MJD-v-Department for Social Development (DLA) [2011] NICom 179
Decision No:  C96/10-11(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 11 November 2010

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	Having considered the circumstances of the case, I am satisfied that the appeal can properly be determined without a hearing.

2.	The decision of the appeal tribunal dated 11 November 2010 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.	On 15 April 2010 a decision-maker of the Department decided that the appellant should not be entitled to an award of either component of DLA, from and including 2 June 2010, on a renewal claim.  Following a telephone call disputing the decision dated 15 April 2010, that decision was reconsidered on 23 April 2010 but was not changed.  An appeal against the decision dated 15 April 2010 was received on 6 May 2010.

7.	The substantive oral hearing of the appeal took place on 11 November 2010.  The appellant was present and was represented by Mr O’Farrell from the Citizens Advice Bureau.  The Department was represented by a Departmental presenting officer.  The appeal tribunal disallowed the appeal and confirmed the decision dated 15 April 2010.  There is an error in the formulation of the appeal tribunal’s decision in the decision notices for both the care and mobility components.  In both decision notices the disallowance is stated to be from 2 June 2009 when the correct date should be 2 June 2010.  Nothing turns on that, however.

8.	On 25 January 2011 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.  On 3 February 2011 the application for leave to appeal was granted by the legally qualified panel member (LQPM) of the appeal tribunal.  In granting leave to appeal, the LQPM identified the following point of law:

‘There may be failure to make specific finding of fact as to Appellant’s ability to walk during and outside exacerbations of COPD and to take full account of submissions thereto by Appellant’s representative.’

	Proceedings before the Social Security Commissioner

9.	On 16 February 2011 the appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners.  On 9 March 2011 observations on the appeal were sought from Decision Making Services (DMS) and these were received on 4 April 2011.  Mr Kirk, for DMS, opposed the appeal on two of the grounds submitted by the applicant but supported the appeal on two other grounds.  Observations were shared with the appellant and her representative on 28 April 2011.

	Errors of law

10.	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.

11.	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?

12.	It is clear from the record of proceedings for the appeal tribunal hearing that the appeal tribunal went about the forensic evidence-gathering process in a careful and thorough manner.  Equally, the appeal tribunal has provided a detailed, analytical statement of reasons for its decision.  Where then did the appeal tribunal go wrong in law?

13.	In the appeal to the Social Security Commissioner, Mr O’Farrell submitted that the decision of the appeal tribunal was in error of law on the basis that:

	(i)	the appeal tribunal, having placed weight on a letter from a respiratory physician dated 6 September 2010, based on clinical findings which were specific to 2 June and 29 July, failed to relate this evidence to the circumstances obtaining at the date of appeal which was 15 April 2010;

	(ii)	the appeal tribunal failed to make any specific findings in fact in relation to the appellant’s mobility during an exacerbation of her condition;

	(iii)	in relation to the appeal tribunal’s decision with respect to the lower rate mobility component the appeal tribunal erred in using the appellant’s ability to drive as evidence to find that she did not need guidance and/or supervision while walking out of doors;

	(iv)	the appeal tribunal erred in finding that the appellant’s ability to drive indicated that she did not require assistance to prepare a cooked main meal.

14.	In written observations on the appeal, Mr Kirk made the following response, in respect of the first of the grounds cited by Mr O’Farrell:

‘At paragraph 4 of page 1 of the reasons for decision the tribunal stated:

“High Rate Mobility Component

As the Appellant is able to walk the Tribunal had to consider whether she is virtually unable to walk in accordance with the legal tests for determining this question.  We accepted that she suffers from Chronic Obstructive Pulmonary Disease with four exacerbations per year requiring steroids and antibiotics as stated in the General Practitioner’s factual report.  We noted however that she uses a nebuliser which she can manage herself and that she has been discharged from the care of Dr McC……, Respiratory Consultant, into the care of her General Practitioner, Dr B……  In her discharge letter of 06.09.2010 Dr McC……… said that her CT scan is reassuring with minimal bronchiectasis and examination (today) was entirely normal.  She said that lung function was 69% predicted “which was actually quite good” and she suggested referral to a physiotherapist to show respiratory techniques.”

It is I submit clear from the above that the tribunal primarily used the letter from Dr McC….. as its reason for deciding that (the claimant) was not virtually unable to walk.  As noted by Mr O’Farrell the decision under appeal was dated 15 April 2010 and the letter referred to by the tribunal was dated 6 September 2010.  There is nothing in the above to indicate if the tribunal related the information contained in that letter to (the claimant’s) condition to 15 April 2010.  In view of this I submit that the tribunal has erred in law.  In decision C2/10-11(IB) Commissioner Mullan endorsed the principles of GB decisions R (DLA) 2/01 and R (DLA) 3/01 and stated at paragraph 43:

“….The appeal tribunal was under a duty to determine whether the post-dated evidence relates to the period under consideration.  As was noted above, at paragraph 9 of R (DLA) 2/01, Commissioner Jacobs noted that:

‘… If evidence is written or given after the date of 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.’’

15.	I am in agreement with this submission from Mr Kirk.  In the instant case, I cannot see, from the statement of reasons for the appeal tribunal’s decision that the appeal tribunal had endeavoured to make findings concerning the relation of the evidence which post-dated the decision under appeal to the period under its consideration - that is the period up to the date of the decision under appeal.

16.	It may well be the case that the appeal tribunal had formed the view that the evidence was sufficiently proximate in time and relevance to the circumstances obtaining at the date of the decision under appeal.  If that was the case, then a statement to effect that conclusion and a brief statement of reasons could and should have been included.  In my view, the appeal tribunal should have considered the significance of the evidence and whether the evidence was related to the period under consideration.

17.	The failure of the appeal tribunal to make specific findings concerning the relation of specific evidence which it did not fully assess, in arriving at its decision with respect to the issues arising in the appeal, to the period under its consideration did not accord with the principles set out in R(DLA) 2/01 and R(DLA) 3/01, as approved in C24/03-04(DLA).  Accordingly, the decision of the appeal tribunal is in error of law.

18.	In relation to the second ground submitted by Mr O’Farrell, Mr Kirk made the following observations:

‘As I have stated at point one above the letter from Dr McC…..related to a period after the date of decision under appeal and it is not clear what date/period this relates to which in itself is an error in itself.  Furthermore I would submit that is not sufficient for the tribunal to state that outside her exacerbations (the claimant) would not satisfy the test for being virtually unable to walk without making relevant findings.  Finally on this point it was contended that the frequency of (the claimant’s) exacerbations had increased therefore there was an onus to investigate this matter further and to either accept or reject this contention and gave reasons for doing so.  This too amounts to an error in law.

Taking all the above into account I would agree that the tribunal has erred in law and that there is merit in this ground of appeal.’

19.	I agree with this submission made by Mr Kirk and agree that there was a requirement on the appeal tribunal to make findings in fact on the effect of exacerbations in the appellant’s medical condition on her mobility.  The failure to do so also renders its decision as being in error of law.

20.	The third ground on which Mr O’Farrell submits that the decision of the appeal tribunal was in error of law relates to the appeal tribunal’s conclusions concerning the relationship between the appellant’s ability to drive and her requirement for guidance and/or supervision while walking out of doors on routes which are not familiar to her.

21.	In the statement of reasons for the appeal tribunal’s decision with respect to entitlement to the lower rate of the mobility component of DLA, the appeal tribunal, after noting all of the evidence which was before it, states:

‘…This evidence was taken into account bearing in mind the guidance and findings in both of NI Commissioner’s Decision C11/05-06 (DLA) and Commissioner’s decision C50/10-11 (DLA).  The Tribunal concluded that her ability to plan and execute a journey by car on familiar routes shows that in terms of mental health she is sufficiently clear headed and competent to do so and this is relevant to her ability to walk on unfamiliar routes without guidance or supervision. … considering the totality of the available evidence, and the case law referred to above, the Tribunal concluded on the balance of probabilities that Appellant does not satisfy the test for an award of the lower rate mobility component.’

22.	The reference by the appeal tribunal to the decision of the Social Security Commissioner in C11/05-06(DLA) is clearly incorrect.  The further reference to ‘clear-headedness’ suggest that the appeal tribunal was referring to the decision of Commissioner Brown in C22/05-6(DLA), reported as R1/07(DLA).

23.	Mr O’Farrell cites paragraph 26 of my decision in C50/10-11(DLA) where I stated:

‘It is, in my view, a leap too far from the principle that an ability to drive on familiar routes can and should be taken into account in assessing the ability to walk without guidance or supervision to the direct assertion, in the instant case, that an ability to drive necessarily means that an individual does not require guidance and/or supervision while walking outdoors on routes which are not familiar.’

24.	It is essential to note that that statement was made in the context of that particular case where the appeal tribunal had concluded that:

‘… 2	The second issue is what rate of the Mobility Component is appropriate if any.  We think none is because

(a)	She can drive a car – no guidance or supervision …’

25.	Mr O’Farrell also makes an incorrect reference to C11/05-06(DLA) when he too probably means R1/07(DLA).  More significantly, however, he submits that there is a conflict of view between my own decision in C50/10-11(DLA) and the decision of Commissioner Brown in R1/07(DLA).  There is no such conflict.  It is essential to note that in C50/10-11(DLA), I had also cited paragraphs 77 to 78 of my decision in C12/08-09(DLA), as follows:

‘28.	In C12/08-09(DLA), I said the following, at paragraphs 77 to 78:

77.	Additionally, the ability to drive, even on familiar routes, is evidence of clear headedness and competency which is relevant to the ability to walk on unfamiliar routes without guidance and supervision.  In R1-07(DLA), at paragraph 9, Mrs Commissioner Brown stated that:

‘I consider the Department’s submission to be correct in that the tribunal concluded that the ability to plan a journey, drive a car and therefore react to road conditions was indicative of clear headedness and competency.  Such clear headedness and competency is a matter which is obviously relevant to the ability to walk on unfamiliar routes without guidance or supervision.  I consider the Department to be correct that it was the possession of those abilities upon which the tribunal relied, not the claimant’s ability to use familiar routes.  When driving no matter whether a route is familiar or not there can be varying traffic conditions, emergency situations, pedestrians etc.  The ability to drive even on familiar routes is evidence of clear headedness and competency.  It is quite obvious from the tribunal’s findings, where it specifically referred to the ability to walk on unfamiliar routes, that it has not misinterpreted the test for the lower rate of the mobility component.  It has merely used the evidence of driving as showing clear headedness and competency indicative of ability to walk unsupervised and unaccompanied.’

78.	Once again, therefore, the ability to drive on familiar routes, such as to and from the place of employment, can and should be taken into account in assessing the ability to walk without guidance or supervision.’

26.	In the instant case, I am wholly satisfied that the assessment by the appeal tribunal of the evidence concerning the appellant’s ability to drive, and its relationship to her requirement for guidance and/or supervision while walking out of doors on routes which are not familiar to her, is wholly in keeping with the principles in both R1/07(DLA) and C50/10-11(DLA).  Accordingly, I do not agree that the decision of the appeal tribunal is in error of law on the basis of this submitted ground.

27.	I also reject the final ground on which it is submitted that the decision of the appeal tribunal is in error of law.  The appeal tribunal, following a rigorous assessment of all of the evidence which was before it, has given a clear and concise explanation of the reasons why it has concluded that the appellant does not satisfy the conditions of entitlement to the lowest rate of the care component of DLA.  I reject the submission that the appeal tribunal placed a primary reliance on the appellant’s ability to drive in deciding that the appellant did not satisfy the conditions of entitlement to the lowest rate of the care component.  In C12/08-09(DLA) I said the following, at paragraphs 81 to 82:

‘81.	In R(DLA) 2/05, Mr Commissioner Williams determined that in testing a claimant’s abilities against the hypothetical ‘cooking’ test, an appeal tribunal should look at all the evidence as to the claimant’s ability to perform the activities involved in cooking, including direct evidence of actual difficulties with cooking and indirect evidence of other activities using the same bodily functions that are normally used in cooking.  At paragraph 8 he stated:

‘8.	The task is to apply the test to the problems the claimant has.  That is a question of fact, not law.  The starting point, … , is what the claimant says in the claim form.  To that must be added all other evidence.  The tribunal’s job, if there is a dispute, is to test for itself the claimant’s abilities against the hypothetical test.  It can do that by direct application – finding what difficulties the claimant actually has in cooking in the way he or she does so, if that happens.  And it can do that by indirect application – finding what limits the claimant has on gripping, lifting, bending, planning or otherwise by reference to other activities the claimant does undertake such as eating, washing, driving, shopping, cleaning, being aware of danger, or any other physical or mental activity using the same bodily functions as are normally used in cooking.  Having looked at all the available evidence, it must then, as the House of Lords expressly confirmed, take a broad judgmental view about whether the claimant’s problems are such that the claimant is or is not able to meet the test for the relevant period, with input from all three members of the tribunal.’

82.	In R2/05(DLA)(T), a Tribunal of Commissioners confirmed that it is proper for an appeal tribunal to seek to build up a picture of a claimant’s lifestyle and general level of ability and to draw inferences as to needs from them.  At paragraph 38 they stated:

‘… Criticism is made of the appeal tribunal for enquiring about activities other than those relating to the claimant’s care and mobility needs.  It is perfectly proper for a tribunal to seek to build up a picture of an appellant’s lifestyle and general level of ability.  A tribunal is entitled to make findings and draw inferences as to care and mobility needs from the answers obtained.  For example, someone who says that they are unable to cook a main meal may accept that they have hobbies involving many actions similar to those used in cooking.  The ability to perform those actions may be directly relevant to the ability to cook.  Again, it is not uncommon for appellants to claim that they need guidance and supervision when walking outside due to confusion but to admit that they are able to drive.  In the present appeal we consider that the appeal tribunal made perfectly proper use of the information which it obtained and reached conclusions which it was entitled to reach.’’

28.	In the instant case, the appeal tribunal did endeavour to build up a picture of the appellant’s lifestyle.  The evidence concerning the appellant’s ability to drive was a part of that picture, but there were other elements as well, including her ability to undertake puzzles, for example.

	Disposal

29.	The decision of the appeal tribunal dated 11 November 2010 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.

30.	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 15 April 2010, in which a decision-maker of the Department decided that the appellant should not be entitled to an award of either component of DLA, from and including 2 June 2010, on a renewal claim.  The decision dated 15 April 2010 was reconsidered on 23 April 2010 but was not changed;

(ii)	the Department is directed to provide details of any subsequent claims to DLA and the outcome of any such claims to the appeal tribunal to which the appeal is being referred.  The appeal tribunal is directed to take any evidence of subsequent claims to DLA into account in line with the principles set out in C20/04-05(DLA);

(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;

(iv)	the appeal tribunal should consider any evidence which post-dates the decision under appeal in line with the principles set out in R(DLA) 2/01, R(DLA) 3/01 (DLA), C24/03-04(DLA) and AR-v-Department for Social Development (IB) [2010] NICom06 (C2/10-11(IB)); and

(v)	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

Chief Commissioner

6 June 2011