LC-v-Department for Social Development (DLA) [2011] NICom 166
Decision No:  C1/11-12(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 14 December 2009

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	Having considered the circumstances of the case, 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 14 December 2009 is in error of law.  The error of law identified will be explained in more detail below.  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.

3.	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.

4.	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.

5.	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) 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

6.	The decision-making process giving rise to the appeal is central to the basis upon which the decision of the appeal tribunal has been found to be in error of law.

7.	The appellant had an award of an entitlement to the higher rate of the mobility component and the lowest rate of the care component of DLA from 19 May 2005 to 18 May 2009.  Following receipt of a renewal claim to the benefit, a decision-maker, on 12 February 2009, decided that the appellant should be entitled to the higher rate of the mobility component of DLA from 19 May 2009 to 18 May 2011.

8.	By way of correspondence received in the Department on 19 February 2009, the appellant asked the Department to reconsider the decision dated 12 February 2009.  On 30 March 2009 the appellant was examined by an examining medical practitioner (EMP).  On 6 April 2009 another decision-maker ‘decided’ that the appellant should be entitled to the lowest rate of the care component of DLA from 19 May 2009 to 18 May 2011 and ‘removed’ entitlement to the higher rate of the mobility component from and including 6 April 2009.  The precise legal status of the decision dated 6 April 2009 will be considered in more detail below.

9.	By way of a telephone call to the Department, on 21 April 2009, the appellant requested that the Department reconsider the decision dated 6 April 2009.  Further correspondence was received from the appellant on 1 May 2009.  On 26 May 2009 another ‘decision’ was made by a decision-maker who ‘decided’ that the entitlement to the mobility component of DLA should be removed from 19 May 2009 and that an award of entitlement to the lowest rate of the care component of DLA was still appropriate for the period from 19 May 2009 to 18 May 2011.  The precise legal status of the decision dated 26 May 2009 will be examined in more detail below.

10.	On 5 August 2009 a letter of appeal was received from the appellant.  As the appeal was received outside the statutory time limits for bringing an appeal, the matter was referred to a decision-maker who decided to admit the appeal.  The appeal tribunal hearing took place on 14 December 2009.  The appellant was present and was accompanied by a friend.  There was no presenting officer from the Department present.  The appeal tribunal disallowed the appeal and issued two decision notices, as follows:

‘Disallow.  There is no entitlement to a care component from and including 19/5/09’

‘Disallow.  No mobility component is payable from and including 19/5/09’

11.	On 8 April 2010 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.  On the 19 April 2010 the application for leave to appeal was refused by the legally qualified panel member.

	Proceedings before the Social Security Commissioner

12.	On 7 April 2010 a further application for leave to appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners.  On 23 July 2010 written observations were sought from Decision Making Services (DMS) and these were received on 10 August 2010.  In these initial written observations, Mrs Hulbert, for DMS, opposed the application on the grounds submitted by the applicant but identified a potential error of law arising from the decision-making process giving rise to the appeal.  Mrs Hulbert submitted, however, that the identified error of law did not vitiate the decision of the appeal tribunal.

13.	Observations were shared with the applicant on 7 September 2010.  On 6 October 2010 written observations in reply were received from the appellant's representative, Ms Loughrey of the Law Centre (Northern Ireland).  In these written observations, Ms Loughrey referred to the potential error of law which had been identified by Mrs Hulbert but did not agree that the failure by the appeal tribunal to correct the error did not vitiate the decision which the appeal tribunal made.  Rather, Ms Loughrey submitted that the appeal tribunal erred in one of two ways.  If the decision under appeal was a supersession decision, then the appeal tribunal had erred by failing to follow the guidance given at paragraph 52 of C12/08-09(DLA) and paragraphs 47 to 50 of C38/09-10(DLA).  In the alternative, and if it was not accepted that the decision under appeal was a supersession decision, Ms Loughrey submitted that before treating the decision as a revision, the appeal tribunal was obliged to correct the defective supersession decision.

14.	The written observations in reply from Ms Loughrey were shared with DMS on 18 October 2010.  On 29 October 2010 a further written submission was received from Mrs Hulbert, for DMS.  In this further submission, Mrs Hulbert observed that:

‘On 8 August 2005 (the claimant) was awarded the higher rate mobility and lowest rate care components of DLA for the period 19 May 2005 to 18 May 2009.  (The claimant) submitted a renewal claim and on 12 February 2009 the decision maker awarded her the higher rate mobility component of DLA for the period 19 May 2009 until 18 May 2011.  (The claimant) requested a reconsideration of this decision with a view to having the low rate care component included in her award.  The Department arranged to have (the claimant) examined by an Examining Medical Practitioner (EMP).  Following the examination a decision maker reconsidered the decision of 12 February 2009 and based on all the evidence before him the decision maker gave a further decision on 6 April 2009.  This decision states that it is revising the decision of 12 February 2009.  Unfortunately the decision does not go into too much detail in this regard.  Having thus revised the decision of 12 February 2009 effectively removing it, the decision maker then proceeded to treat the renewal application as a request to supersede the decision of 8 August 2005 on the basis that there was a relevant change of circumstances, namely (the claimant’s) mobility needs had decreased.  As a result the higher rate mobility component was removed from 6 April 2009 (the date of decision), however the period of the award of the care component was extended to 18 May 2011.  Following a request to have this decision looked at again, the decision maker on 26 May 2009, revised the decision of 6 April 2009 and decided that the mobility component should be removed from 19 May 2009 (the date of renewal claim) and an award of the lowest rate care component was still appropriate for the period 19 May 2009 to 2011.  Unfortunately it is not clear as to the reasons for changing this decision.  It may be that the decision maker was now of the opinion that there were not grounds to supersede the original decision of 8 August 2005 therefore the award of the higher rate mobility component should remain in payment until 18 May 2009.  (The claimant) was notified of this decision on 27 May 2009 and subsequently lodged an appeal against this decision.

My Comments

From the history of the case outlined above it is my submission that the decision that was subject to (the claimant’s) appeal was the decision 26 May 2009 (which revised the decision of 6 April 2009) and not the decision of 12 February 2009 (as revised by the decision of 6 April 2009).  It was the latter of these decisions which formed the basis of the Department’s submission and which the Department had asked the tribunal to adjudicate on.  If the Commissioner accepts that this is the case then I would submit that the tribunal has in fact considered the wrong decision and as such has erred in law.

Ms Loughrey contends that the decision dated 6 April 2009 was a supersession decision and as can be seen from the history set out above this was in fact the case.  Although not referred to in the Department’s submission the issue of supersession was an integral part of the decision of 6 April 2009 and was an issue for the tribunal to consider.  It is therefore my submission that the tribunal’s failure to consider same renders the decision erroneous in law.

In view of the above I would recant my original submission that there was no error in law and now support this application for leave to appeal.’

15.	The further submission from Mrs Hulbert was shared with Ms Loughrey on 18 November 2010.  On 10 December 2010 a further submission was received from Ms Loughrey.  In this further submission Ms Loughrey observed that the decision of the appeal tribunal was in error of law on the basis of the failure by the appeal tribunal to resolve the decision-making issues which arose in the appeal.

	Errors of law

16.	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.

17.	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 decision-making process giving rise to the appeal

18.	The decision-making process giving rise to the appeal before the appeal tribunal was problematic.

19.	The appellant had been in receipt of an award of the higher rate of the mobility component and the lowest rate of the care component of DLA from 19 May 2005 to 18 May 2009.  A renewal claim to DLA was received in the Department on 15 December 2008.  On 12 February 2009 a decision-maker of the Department made a decision on the renewal claim to DLA.  A copy of that decision is attached to the original appeal submission as Tab No 3.  The decision was that the appellant was entitled to an award of the higher rate of the mobility component of DLA from 19 May 2009 to 18 May 2011.

20.	The appellant was dissatisfied with the decision dated 12 February 2009.  On 19 February 2009 correspondence was received in the Department from the appellant in which she indicated her gratitude for the award of the mobility component of DLA but submitted that the Department appeared to have overlooked her entitlement to the care component of DLA.  The response of the decision-maker to that correspondence was to have the appellant examined by an EMP.  The examination took place on 30 March 2009.

21.	On 6 April 2009 a decision-maker purported to make another decision.  In the 'Case Summary', at section 4 of the original appeal submission, the 'decision' dated 6 April 2009 is described as follows:

'On 6/4/09 the decision of 12/2/09 was revised and only the lowest rate of the care component was awarded from and including 19/5/09 to 18/5/11'.

22.	A copy of the 'decision' dated 6 April 2009 is attached to the original appeal submission as Tabs No 6 and 7, the decision being in two parts.  The 'decision' is in a standard social security template format.  At Tab No 6 the decision is described as a 'Reconsideration'.  The effect of the decision is described as 'Reconsidered and Decreased'.  The decision-maker noted:

‘Having reconsidered all the available evidence in this case, I am satisfied that there are grounds to revise the decision dated 12.2.09.  I am satisfied from the EMP report dated 30.3.09, that there has been a relevant change of circumstances since the original FC decision dated 8.8.05, in that (the claimant’s) condition has improved resulting in decreased mobility needs.  I am therefore superseding the decision dated 8.8.05 and removing the award of the higher rate of the mobility component and awarding the lowest rate care component only. See Dec 1 Supp….’

	Immediately following this entry is the following reference:

‘SS(NI) Art 10 & D&A reg 3 & 4’.

23.	I am assuming that these are references to Article 10 of the Social Security (Northern Ireland) Order 1998 and regulations 3 and 4 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.

24.	In two places in Tab No 7, the decision-maker is asked the question 'Is there a case or circumstance to justify a Revision or Supersession?'  The response to both questions is 'yes'.  Thereafter the decision is described as 'Reconsidered and revised'.

25.	The appellant was not satisfied with the 'decision' dated 6 April 2009 either.  On 21 April 2009 a telephone call was received in the Department from the appellant.  On 1 May 2009 further correspondence was received in the Department in which the appellant challenged the 'reconsideration' decision, and which included further correspondence from her general practitioner.  On 26 May 2009 a decision-maker purported to make yet another decision.  In the 'Case Summary', at section 4 of the original appeal submission, the 'decision' dated 26 May 2009 is described as follows:

		'On 26/5/09 the decision of 6/4/09 was reconsidered, however it was not changed.'

26.	A copy of the 'decision' dated 26 May 2009 is attached to the original appeal submission as Tabs No 8 and 9, the decision being in two parts.  Once again, the 'decision' is in a standard social security template.  In two places in Tab No 9, the decision-maker is asked the question 'Is there a case or circumstance to justify a Revision or Supersession?'  The response to both questions is 'no'.  Thereafter the decision is described as 'Reconsidered and not revised'.

	How did the appeal tribunal deal with the decision-making process giving rise to the appeal?

27.	In the statement of reasons for the appeal tribunal's decision, the appeal tribunal stated the following as representing the decision-making process giving rise to the appeal:

'The Tribunal considered all the oral and written evidence and submissions in order to decide entitlement to Disability Living Allowance at the date of decision 12.2.09 on a renewal claim made on 19.5.09.  The appeal was against a decision awarding the low rate care component from 19.5.09-18.5.11.  An award of high rate mobility had been made previously.  The Tribunal decided that no award should be made.  It took this decision after a careful evaluation of all the evidence and after advising (the claimant) of the risk on the evidence to her award, and of her rights to pursue and to withdraw her appeal.  The Tribunal fulfilled its duty to follow a fair process, consistent with decision C003/10-11(DLA)-NI and Article 6 of the European Convention on Human Rights, and its duty to reach the decision warranted on a fair assessment of all the evidence'.

	The error of law

28.	There is no doubt that the decision of the decision-maker dated 6 April 2009 is problematic.  In the decision, there is a reference to the earlier decision of the Department, dated 12 February 2009 being reconsidered and revised.  Further, and as was noted above, there is a reference to Article 10 of the Social Security (Northern Ireland) Order 1998 and regulations 3 and 4 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.  Article 10 and regulations 3 and 4 are all concerned with the legislative basis upon which decisions of the Department might be revised.  At first glance, therefore, it would appear that the action which the decision- maker, on 6 April 2009, had in mind was to revise the decision dated 12 February 2009.

29.	The narrative in the decision dated 6 April 2009, however, makes reference to the decision-maker being satisfied that he had grounds to revise the decision dated 12 February 2009.  More significantly, however, the narrative refers to the decision-maker being satisfied that there has been a relevant change of circumstances since the making of the decision dated 8 August 2005, and that he was superseding the decision dated 8 August 2005.  There is clear confusion, therefore, as to whether the decision dated 6 April 2009 was a revision or a supersession.

30.	That was not the end of the decision-making process, however.  There was another decision dated 26 May 2009.  As Mrs Hulbert for DMS points out, the legal basis for this decision is not clear.  The narrative speaks of the decision dated 6 April 2009 being reconsidered and not changed.  The template form makes reference to there being no case or circumstance to justify a revision or supersession but then refers to the decision dated 6 April 2009 being ‘varied’ in that the disallowance date for the higher rate of the mobility component of DLA being 19 April 2009.

31.	The difficulty is that the appeal tribunal has made no reference to the decision-making process which took place after 12 February 2009.  As was noted above, not only did the Department take action post 12 February 2009, the decisions which it took were problematic.  The legal status of the decisions dated 6 April 2009 and 26 May 2009 is difficult to establish.  Why does that make any difference?  It makes a difference in that depending on whether those decisions were revisions or supersessions, that would affect the date from which the decisions would have effect.  In turn, and by virtue of Article 13(8)(b) of the Social Security (Northern Ireland) Order 1998, as amended, the appeal tribunal’s jurisdiction is limited to the date of the decision under appeal.  It also makes a difference in that if either of the decisions was a supersession, the appeal tribunal would have been obliged to consider whether the Department had grounds to supersede.  Accordingly, and with some regret given the appeal tribunal’s careful and judicious management of the other aspects of the appeal, and its circumspectly prepared statement of reasons, I find that the decision of the appeal tribunal is in error of law.

	Disposal

32.	The decision of the appeal tribunal dated 14 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.

33.	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.

34.	I direct that the parties to the proceedings and the newly constituted appeal tribunal take into account the following:

(i)	the Department is to prepare a new submission which sets out the decision-making process following the decision dated 12 February 2009 and which sets out its considered view as to the legal effect of the decision-making process post 12 February 2009;

(ii)	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

(iii)	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

28 April 2011