JD-v-Department for Social Development (DLA) [2011] NICom 144
Decision No:  C85/10-11(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 24 November 2009

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 application can properly be determined without a hearing.  I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.

2.	The decision of the appeal tribunal dated 24 November 2009 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 his 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

7.	On 30 March 2009 a decision-maker of the Department decided to supersede an earlier decision of the Department dated 24 October 2007 as revised by the further decision of the Department dated 19 November 2007.  The decision dated 24 October 2007 as revised by the decision dated 19 November 2007 had awarded an entitlement to the higher rate of the mobility component and the highest rate of the care component of DLA from and including 18 July 2006.  In turn, the decision dated 30 March 2009 reduced the award to the higher rate of the mobility component and the lowest rate of the care component of DLA from and including 30 March 2009.  On 7 May 2009, and following a request to that effect, the decision dated 30 March 2009 was reconsidered but was not changed.  On 1 June 2009, an appeal against the decision dated 30 March 2009 was received in the Department.

8.	The appeal tribunal hearing took place on 24 November 2009.  The appellant was present and was represented.  The Department was represented by a Departmental presenting officer.  The appeal tribunal issued two separate decision notices.  In relation to its decision with respect to the care component of DLA, the unanimous decision of the appeal tribunal was recorded as:

‘Appeal disallowed.  There are grounds to supersede the decision dated 19.11.07 being ignorance of material fact.  The Claimant is not entitled to any rate of Care Component since 30.3.09’

9.	In relation to its decision with respect to the mobility component of DLA, the unanimous decision of the appeal tribunal was recorded as:

‘Mobility Component is not in issue.  There are no grounds to supersede the decision dated 19.11.07 awarding High rate mobility Component.’

10.	On 6 May 2010 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.  On 1 June 2010 the application for leave to appeal was refused by the legally qualified panel member.

Proceedings before the Social Security Commissioner

11.	On 2 July 2010 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, through the appellant’s representative.  On 9 September 2010 observations were sought from Decision Making Services (DMS) and these were received on 29 September 2010.  DMS supported the application on two of the grounds submitted by the appellant’s representative, identified a further error of law in the appeal tribunal’s decision and opposed the application on the third ground submitted by the appellant’s representative.  Observations were shared with the applicant on 7 October 2010.  Further correspondence from the appellant’s representative was received on 13 October 2010.

	Errors of law

12.	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.

13.	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

14.	In the application for leave to appeal to the Social Security Commissioner, the appellant’s representative submitted that the decision of the appeal tribunal was in error of law on the basis that:

(i)	the appeal tribunal failed to comply with the guidance set out in C15/08-09(DLA) in that the record of proceedings for the appeal tribunal hearing did not indicate whether the appellant was advised of his right to withdraw his appeal or was advised that the appeal tribunal was considering superseding in a manner which was adverse to the appellant;

(ii)	the appeal tribunal did not give adequate reasons for its decision with respect to the care component of DLA.  More particularly, the appeal tribunal did not give cogent reasons for its rejection of the evidence of the examining medical practitioner (EMP) that the appellant could not cope with hot pans or use a traditional cooker in relation to the preparation of a cooked main meal;

(iii)	there was a breach of the rules of natural justice.  The membership of the appeal tribunal was female, the clerk to the appeal tribunal was female and the presenting officer was also female.  It was submitted that the appellant felt embarrassed and inhibited in discussing his problems with continence and the attention which he required in connection with his bodily functions in the all-female environment.

15.	As was noted above, in written observations on the application for leave to appeal, DMS supported the application for leave to appeal on the basis of grounds (i) and (ii) above but opposed the application on the basis of ground (iii).  In addition, DMS submitted that the decision of the appeal tribunal was in error of law on the basis of another submitted ground.  That ground was that the appeal tribunal erred in finding that the decision of the Department was in error on the basis of ignorance of a material fact.

16.	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 paragraph 77 I stated:

‘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.’

17.	In the instant case, having considered the record of proceedings for the appeal tribunal hearing, while the explanation clearly outlines the powers which are available to the appeal tribunal in considering the decision under appeal which incorporated an existing award, I can see no evidence that the appeal tribunal outlined the options which were available to the appellant in light of those powers.  I am not satisfied, therefore, that the appeal tribunal’s handling of the issue of its powers with respect to the existing award, and the appellant’s options in light of those powers, was in keeping with the principles set out in C15/08-09(DLA), and in particular sub-paragraph (iii) of paragraph 77.  It may well have been the case that such an explanation was given to the appellant, and to the appellant’s representative.  As was noted at sub-paragraph (v) of paragraph 77 of C15/08-09(DLA), it is best and safest practice 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.

18.	The decision of the Department dated 30 March 2009 was to the effect that the appellant should have an entitlement to an award of the higher rate of the mobility component and the lowest rate of the care component of DLA from and including 30 March 2009.  The basis for the award of the entitlement to the lowest rate of the care component of DLA was that the appellant satisfied the conditions set out in section 72(1)(a)(ii) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended.  Further, the evidence supporting that decision included a report from an EMP dated 4 February 2009.  A copy of the relevant report was attached to the appeal submission as Tab No 10. At section 7 of part 3 of that report, the EMP gave the opinion that the appellant would be unsafe with hot pans and would require help with the use of a traditional cooker.  At section 21 of part 3 of the report, the EMP notes the appellant’s disability to be caused by obesity, COPD and arthritis, as a result of which he would, amongst other things, have problems preparing food.

19.	How did the appeal tribunal deal with the issue of entitlement to the lowest rate of the care component of DLA?  The appeal tribunal recorded, in the statement of reasons that:

‘With regard to cooking, we find that the claimant could plan, prepare and cook a main meal for himself if he had the ingredients and it would not be unreasonable to expect him to do so.  He has full limb function and no cognitive impairment.  We find that he could stand for sufficient periods to cook a meal and his chest condition would not reasonably prevent him from cooking for himself.  We note the Examining Medical Practitioner opinion that it would be unsafe for him to use hot pans and cooker.  We consider this was based on his oxygen use at the date of the Examining Medical Practitioner report, and we do not consider that the clinical findings would render it unsafe for the claimant to cook a meal for himself.  He stated in evidence that he had left the cooker on on one occasion and would be fearful of cutting himself with a knife, but we do not accept that there is in fact any significant danger.  The claimant apparently chooses to go to his mother’s house for a main meal but we find that this is choice rather than necessity.’

20.	I agree with the appellant’s representative and DMS that there is nothing in the report of the EMP to link the EMP’s opinion that the appellant would be unsafe with hot pans and would require help with the use of a traditional cooker to the appellant’s oxygen use.  The EMP noted that the appellant’s overall disability was based on a number of medical conditions including obesity, COPD and arthritis.  It is unclear why the appeal tribunal rejected the opinion of the EMP, based, as it was, on an assessment of the appellant’s overall disability.

21.	I have concluded that the manner in which the appeal tribunal dealt with the issue of supersession to be problematic.

22.	There is no doubt that the legislative provisions which make provision for the supersession of decisions, and the date from which a supersession decision should take effect, namely Article 11 of the Social Security (Northern Ireland) Order 1998 and regulations 6 and 7 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, are complex.

23.	A Tribunal of Commissioners in Great Britain, in R(IB) 2/04, undertook an extensive analysis of the legislative provisions relating to decision-making and appeals.  In Great Britain these provisions are the Social Security Act 1998 and the Social Security and Child Support (Decisions and Appeals) Regulations 1999, both as amended.  In Northern Ireland these provisions are the Social Security (Northern Ireland) Order 1998 and the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, both as amended.  To all intents and purposes, the legislative provisions with respect to decision-making and appeals in Great Britain and Northern Ireland are identical.

24.	At paragraph 73, of R(IB) 2/04, in discussing the appeal tribunal’s powers with respect to supersession decisions:

‘… it follows from our reasoning … that the appeal tribunal has jurisdiction, on appeal, to decide whether the outcome arrived at by that decision (i.e. either to change or not to change the original decision) was correct.  This will or may involve deciding (a) whether one of the statutory supersession grounds (whether the one relied upon by the decision-maker or not) applied and (b) if so whether the original decision ought to be changed.’

25.	The grounds upon which a decision can be superseded are to be found in regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.

26.	The decision under appeal to the appeal tribunal was a decision dated 30 March 2009 in which a decision-maker of the Department decided to supersede an earlier decision of the Department dated 24 October 2007 as revised by the further decision of the Department dated 19 November 2007.

27.	Accordingly, the first task of the appeal tribunal was to determine whether the decision-maker, on 30 March 2009, had grounds to supersede the earlier decision of the Department, dated 24 October 2007, as revised.  If the appeal tribunal determined that the decision-maker, on 30 March 2009, did not have grounds to supersede the decision dated 24 October 2007, as revised, then that latter decision would continue to have effect.  If the appeal tribunal determined that the decision-maker, on 30 March 2009, did have grounds to supersede the decision dated 24 October 2007, as revised, then the appeal tribunal could have gone on to consider entitlement to benefit.  Finally, the appeal tribunal was under a duty to determine the effective date from which any supersession decision should take effect.

28.	In the appeal submission prepared for the appeal tribunal hearing, the appeals writer submitted that the legal basis for the supersession decision was that there had been a relevant change of circumstances for the purposes of regulation 6(2)(a)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.

29.	In DLA cases, where there is an alteration by the Department of an existing award to the detriment of the appellant, there is a temptation to assume that the natural ground on which a supersession decision has been made is ‘change of circumstances’.  The cases and circumstances under which a decision may be superseded are more varied, however, and specific provisions have been included to deal with discrete situations.  It is essential that appeal tribunals are satisfied that the correct ground has been identified, and that the supersession decision takes effect from the correct date.

30.	In the instant case, in the statement of reasons for the appeal tribunal’s decision with respect to the care component of DLA, there is a detailed discussion of the supersession issue.  The appeal tribunal concludes this discussion by stating:

‘We are unable, therefore to identify any actual change of circumstances, but are of the view that there has been inconsistency in the Department’s decision making, and that taking account of the evidence as a whole, the claimant did not, from 18.7.06, nor in fact from any subsequent time, require prolonged or repeated attention in connection with toileting or any other bodily functions during the night, nor did he require another person to be awake and watching over him at night.  We consider that the more appropriate ground for supersession of the decision dated 19.11.07 by virtue of Regulation 6(2)(b)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations (NI) 1999, is mistake as to material fact, being the amount of toileting actually required at night.  It appears there may also have been an error of law in relation to the effective date of the decision, but we need not consider that issue.’

31.	The appeal tribunal goes on to state:

‘With regard to entitlement to care component from the effective date of 30.3.09 we find that …’

32.	The appeal tribunal then goes on to determine that there can be no entitlement to the care component at any rate from and including 30 March 2009.

33.	I am unclear why the appeal tribunal has not followed through with its reasoning with respect to the proper ground for supersession and, more importantly, what the effective date of supersession should be.

34.	More importantly, however, I turn to the statement of reasons in respect of the appeal tribunal’s decision with respect to the mobility component of DLA.  That statement of reasons is brief, and reads as follows:

‘Tribunal considers there is no evidence to indicate that grounds existed at 30.3.09 to supersede the decision awarding mobility component.’

35.	That statement reflects the content of the decision notice with respect to the mobility component of DLA, as noted above.

36.	In considering the issue of whether the Department had grounds to supersede, an appeal tribunal should note the remarks of Mrs Commissioner Brown, at paragraph 7, of the decision in C14/04-05(DLA) that DLA is a composite benefit.  This means that the appeal tribunal should be considering whether the Department had grounds to supersede one of its earlier decisions not individual components within that decision.  Either there were grounds to supersede the decision or there were not.  Where I think the appeal tribunal has gone wrong is that it has confused the separate questions of supersession and entitlement.  There can be no consideration of the entitlement question unless there has been a consideration of the supersession question.  In turn the entitlement question only becomes relevant where it has been established that there were grounds to supersede.  What the appeal tribunal wanted to find was that the appellant should have no entitlement to the care component of DLA but should have an entitlement to the higher rate of the mobility component.  It arrived at that conclusion, in my view, without properly addressing the supersession issue.

37.	Finally, I have considered the submission by the appellant’s representative that there was a breach of natural justice in that the appellant, who was male, had appeared before an all-female appeal tribunal panel, clerked by a female clerk and at which the Departmental presenting officer was female.  As he was obliged to discuss aspects of his personal care which were intimate to him, it was submitted that the appellant felt embarrassed and inhibited.

38.	Article 8 of the Social Security (Northern Ireland) Order 1998, as amended, provides for the constitution of appeal tribunals.  Article 8(1) provides:

‘(1) Subject to paragraph (2), an appeal tribunal shall consist of one, two or three members drawn by the President from the panel constituted under Article 7.’

39.	Regulation 36(3) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, provides that:

‘(3) An appeal tribunal shall consist of a financially qualified panel member and a legally qualified panel member where –

(a)	the issue, or one of the issues, raised on the appeal or referral, relates to child support or a relevant benefit; and

(b)	the appeal or referral may require consideration by members of the appeal tribunal of issues which are, in the opinion of the President, difficult and which relate to –

(i)	profit and loss accounts, revenue accounts, or balance sheets relating to any enterprise,’

40.	Finally, Article 8(3) of the Social Security (Northern Ireland) Order 1998, as amended, provides that:

‘(3) Where an appeal tribunal has more than one member-

(a)	the President shall nominate one of the members as chairman;

(b)	decisions shall be taken by a majority of votes; and

(c)	unless regulations otherwise provide, the chairman shall have any casting vote.’

41.	Nowhere within those legislative provisions is there a requirement that an appeal tribunal should be of mixed gender, to permit an individual appellant, with particular evidential difficulties associated with the appellant’s gender.  An individual appellant, faced with an appeal tribunal panel made up of the opposite gender, and with resultant problems in presenting evidence, is at liberty to apply for an adjournment of the appeal tribunal hearing, to enable the composition of an alternative panel, more reflective of the appellant’s own gender.  In the instant case, the appellant made no such application, and I note that at an early stage of the appeal tribunal proceedings, the appellant had been afforded an opportunity of a brief adjournment to discuss issues arising in the appeal with his representative.  I am of the view that any problems which the appellant had with the composition of the panel could have been taken up with his representative at that stage.  In turn, the appellant’s representative might have considered making an application for an adjournment.  Accordingly, I do not support this ground in the application for leave to appeal.

42.	For the reasons set out above, however, I find that the decision of the appeal tribunal is in error of law and I set it aside.

	Disposal

43.	The decision of the appeal tribunal dated 24 November 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.

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 30 March 2009 in which a decision-maker of the Department decided to supersede an earlier decision of the Department dated 24 October 2007 as revised by the further decision of the Department dated 19 November 2007.  The decision dated 24 October 2007 as revised by the decision dated 19 November 2007 had awarded an entitlement to the higher rate of the mobility component and the highest rate of the care component of DLA from and including 18 July 2006.  In turn, the decision dated 30 March 2009 reduced the award to the higher rate of the mobility component and the lowest rate of the care component of DLA from and including 30 March 2009;

(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)	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

7 February 2011