in Northern Ireland in the Social Security (Adjudication) Regulations (Northern Ireland) 1995, as amended. The principle remains valid, however, in connection with regulation 58(1) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended. On a simple construction of regulation 58(1)(a), the time for sending an application for leave to appeal to the Social Security Commissioner commences with the date on which a written statement of reasons for the decision has been sent to the applicant.

33.	Accordingly, the LQPM was correct to reject the application for leave to appeal to the Social Security Commissioner.

34.	I have noted that there is in existence a template form which is utilised by LQPMs to record determinations in connection with applications for leave to appeal to the Social Security Commissioner. At section 4 of that form, the LQPM may choose one of three reasons for rejecting the application for leave to appeal. The first of those three options, in its current version, reads as follows:

‘Reasons for decision were not sent to the applicant as required by Regulation 58(1)(a)’

35.	I am of the view that this wording does not properly reflect the reason why a LQPM has the power to reject an application for leave to appeal to the Social Security Commissioner, where there is no written statement of reasons for the appeal tribunal’s decision. The true reason for the rejection in these circumstances is that the applicant has not applied for a written statement of reasons under regulation 53(4) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, and accordingly, the time for bringing an application for leave to appeal, under regulation 58(1)(a) has not started to run. I would recommend that consideration is given to the alteration of this form to reflect the proper position.       

Consideration of the application by the Social Security Commissioner

36.	Regulation 9(1) of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999, as amended, provides that an application to a Commissioner for leave to appeal against the decision of an appeal tribunal may be made only where the applicant has sought to obtain leave from the chairman and leave has been refused or the application has been rejected. The latter emphasis is mine.  

37.	Regulation 10 of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999, as amended, requires an application to a Social Security Commissioner for leave to appeal to be made by notice in writing and to have with it, inter alia, a copy of the written statement of the reasons of the appeal tribunal for the decision against which leave to appeal is sought.

38.	The application in the instant case does not fulfil that requirement in that it does not have a copy of the written statement of the reasons of the appeal tribunal for the decision against which leave to appeal is sought. Nonetheless, I exercised the power conferred on me by regulation 27 of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999, as amended, and waive the absence of a copy of the full written statement of the reasons for the appeal tribunal’s decision as an irregularity. The exercise of this power permits me to consider the application. 

39.	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. In the absence of a full statement, the error of law must appear from the documents before me or from the circumstances of the case. Having considered all of the documents before me, and the circumstances of the case, I am satisfied that no error of law can be identified.  

40.	As was noted in R3/02(IB)(T) and R(IS)11/99, it is evidently not possible to challenge an appeal tribunal’s decision on the grounds of inadequacy of reasoning in circumstances where there is no written statement of reasons available. The lack of adequate reasons cannot constitute an error of law, because a statement of reasons was not requested in time.

41.	Further, I have considered the appellant’s contentions that his medical condition has got worse and that he has a requirement for full-time care.

42.	In paragraph 8 of unreported decision C24/03-04(DLA) the Commissioner approved of the following statement of law set out in paragraph 9 of R(DLA) 2/01 of a Commissioner in Great Britain who held that: 

‘….. In the case of a claim for a Disability Living Allowance, the jurisdiction {of an Appeal Tribunal} is limited to the inclusive period from the date of claim to the date of the decision under appeal.  The only evidence that is relevant is evidence that relates to the period over which the tribunal has jurisdiction.  However it is the time to which the evidence relates that is significant, not the date when the evidence was written or given.  It does not limit the tribunal to the evidence that was before the officer who made the decision.  It does not limit the tribunal to evidence that was in existence at that date.  If evidence is written or given after the date of the decision under appeal, the tribunal must determine the time to which it relates.  If it relates to the relevant period, it is admissible.  If it relates to a later time it is not admissible.’

43.	In the instant case, the appeal tribunal was limited to taking account of evidence that was relative to the period over which it has jurisdiction under Article 12(8)(b) of the Social Security (Northern Ireland) Order 1998, as amended, and that any subsequent deterioration in the appellant’s condition and resulting care and mobility needs did not fall to be considered. Accordingly, a deterioration in a medical condition, subsequent to the decision of the appeal tribunal, cannot succeed as a ground for applying for leave to appeal to the Social Security Commissioner. It might, however, provide a basis for a further claim to DLA.

44.	The remainder of the appellant’s application for leave to appeal to the Social Security Commissioner amounts to a further submission on factual issues rather than questions of law. It is clear that an appeal on a question of law should not be permitted to become a re-hearing or further assessment of the evidence, when that assessment has already been fully and thoroughly undertaken. 

Disposal

45.	The decision of the appeal tribunal dated 11 November 2008 is not in error of law. Accordingly, the appeal to the Social Security Commissioner does not succeed. The decision of the appeal tribunal to the effect that the appellant is not entitled to either component of DLA, from and including 10 March 2008, is confirmed.

46.	This decision will come as a disappointment to the applicant but I am obliged, as was the appeal tribunal, to apply the relevant legislative provisions to the facts of the case.  

(Signed):  K Mullan

	COMMISSIONER

	8 November 2010