GG-v-Department for Social Development (DLA) [2011] NICom 161
Decision No:  C80/10-11(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 13 November 2009

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant against the unanimous decision of the tribunal, affirming the decision of a decision-maker, to the effect that the claimant does not satisfy the conditions of entitlement to either the mobility component or the care component of disability living allowance (DLA) from 22 May 2009.

2.	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.

3.	Mr Lee Hatton of the Law Centre (NI) represents the claimant while Mr John Kirk of Decision Making Services represents the Department.

4.	On 22 May 2009 the claimant made a claim for DLA stating that he had osteoarthritis, depression, panic attacks and high blood pressure.  On 24 June 2009 it was decided that the claim should be disallowed from and including 22 May 2009.  After a request for reconsideration of the decision, on 2 July 2009 the decision was reconsidered but not changed.  On 20 July 2009 the claimant’s letter of appeal was received.

5.	On 13 November 2009, by way of a paper hearing, a tribunal disallowed the appeal and affirmed the decision of the decision-maker.  The claimant then sought leave to appeal to a Commissioner.  On 13 April 2010 the legally qualified panel member (LQPM) refused leave to appeal.

6.	The application to the LQPM had been out of time.  However, a Commissioner, on 4 November 2010 accepted that it was not appropriate to non-suit the claimant for failing to make a timeous application to the LQPM, in circumstances where he (the LQPM) had accepted that there were special reasons to accept the application to him for special reasons (even though the LQPM refused leave to appeal).

7.	A Commissioner granted leave to appeal on 16 December 2010 for the following reasons:

“The decision might be wrong in law, because in circumstances where the tribunal has recited the relevant legislation [sic] provisions and referred to the relevant evidence, the tribunal has decided that no award is appropriate without explaining how and why it has reached this decision.”

	(The word “legislation” more properly should read “legislative”.)

8.	Mr Hatton made the following relevant written submission:

	“The tribunal has failed to give adequate reasons for a finding on material matters.

	It is respectfully submitted that the tribunal has erred in law by failing to adequately explain its decision in respect of (the claimant’s) entitlement to both the care and mobility components of DLA.  In particular, we would submit that the tribunal has failed to provide an adequate evidential assessment and in our respectful view, the tribunal has failed to explain what evidence it accepted or rejected when making its decision.

	We refer particularly to the tribunal’s reasons for its decision on the mobility component, specifically the higher rate of the mobility component.  In its decision, the tribunal had listed a range of evidence it had identified in the documents available.  As this was a paper hearing and (the claimant) had not attended, the written evidence was all that was available to the tribunal.  It has recorded evidence from the GP records and from the evidence within the appeal papers.

	In the section of the decision entitled “Tribunal’s decision in respect of High Rate Mobility Component”, the tribunal firstly set out the law relating to entitlement to the higher rate of the mobility component.  The tribunal then make a finding of fact in that it states “(The claimant) is able to walk”.  The tribunal then refer to two pieces of evidence before it, namely evidence from (the claimant) that he could walk 45 yards before feeling severe discomfort and evidence from Dr C…… that he was in constant pain which gets worse on mobilizing but has normal insight and awareness and no history of falls.  The tribunal then state that (the claimant) is not virtually unable to walk and is not entitled to the higher rate of the mobility component.  In our view, there is no assessment of the evidence by the tribunal and no reasons provided as to how or why it reached this conclusion.  If anything, the evidence that the tribunal refer to immediately prior to stating its conclusion would arguably support an award of the higher rate of the mobility component and does not naturally lead to a conclusion that he is not entitled.  In light of this, the tribunal would need to provide an assessment of the evidence, an indication of what it accepted as accurate and what was not accepted and then apply those findings to the statutory criteria so as to arrive at a clearly explained and reasoned conclusion.  It is our respectful submission that the tribunal has failed to do this and as a result, its decision is in error of law.

	We would respectfully submit further that a similar error of law has also occurred in the tribunal’s explanation of its decision on the care component, in that it has referred to evidence from (the claimant) and Dr C which arguably supports an award of DLA, but has stated that he is not entitled without providing any further explanation for this conclusion.”

9.	Mr Kirk made the following relevant submission:

“Mr Hatton contends that the tribunal has failed to adequately explain its decision in respect of (the claimant’s) entitlement to both the mobility and personal care components of disability living allowance.  In particular it is contended that the tribunal has failed to provide an adequate evidential assessment and it has also failed to explain what evidence it has accepted or rejected when making its decision.  In support of this contention it is noted that in its reasons for decision relating to both the mobility and personal care sections the tribunal has set out some evidence supporting (the claimant’s) contentions as to his needs and then proceeded to give its conclusions.  However there is nothing in the reasons for decision to explain how the tribunal reached its conclusions or why it rejected the evidence it had previously referred to.

As noted by Mr Hatton, the hearing of 13 November 2009 was a paper hearing only.  The tribunal made the following comments regarding its decision on the higher rate of the mobility component at paragraph 5 of page 1 of the reasons for decision:

“Tribunal’s decision in respect of High Rate Mobility component

The law relating to the mobility rate of DLA provides that a person shall be entitled to the mobility component if they are suffering from physical disablement such that they are unable or virtually unable to walk or, if they are able to walk, are so severely disabled mentally or physically that they require guidance and supervision from another person when walking outdoors most of the time.

(The claimant) is able to walk.

Indicated that he was able to walk 45 yards before he felt severe discomfort.

His GP in his report of 18th June 2009 was unable to give an opinion as to how far (the claimant) would be able to walk but then indicated that he was in constant pain which would be expected to get worse on mobilising but (the claimant) had normal insight and awareness and there was no history of falls.

The tribunal was therefore of the opinion that (the claimant) is not virtually unable to walk and therefore is not entitled to the higher rate mobility component of DLA.”

At paragraph 2 of page 2 of the reasons for decision the tribunal made the following comments regarding its decision on the care component of disability living allowance:

“Tribunal’s decision in respect of the care component

The law relating to the care component of DLA requires that a person may be entitled to that component if they have certain care or supervisory needs or if they are unable to prepare a cooked main meal for themselves.  Entitlement to the care component is also conditional on the person being physically or mentally disabled.

In his claim form of 9th June 2009 (the claimant) stated that he required attention and encouragement in connection with most aspects of his personal care during the day and night and that he further required daytime supervision as a result of his condition.  He also stated that he required help in the preparation fo [sic] a cooked meal.

The report of Dr C….. of 18th June 2009 confirmed (the claimant) was stiff and sore in the morning and that he may need help with his personal care but that he had normal insight and awareness of dangers and there was no history of any falls, self-harm or self-neglect.

On the basis of the evidence therefore the tribunal’s decision is that (the claimant) does not satisfy the conditions of entitlement to the care component of DLA that the decision of 24th June 2009 refusing both claims for payment of the award of the care component and mobility component are correct and are upheld.”

As noted by Mr Hatton the tribunal in the above have set out the legislative provisions for an award of either the higher rate of the mobility or any rate of the care component of disability living allowance (DLA).  The tribunal then proceed to refer to some of the relevant evidence available and to state its conclusions.  Unfortunately the evidence the tribunal refers to could in my opinion arguably justify an award of DLA. As the tribunal has reached the decision that no award is appropriate in this case it should have explained how and why it reached this decision.  In the absence of any such explanation, the reasons for decision are I submit inadequate.  For that reason I would submit that the tribunal has erred in law as contended and that there is merit in this ground of appeal.”

10.	The tribunal has taken considerable care in this case to set out the legislative requirements for the award of the higher rate of the mobility component of DLA and for the care component of DLA.  The tribunal also referred to some of the relevant evidence available to it and also stated its conclusions.  Nevertheless, as Mr Hatton pointed out, there is no assessment of the evidence and no reasons provided as to how or why it reached its conclusion.  Mr Hatton even suggested that the evidence referred to immediately before stating its conclusion in relation to the higher rate of the mobility component could arguably support an award of that higher rate.  I certainly would agree that it does not naturally lead to a conclusion that he is not entitled to such an award.

11.	In relation to the care component it is also clear that the evidence from the claimant and Dr C….. referred to could arguably support an award of the care component of DLA.  However, the claimant has simply been informed that he is not entitled, without any explanation for this conclusion being provided.

12.	Accordingly, I find that there is substance to Mr Hatton’s submissions.  A tribunal is required not only to reach a conclusion but it is also required to explain how and why it reached this decision.  In the present case there is no such explanation.

13.	As both advocates have submitted, and as I have concluded, failing to provide such an explanation results in the reasons for the tribunal’s decision being inadequate.  Accordingly the tribunal has erred in law in this respect and, accordingly, I conclude that the tribunal’s decision was erroneous in point of law.

14.	I therefore allow the claimant’s appeal, set aside the tribunal’s decision and refer the case to a differently constituted tribunal for a rehearing on the merits.  However, I emphasise that success for the claimant in this appeal on a point of law to a Commissioner should not necessarily be taken as an indication that the claimant will ultimately be successful in the appeal to the tribunal.

(signed):  J A H Martin QC

Chief Commissioner

16 March 2011