JC-v-Department for Social Development (DLA) [2011] NICom 185
Decision No:  C6/11-12(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 8 November 2010

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 8 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.  I would emphasise, however, that the appeal submission, prepared for the appeal tribunal, is misleading and that this may have contributed to the error which had been made.  As the hearing of the appeal was on the basis of the papers alone, the appellant having chosen not to attend an oral hearing, there was no possibility of the error being identified by a Departmental presenting officer at an oral hearing.

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.  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.

4.	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

5.	On 22 February 2010 a claim form to DLA was received in the Department.  On 1 April 2010 a decision-maker of the Department made a decision in connection with the claim to DLA.  A copy of the decision which was made was attached to the appeal submission, prepared for the oral hearing of the appeal, as Tab No 4.  The nature of that decision, and the manner in which it was described in the submission, will be explored in more detail below.  Following a request to that effect, the decision dated 1 April 2010 was reconsidered on 21 April 2010 but was not changed.  An appeal against the decision dated 1 April 2010 was received in the Department on 18 May 2010.

6.	An oral hearing of the appeal took place on 8 November 2010.  The appellant was present and was accompanied by her husband.  There was no Departmental presenting officer present.  The appeal tribunal disallowed the appeal and made a decision to the effect that the appellant did not satisfy the conditions of entitlement to either component of DLA from and including 22 February 2010.  On 10 January 2011 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.  On 26 January 2011 the application for leave to appeal was refused by the legally qualified panel member.

	Proceedings before the Social Security Commissioner

7.	On 10 February 2011 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.  On 29 March 2011 observations on the application for leave to appeal were sought from Decision Making Services (DMS) and these were received on 12 April 2011.  DMS opposed the application on the grounds submitted by the appellant but supported the application on another identified ground.  Observations were shared with the appellant and her representative on 27 April 2011.

	Errors of law

8.	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.

9.	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

10.	As was noted above, on 1 April 2010 a decision-maker of the Department made a decision in connection with the claim to DLA which had been received on 22 February 2010.  A copy of that decision was attached to the appeal submission as Tab No 4.  It is clear from the contents of the document at Tab No 4 that the decision-maker decided that the appellant should have an entitlement to the lowest rate of the care component of DLA from and including 22 February 2010.  It is equally clear, however, that other parts of the appeal submission are misleading and inaccurate in their description of the decision which was made by the decision-maker on 1 April 2010.  Accordingly, on the cover page of the appeal submission the effect of the decision dated 1 April 2010 is stated to be ‘Disallowed from and including 22.02.10’.  Further, at paragraph 4 of the ‘Case Summary’ section of the appeal submission, it is noted that ‘On 01.04.10 it was decided that (the claimant’s) claim should be disallowed from and including 22.02.10.’

11.	How do these errors affect the determination by the appeal tribunal of the appeal against the decision dated 1 April 2010?  At first glance, it might appear to the reader of the appeal submission that the effect of the decision dated 1 April 2010 was that the appellant should have no entitlement to DLA at all.  In fact, the appellant came to the appeal tribunal with an existing entitlement to the lowest rate of the care component of DLA for an indefinite period from and including 22 February 2010.

12.	The duties and responsibilities of appeal tribunals when hearing and determining appeals against decisions which incorporate an existing award were examined in some detail by me in C15/08-09(DLA) and DSS-v-Department for Social Development (DLA) ([2010] NICom 3 C3/10-11(DLA)). At paragraph 77 of C15/08-09(DLA) 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.’

13.	Looking at the record of proceedings for the appeal tribunal hearing, and the statement of reasons for the appeal tribunal’s decision, I cannot find any reference to the decision dated 1 April 2010 as incorporating an existing award.  Although I cannot be sure it seems to me that the appeal tribunal was mistaken as to the effect of the decision dated 1 April 2010, with the mistake having been prompted by the misleading and inaccurate nature of the appeal submission.  I am certain that had the appeal tribunal been aware of the true effect of the decision dated 1 April 2010, and that it incorporated an existing award, then it would take action to ensure that the appellant was aware of the powers of the appeal tribunal in such a situation, and the options available to her, in light of those powers.  Further, I am sure that the appeal tribunal’s actions would have been recorded in the record of proceedings and in the statement of reasons.  With regret, however, the failure by the appeal tribunal to adhere to the principles set out in paragraph 77 of C15/08-09(DLA) renders its decision as being in error of law.

	The appellant’s other grounds for appealing to the Social Security Commissioner

14.	Having found that there was an irregularity which was capable of making a material difference to the outcome or the fairness of the proceedings, I do not have to consider the appellant’s other grounds for appealing.  I would indicate, however, that I would not have found the decision of the appeal tribunal to be in error of law on the other grounds cited by the appellant.

	Disposal

15.	The decision of the appeal tribunal dated 8 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.

16.	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 1 April 2010, in which a decision-maker of the Department decided that the appellant should have an entitlement to the lowest rate of the care component of DLA from and including 22 February 2010;

(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

Chief Commissioner

27 June 2011