TS-v-Department for Social Development (DLA) [2011] NICom 233
Decision No:  C31/11-12(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 4 November 2010

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.  The decision of the appeal tribunal dated 4 November 2010 is not in error of law.  Accordingly the decision of the appeal tribunal that the appellant is not entitled to either component of disability living allowance (DLA) from and including 18 August 2009 is confirmed.

2.	This decision will come as a disappointment to the appellant but I am obliged, as was the appeal tribunal, to apply the relevant legislative provisions to the facts of the case.  That means that there is only one inevitable outcome.

	Background

3.	On 9 June 2009 a decision-maker of the Department decided that the appellant did not have an entitlement to DLA from and including 18 August 2009 on the basis of a renewal claim.  Following receipt of a telephone call disputing the decision dated 9 June 2009, on 15 June 2009 that decision was reconsidered but was not changed.  An appeal against the decision dated 9 June 2009 was received in the Department on 30 June 2009.  The appeal letter was returned to the appellant for signature and was received again in the Department, duly signed, on 23 July 2009.

4.	Following an earlier adjournment, an appeal tribunal hearing took place on 4 November 2010.  The appellant was present, was represented and was accompanied by his parents.  The Department was represented by a Departmental presenting officer.  The appeal tribunal disallowed the appeal and confirmed the decision dated 9 June 2009.  On 28 February 2011 an application for leave to appeal was received in the Appeals Service, from the appellant’s representative Mr Lafferty of the Citizens Advice Bureau.  On 9 March 2011 the application for leave to appeal was refused by the legally qualified panel member.

	Proceedings before the Social Security Commissioner

5.	On 4 April 2011 a further application for leave to appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners.  On 11 May 2011 written observations on the application for leave to appeal were sought from Decision Making Services (DMS) and these were received on 19 May 2011.  In these written observations, Mr Hinton, for DMS, opposed the application for leave to appeal on all of the grounds submitted on behalf of the appellant.  Written observations were shared with the appellant and his representative on 1 June 2011.

	Errors of law

6.	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.

7.	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?

	The submissions of the parties

8.	In the application for leave to appeal, Mr Lafferty has submitted that the decision of the appeal tribunal was in error of law on the basis of the following grounds:

(i)	the appeal tribunal’s comments on ‘credibility’ in paragraph 1 of the statement of reasons for its decision in respect of the mobility component is evidence of initial bias and places any finding of the appeal tribunal unsafe and unsustainable;

(ii)	the comments in paragraph 1 of the statement of reasons for the appeal tribunal’s decision with respect to the care component concerning ‘the agreement of the tribunal’ are difficult to understand in the context of the issues arising in the appeal;

(iii)	the appeal tribunal placed too much emphasis on the appellant’s ability to drive a car in deciding that the appellant did not have an entitlement to the lower rate of the mobility component of DLA.  My own decision in C50/10-11 (DLA) was cited in support of this submission;

(iv)	in focusing on the appellant’s ability to drive a car in respect its decision with respect to entitlement to the lowest rate of the care component of DLA, the appeal tribunal ignored other factors and did not explain why the ability to drive a car was the primary factor considered.

9.	As was noted above, in the written observations on the application for leave to appeal, Mr Hinton, for DMS, opposed the application on all of the grounds cited by Mr Lafferty.

	Analysis

10.	In paragraph 1 of the statement of reasons with respect to the appeal tribunal’s conclusions in connection with entitlement to the mobility component of DLA, the appeal tribunal noted that:

‘There is clearly a major credibility issue when an Appellant, as here, says in the renewal claim form he can walk 0 metres and 0 minutes without severe discomfort but the claim for high rate mobility is withdrawn at the hearing.’

11.	Of course, an appeal tribunal is entitled to assess ‘credibility’ as part of its overall evidential assessment and fact-finding duties.  Nonetheless, I find it difficult to understand the context of the appeal tribunal’s statement, for the following reasons.  The appellant’s representative submitted that entitlement to the higher rate of the mobility component was not at issue before the appeal tribunal.  That is a perfectly permissible concession and submission for an appellant’s representative to make.  Such a concession can be made following consultation with an appellant concerning the conditions of entitlement to a particular rate of a specific component of DLA, and whether such conditions are satisfied in the circumstances of the case.  The context of the completion of the renewal claim form to DLA is not explained by the appeal tribunal.  An appellant’s representative before an appeal tribunal may have had little input to the completion of a claim form at the renewal claim stage.  Accordingly, I can understand why the appellant’s representative in the instant case feels aggrieved by the unexplained comments concerning the lack of credibility arising from the manner in which the claim form was completed and the concession that entitlement to the higher rate of the mobility component was not at issue before the appeal tribunal.  The appellant’s representative is entitled to believe that his own bona fides were being questioned.  In that context, the statement of the appeal tribunal is unfortunate and unhelpful.

12.	The representative’s sense of aggravation was compounded by the statement by the appeal tribunal in the first paragraph of the statement of reasons for the appeal tribunal’s decision with respect to the care component of DLA.  That paragraph reads as follows:

‘The renewal claim form claimed for day and night attention and supervision.  At the hearing, these claims were dropped and the claim proceeded as one for the lowest rate of the Care Component for the main meal test, on physical and mental grounds, with the agreement of the Tribunal.’

13.	The emphasis in the quotation is mine.  My comments set out above on the correctness of a concession by an appellant’s representative at an appeal tribunal hearing and the unexplained connection between a suitable concession and the circumstances in which a claim form is completed, are equally apposite to the statement in paragraph one of the reasons in connection with entitlement to the care component.  Further, I am perplexed by the appeal tribunal’s addition of the words ‘… with the agreement of the Tribunal.’  There is no requirement for a representative to obtain the concurrence of an appeal tribunal to a concession as to which rates of which component of DLA are relevant.  The implication of the appeal tribunal’s statement is that such concurrence is required, or that the appeal tribunal could have forced the issue of consideration of what was sought in the renewal claim form.  Once again, therefore, I find the relevant remarks to be unhelpful.

14.	I have to determine, therefore, whether what was stated by the appeal tribunal, in both cited paragraphs was, as was submitted by Mr Lafferty, evidence of pre-determined bias which tainted the remainder of the appeal tribunal’s reasoning.  My answer is that it is not.  Subject to what I will have to say below, about Mr Lafferty’s other specific points, when one considers the remainder of the statements of reasons for the appeal tribunal’s decisions with respect to its decision in respect of the care and mobility components of DLA, it is clear to me that the issues were dealt with fairly and objectively, and the reasons, while brief and to the point, are evidence of a coherent and rational approach to benefit entitlement.  The evidential assessment and fact-finding is careful and thorough.  There is no evidence that the appeal tribunal’s conclusions that there should be no entitlement to DLA were based on pre-established prejudice against either the appellant or his representative.

15.	Nonetheless, I have to turn to Mr Lafferty’s specific points about the appeal tribunal’s assessment of the evidence that the appellant was able to drive.  In the written observations on the application for leave to appeal, Mr Hinton refers to Mr Lafferty’s submission about my own decision in C50/10-11(DLA). Mr Hinton submits that:

‘Paragraph 29 of [C50/10-11(DLA)] states:

“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.”

In the above case the tribunal held that because the claimant could drive a car she did not need guidance or supervision; however the tribunal failed to make any other findings in relation to the lower rate of the mobility component.

The tribunal in assessing (the claimant’s) entitlement to low rate mobility addressed this in the statement of reasons as follows:

“In the renewal claim form, the claim for low rate mobility is based on safety and anxiety issue and “Can’t register visual information and navigate” etc.  At the oral hearing we are then told that at the date of decision he had passed the driving test and is currently driving.  This is simply incredible.

In addition, in the medical records, a Consultant Surgeon noted on 06.10.2009, “Visual acuity remains excellent” and the General Practitioner, Dr T...., on 04.6.2009 confirmed mobility as normal and no confusion or memory loss or impaired judgement.  In addition the General Practitioner confirms that Appellant has atypical-asymptomatic cystic fibrosis, a shunt in situ which controls hydrocephalus and mild cerebral palsy.”

However, unlike C50/10-11(DLA), I would contend the tribunal did not only take (the claimant’s) ability to drive a car in deciding entitlement to low rate mobility.  It referred to the GP Dr T.... stating in the medical records that he had no confusion or memory loss or impaired judgement.  The tribunal would also have noted the GP factual report in which Dr T.... stated that (the claimant’s) insight and awareness of danger was normal.  The tribunal also made reference to the factual report where the GP “confirms that the Appellant has atypical-asymptomatic cystic fibrosis, a shunt in situ which controls his hydrocephalus and mild cerebral palsy.”  The tribunal concluded from this evidence that (the claimant) was not at risk from falling.  I would contend it was entitled to come to this conclusion.

The tribunal in concluding stated that:

“He has not however shown any reasonable need for guidance or supervision most of the time on unfamiliar routes.”

I submit that the present case can be distinguished from C50/10-11(DLA) in that the tribunal took other factors into consideration as well as [the claimant’s] driving ability in deciding entitlement to low rate mobility.  Consequently it has not erred in law as contended.’

16.	I agree with Mr Hinton’s submission in its entirety.  My remarks in C50/10-11(DLA) are confined to the circumstances of that individual case.  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.’

17.	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).  The ability to drive was one factor which the appeal tribunal took into account but, unlike in C50/10-11(DLA), it was not the only factor.

18.	Finally I have to consider Mr Lafferty’s submission that in focusing on the appellant’s ability to drive a car in respect its decision with respect to entitlement to the lowest rate of the care component of DLA, the appeal tribunal ignored other factors and did not explain why the ability to drive a car was the primary factor considered.  Once again the observations of Mr Hinton on this issue are relevant:

‘In R(DLA) 2/05 Commissioner Williams refers to the House of Lords Judgment Moyna v Secretary of State for Works and Pensions [2003] 1 WLR 1929, where it was held that the ‘cooking test’ is a hypothetical test to calibrate the severity of a person’s disability.  This requires taking a broad view of the facts of a case and making a judgment.  Commissioner Williams held that in testing a claimant’s abilities against the hypothetical test a tribunal should look at all the available evidence 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:

”… 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….. “

This view has been endorsed by Commissioner Brown in paragraph 12 of unreported decision C4/04-05(DLA).

In view of the above caselaw I submit that the tribunal was quite entitled to test (the claimant’s) ability to drive as an indication that he would be able to perform the functions related to cooking a main meal.

I would contend however that the tribunal also considered further evidence regarding (the claimant’s) ability to prepare and cook a main meal.  It referred to the medical records describing (the claimant) as a “very bright young man” and correctly concluded from this evidence that there would be no mental or intellectual problems with planning, preparing and cooking a main meal.

Regarding (the claimant’s) physical disabilities the tribunal in its reasoning assessed his ability to prepare and cook a main meal and concluded:

“The medical records confirm that his cystic fibrosis “is of no consequence and he did not get treatment for it”, it is “a very mild atypical form”.  He has a shunt in situ to control his hydrocephalus.  He has mild cerebral palsy.  One leg is ½ cm shorter than the other and this is described as “clinically insignificant”.  His vision, hearing and respiratory symptoms are all normal.  Occasionally his co-ordination can be affected and his reactions are slowed but taking a broad view this would not be there most of the time.  He can plan, prepare and cook himself a main meal.  His parents’ evidence of problems in this area is not supported by the medical records.”

Therefore, in line with the above, I would contend that the tribunal did not place preference on (the claimant’s) ability to drive over other evidence in deciding his entitlement to the low rate of the care component in respect of the main meal test.  However, in line with R(DLA) 2/05 the tribunal was entitled to use his ability to drive as evidence that the bodily functions involved in this activity could be applied to the cooking test.  Consequently it has not erred in law in this regard.’

19.	Once again, I accept this submission in its entirety.  Read as a whole, the statement of reasons for the appeal tribunal’s decision in respect of the care component of DLA provides a detailed explanation of the basis on which the appeal tribunal arrived at its conclusions as to why the appeal tribunal concluded that the appellant had no entitlement to the lowest rate of the care component of DLA.

	Disposal

20.	The decision of the appeal tribunal dated 4 November 2010 is not in error of law.  Accordingly the decision of the appeal tribunal that the appellant is not entitled to either component of DLA from and including 18 August 2009 is confirmed.

(signed):  K Mullan

Chief Commissioner

28 November 2011