TH-v-Department for Social Development (DLA) [2011] NICom 146
Decision No:  C86/10-11(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 17 December 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.

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 17 December 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 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

8.	On 9 August 2009 a decision-maker of the Department decided that the appellant satisfied the conditions of entitlement to the lowest rate of the care component and the lower rate of the mobility component of DLA from and including 22 May 2009.  On 11 September 2009 an appeal against the decision dated 9 August 2009 was received in the Department.  The appeal tribunal hearing took place on 17 December 2009.  The appellant was present and was accompanied by his wife.  There was no Departmental presenting officer present.

9.	The appeal tribunal disallowed the appeal and substituted its own decision to the effect that the appellant was entitled to the lowest rate of the care component and the lower rate of the mobility component of DLA from 22 May 2009 to 21 November 2009.

10.	On 1 April 2010 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.  On 12 April 2010 the application for leave to appeal was refused by the legally qualified panel member.

	Proceedings before the Social Security Commissioner

11.	On 18 June 2010 a further application for leave to appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners.  On 27 September 2010 observations on the application were sought from Decision Making Services (DMS).  Also on 27 September 2010 the Chief Commissioner accepted the late application for special reasons.  Observations on the application for leave to appeal were received from DMS on 12 October 2010.  DMS supported the application on the grounds submitted by the appellant and also supported the application on two other identified grounds.  Observations were shared with the applicant on 21 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.”

	Was the decision of the appeal tribunal in the instant case in error of law?

14.	In the application for leave to appeal to the Social Security Commissioner, the appellant has submitted that the decision of the appeal tribunal is in error of law in that the appeal tribunal failed to apply the principles set out by the Court of Appeal of England and Wales in Moran v Secretary of State for Social Services (set out as the Appendix to R(A)1/88).  The appellant submitted that because he suffered a stroke after experiencing seizures, his needs should have been determined not on the frequency or infrequency of the attacks but whether the risk of substantial danger arising was not too remote a possibility.

15.	The appellant also submitted that the appeal tribunal erred by alluding to R(A)3/92, and concluding that the purpose of continual supervision was to ‘… effect a real reduction in the risk of harm’ was missing the point.  He submitted that ‘… it can certainly be seen as natural that a person having a fit or stroke alone, and being left without assistance (medical or otherwise) runs a much greater risk of further injury or complications as opposed to someone who has a carer to intervene, place the body in a proper safe position, call for medical assistance etc. – such a situation can easily be viewed as substantial danger.  I feel that the fact that I had no further fits or secondary strokes since hospital led the tribunal to err into thinking there was no real risk remaining.’

16.	In response to the submission made by the appellant, Mr Hinton, in written observations for DMS submitted that:

‘The tribunal contended that in (the claimant’s) case the supervision did not involve a degree of monitoring by the carer; rather it was of a more passive nature, hence it came to the conclusion that mere presence in the house was not enough, therefore the test laid down in CDLA42/94 was the correct one.  It then referred to R(A)3/92 and stated that (the claimant) had to show that continual supervision in order to avoid substantial danger was supervision that would effect a real reduction in the risk.  The tribunal concluded that:

“No amount of supervision will reduce the risk of appellant’s having another fit or stroke.”

In light of the above I would contend the tribunal did not give sufficient consideration as to whether (the claimant) was at the risk of substantial danger.  The tribunal stated that no amount of supervision would reduce the risk of (the claimant) suffering a further fit or stroke.  That statement is true (and (the claimant) concedes this point also) but I would contend this is not the test.  I would contend the tribunal’s role was to explore the help (the claimant) required following the onset of such an attack.  In GB reported decision R(DLA)1/98 Commissioner May set out the findings a tribunal should make regarding the supervision condition set out in section 72(1)(b)(ii) of the Social Security Contributions and Benefits (NI) Act 1992.  At paragraph 23 he stated:

“…What the freshly constituted tribunal will require to do is to make findings on the four elements set out in the continual supervision test in decision R(A)1/83.  These are as follows:

1.  The claimant’s medical condition must be such that it may give rise to substantial danger to himself or others;

2.  The danger must not be too remote a possibility, the fact that an incident may be isolated or infrequent is immaterial;

3.  There must be a need for supervision on the part of a third party to avoid the danger;

4.  The need for supervision must be continual.”

(The claimant) at the hearing stated that he would need supervision or watching over as he may have a seizure.  (The claimant) stated that she was anxious in case her husband took a stroke and that it could happen at any time.

It is my contention that the tribunal did not give adequate consideration to the required findings.  Dr C’s factual report dated 26 July 2009 stated that (the claimant) suffered a severe neurological incident and that he is at the risk of further events.  He went on to state that both (the claimant) and his wife were aware of this.  The Tribunal referred to this report in its reasoning and went on to state that even though it accepted any such fit or stroke would be a substantial danger to him, it would not be reasonable to say he required further supervision.  In light of the above it is my contention that the tribunal needed to establish the action to be taken in the event of (the claimant) suffering a fit or stroke.  I would contend the evidence presented would suggest that in light of (the claimant’s) condition his supervision needs involved a degree of monitoring and possible action by the carer rather than merely watching passively.  The failure of the tribunal to consider this possibility in more detail renders its decision erroneous in law.’

17.	I am in agreement with the observations made by Mr Hinton.  I am of the view that the appeal tribunal might have been more rigorous in assessing the evidence as the nature of the appellant’s requirements in light of his neurological problems.  More particularly, the appeal tribunal should have explored whether the appellant required monitoring and intervention.  In short, the appeal tribunal was required to assess all of the evidence and make findings in fact in connection with the guidance given in R(DLA) 1/98.  Its failure to explore this issue with sufficient rigour renders its decision as being in error of law.

	The other issues raised by DMS

18.	In the written observations on the application for leave to appeal, Mr Hinton also submitted that the decision of the appeal tribunal was also in error of law, on the following basis:

‘Did the tribunal take all the available evidence into consideration in respect of (the claimant’s) claim for low rate mobility?

The tribunal in its reasoning regarding assessment of the evidence stated:

“…The medical evidence before the decision maker at 9/8/2009 was from Dr C who said (23.6.2009).  “He needs to be accompanied due to unknown cause of his illness and the severity of its onset” and (26.7.2009).  “Accompanied by his wife due to unpredictable nature of his condition”.  Evidence that he needed to be accompanied is not proof of a need for guidance or supervision most of the time on unfamiliar routes.”

Whilst the assessment of evidence is a matter for the tribunal I would contend that other evidence was presented both at the hearing and in (the claimant’s) self assessment form that was not given sufficient consideration.  I would accept that accompaniment which Dr C refers to in his report does not in itself satisfy the test for an award of low rate mobility.  I would however make the point that in the factual report Dr C is not specifically asked about the nature of the help (the claimant) requires when out of doors on unfamiliar routes.  Therefore I would contend that as Dr C was not specifically asked about (the claimant’s) ability to fulfil the test for low rate mobility in this area, he was probably unaware of the impact that the word “accompaniment” would have on (the claimant’s) entitlement.

As I have stated above there was other evidence before the tribunal which should have merited more detailed analysis.  In the record of proceedings (the claimant) stated that he needed continual supervision due to fits and a possible risk of further attacks.  He stated that he never goes anywhere on his own and would be scared of taking another seizure.  (The claimant’s wife) stated that at the date of the decision (9/8/2009) she was providing guidance/supervision.  In his self assessment form (the claimant) stated that he could not go out alone because of the fear of taking another seizure.  Consequently I would contend this evidence merited further consideration but the tribunal has not indicated anywhere in the statement of reasons how it assessed this.  It has dealt with (the claimant’s) evidence concerning his blurred vision but not with his contentions concerning his fear of a future attack whilst out of doors or the evidence contained in his self assessment form.  If the tribunal rejected this evidence it should have given reasons for doing so.  Its failure to do this also renders its decision erroneous in law.’

19.	I am in agreement with this submission made by Mr Hinton for the reasons set out therein.

20.	Finally, Mr Hinton submitted in his written observations on the application for leave to appeal, that the decision of the appeal tribunal was in error of law on the basis that the manner in which the appeal tribunal dealt with the existing award of entitlement to DLA.  More specifically, Mr Hinton submitted that the appeal tribunal fell short of the standards set out in C15/08-09(DLA).  I would remind appeal tribunals that the guidance set out in C15/08-09(DLA) included the provision of an explanation to the appellant of the appellant’s options in light of the appeal tribunal’s powers, and the requirement to ensure that there is a record of the explanations provided to the appellant, concerning both powers and options, set out in the record of proceedings for the appeal tribunal hearing.

	The restriction of a fixed period award of a component of DLA

21.	In the instant case, the appeal tribunal restricted the award of entitlement to the lowest rate of the care component and the lower rate of the mobility component to a fixed period of six months from the date of claim.  That meant that the award fell short of the date of the appeal tribunal hearing.  In DH-v-Department for Social Development (DLA) [2010] NICom 104 (C71/10-11(DLA)), I said the following about the restriction of a fixed period award of entitlement in such circumstances:

‘22.	An appeal tribunal is entitled to make an award of disability for a fixed period.

23.	Section 71(3) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, provides that a ‘person may be awarded either component for a fixed period or for an indefinite period.’

24.	It is clear, however, that where an appeal tribunal makes a decision that an award of entitlement to DLA should be for a fixed period, then the appeal tribunal, in its SORs, should provide an explanation as to why the award is for such a fixed period.  Support for that conclusion is to be found in the decision of the Chief Social Security Commissioner in C6/94(DLA).  In that decision, the Chief Social Security Commissioner was discussing the making of awards of DLA in the context of a general provision relating to the duration of awards.  Nonetheless, his remarks concerning the requirement for a clarification of the reasons for the limitation of an award remain applicable.

25.	The Chief Social Security Commissioner made it clear that the requirement to explain a limitation in award is not onerous.  He described it, in paragraph 7, as the appeal tribunal making it:

	‘… clear that they have considered the point and explain in brief terms why they have decided that the award should be for the fixed period which they have selected.’

26.	In the instant case, the appeal tribunal decided that the award of entitlement should be restricted to a fixed period of one year from 30 April 2007 to 29 April 2008.  There are two important aspects to that decision, 30 April 2007 was the date of claim to entitlement to DLA, 29 April 2008 was a date prior to the date of the appeal tribunal hearing.

27.	In CDLA/2349/2008, the appeal tribunal had also made an award of entitlement to DLA for a fixed period of one year from the date of claim to a date which was one week before the date of the appeal tribunal hearing.  Commissioner Williams set out the effects – usually negative – which an award of that type, ie falling short of the date of the appeal tribunal hearing might have.  On that basis he concluded, at paragraph 2, that:

	‘The choice of an award period that causes these effects has to be a positive decision needing clear justification.’

28.	Accordingly, there is clear guidance that:

(a)	the decision to restrict any award for a fixed period requires a clear explanation; and

(b)	the decision to restrict an award for a period which falls short of the date of the appeal tribunal hearing, with the possibility of consequent negative effects for the claimant, also requires ‘clear justification’.’

22.	Having considered the statement of reasons for the appeal tribunal’s decision and, more particularly, the reasons for the restriction of the fixed period awards to a date falling short of the date of the appeal tribunal hearing, I am satisfied that those reasons are sufficient to explain why the appeal tribunal considered that a fixed period, falling short of the date of the appeal tribunal hearing, was justified.

Disposal

23.	The decision of the appeal tribunal dated 17 December 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.

24.	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.

25.	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 9 August 2009 in which a decision-maker of the Department decided that the appellant satisfied the conditions of entitlement to the lowest rate of the care component and the lower rate of the mobility component of DLA from and including 22 May 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

14 February 2011