GO’R-v-Department for Social Development (DLA) [2011] NICom 201
Decision No:  C100/10-11(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 8 March 2010

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 8 March 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.

2.	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.  An appeal tribunal which has a medically qualified panel member is best placed to assess medical evidence and address medical issues arising in an appeal.  Further, there may be further findings of fact which require to be made and 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.

3.	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 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

5.	On 11 August 2009 a decision-maker of the Department decided that the appellant was entitled to the higher rate of the mobility component and the middle rate of the care component of DLA from 2 October 2009 to 2 October 2014.  Following a telephone call and additional information, the decision dated 11 August 2009 was reconsidered on 4 September 2009 but was not changed.  An appeal against the decision dated 11 August 2009 was received in the Department on 15 October 2009.

6.	The appeal tribunal hearing took place on 8 March 2010.  The appeal was by way of a ‘paper’ hearing, as the claimant, through the return of Form Reg2(i)(d), dated 14 December 2009, had indicated that he was content for the appeal to proceed without an oral hearing.  The appeal tribunal disallowed the appeal and confirmed the decision dated 11 August 2009.  On 21 June 2010 an application for leave to appeal was received in the Appeals Service.  On 20 July 2010 the application was refused by the legally qualified panel member (LQPM).

	Proceedings before the Social Security Commissioner

7.	On 9 September 2010 a further application for leave to appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners.  On 25 November 2010 the late application was accepted for special reasons by the Chief Commissioner.  Further correspondence was received from the claimant on 15 December 2010.  On 24 March 2011 the Chief Commissioner granted leave to appeal.  In granting leave to appeal the Chief Commissioner gave, as a reason:

‘It is arguable that the decision was wrong in law because, in relation to night-time needs the tribunal failed to deal with the issue of pain, including the effect of pain on the claimant’s ability to sleep.’

8.	On 24 March 2011 written observations were sought from Decision Making Services (DMS) and these were received on 12 April 2011.  Mrs Hulbert, for DMS, opposed the appeal on two of the grounds submitted by the claimant but supported the appeal on two other grounds.  Observations were shared with the claimant on 27 April 2011.  Further correspondence was received from the claimant on 5 July 2011.

	Errors of law

9.	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.

10.	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?

11.	The appeal tribunal has provided a detailed, analytical statement of reasons for its decision with respect to the care component of DLA.  Where then did the appeal tribunal go wrong in law?

12.	In the written observations on the appeal, Mrs Hulbert, for DMS, has submitted that:

‘… (the claimant) contends the tribunal erred in law on the following grounds:

1.	He does not understand why his appeal was disallowed: for example, the tribunal has alluded to “occasional soiling” when it is clear from his GP’s (General Practitioner) evidence that this is a much more frequent problem which he has to deal with on a daily and nightly basis.

2.	In the statement of reasons it is stated that there is no evidence to suggest that he requires prolonged, repeated or frequent care at night.  However, in his GP records dated 16 July 2010 and 24 August 2010 both state clearly “frequently incontinent of both faeces and urine, and frequently wet and soiled himself”; Dr Q goes on to state that (the claimant’s) wife has to rise out of bed to clean me and the bed linen.

3.	At night on a regular basis he has to get out of bed due to the fact that he cannot stay in bed due to the severity of pain he experiences.  This happens every night on average 3-4 times and each time his wife has to get out of bed with him because he is very likely to fall due to this pain; can last for anything between 5-15 minutes each time. In the report of Mr E A C (Consultant Orthopaedic Surgeon) dated 20 October 2004 it stated that his present and consistent back pain interferes with his sleep on a regular basis.  Also, in his report dated 14 June 2005, the level of his symptomatology is on a permanent basis and he has nothing to offer in the form of surgery to correct this.

I will deal with each of these issues in turn.

Issue 1

In his self-assessment form dated 1 July 2009 (the claimant) stated that as a result of his back pain he would soil himself three to four times per week; there is no mention of faecal incontinence in the GPFR dated 16 July 2009.  On 21 August 2009 (the claimant) telephoned the department to request reconsideration and advised that he needed help about 5 times a week due to soiling.  Within the departmental submission there are various medical letters which support the matter of soiling namely letter dated 24 August 2009 from Dr Q which states “…His exercise tolerance is very poor due to pain and recently he has advised me that when he has urgency to get to the toilet he has frequently wet and soiled himself…” and letter dated 8 October 2009 also from Dr Q which refers to “Occasional soiling- particularly at night when cannot access toilet quickly enough.”

In his letter of appeal (the claimant) has contended that the tribunal has erred in referring to the problem of “occasional” soiling when he states it is a much more frequent problem.  I would point out that the reference to “occasional soiling” was made by Dr Q in aforementioned letter dated 8 October 2009.  In its reasoning the tribunal stated:

“…In this context we noted that in his letter dated 8 October 2009 Dr Q points out that the appellant has “occasional soiling” particularly at night.  We saw nothing in the medical evidence nort the other documents available to us to suggest that the level of care required via (the claimant) during the night is sufficiently prolonged, repeated or frequent to justify entitlement to the highest rate of the care component…”

Whilst (the claimant) has contended that the tribunal has not fully considered the issue of soiling, in line with the above extract from the reasons for decision I submit it has.  Based on the evidence before it the tribunal concluded that (the claimant’s) needs were not sufficient to warrant an award of the highest rate of the care component of DLA and this I submit it was entitled to do.  Therefore I find no merit in this ground of appeal.

Issue 2

In his letter of appeal (the claimant) has referred to two GP letters dated 16 June and 24 August 2010.  (Within the departmental submission there is a letter dated 24 August 2009 and I believe this is the letter (the claimant) is referring to as he forwarded this alongside his letter of appeal).  The tribunal has referred to letter dated 24 August 2009 within its decisions, however as letter dated 16 June 2010 postdates the date of the tribunal it was clearly not part of the evidence before the tribunal.  I would reiterate the points of the previous issue that whilst the tribunal was aware of the issue of soiling it concluded, based on the medical evidence before it, that there was no entitlement to DLA.  Therefore I submit the tribunal has not erred in law as contended.

Issue 3

In his self-assessment form dated 03 July 2009 (the claimant) has stated, in relation to his night time needs, that because of his severe low back pain he needs help 2-3 times per week turning in bed and with his toilet and incontinence needs at night; every night he needs help to sleep comfortably.  In the GP’s Factual Report (GPFR) dated 16 July 2009 Dr Q has confirmed (the claimant) suffers from low back pain.  Whilst he has not referred to specific night time needs, he has recorded that the stiffness in (the claimant’s) back radiates to both limbs which leads to mobility difficulties.

(The claimant) has forwarded a letter from Consultant Orthopaedic Surgeon Mr E C to his GP’s surgery dated 22 October 2004 stated therein:

“This gentleman continues to experience low back pain which is present on a constant basis and interferes with sleep on a regular basis… He continues to exhibit a marked restriction in movements of his back. ..”

Whilst I submit that the tribunal has considered the issue of soiling there is nothing in the reasons for decision to state that it has taken into consideration the impact that (the claimant’s) pain has on his needs at night time i.e. that he needs help to get comfortable and it is the pain that has impact on his incontinence.  I submit the tribunal has not adequately dealt with the impact of (the claimant’s) pain on his night time needs and has therefore erred in law as contended.’

13.	I agree with the submissions which have been made by Mrs Hulbert.  The appeal tribunal did not err in law in how it assessed the evidence in connection with night-time ‘soiling’.  The appeal tribunal did not, however, properly weigh and assess the presented evidence concerning the impact of pain on the appellant’s ability to function at night.  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

14.	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 11 August 2009 in which a decision-maker of the Department decided that the appellant was entitled to the higher rate of the mobility component and the middle rate of the care component of DLA from 2 October 2009 to 2 October 2014;

(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

11 August 2011