AS-v-Department for Social Development (DLA) [2013] NICom 20
Decision No:  C46/12-13(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 29 July 2010

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 29 July 2010 is not in error of law.  Accordingly, the appeal to the Social Security Commissioner does not succeed.  The decision of the appeal tribunal to the effect that the appellant is not entitled to either component of disability living allowance (DLA), from and including 14 November, 2009 is confirmed.

	Background

3.	In this case the appointee has been validly appointed to act on behalf of her daughter who is the claimant to DLA.  In this decision, the mother will be referred to as the appointee and her daughter as the claimant.  On 26 August 2009 a decision-maker of the Department decided that the claimant should not have an entitlement to DLA from and including 14 November 2009, on the basis of a renewal claim to that benefit.  On 8 September 2009, and following receipt of a telephone call disputing the decision and further correspondence from the claimant’s social worker, the decision dated 26 August 2009 was reconsidered but was not changed.  A letter of appeal was received in the Department on 9 October 2009.

4.	Following two earlier adjournments of the appeal, an oral hearing took place on 29 July 2010.  The claimant was not present but the appointee was.  A Departmental presenting officer was present.  The appeal tribunal disallowed the appeal and confirmed the decision dated 26 August 2009.

5.	On 9 August 2010 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.  On 2 December 2010 the application for leave to appeal was refused by the legally qualified panel member.

	Proceedings before the Social Security Commissioner

6.	On 7 April 2011 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 31 August 2011 written observations on the application for leave to appeal were sought from Decision Making Services (DMS) and these were received on 14 September 2011.  In these written observations, Mr Collins, for DMS, supported the application for leave to appeal on one of the grounds cited in the application but opposed the application on all of the remaining grounds.  Written observations were shared with the appointee 15 September 2011.  On 19 September 2011 Mr Collins provided additional submissions on the issue of the appointment of the appointee in this case.  On 31 January 2012 I accepted the late application for special reasons.  In addition I directed that no oral hearing of the application would be required but invited further and final submissions.  There then followed a delay in the promulgation of this decision for which apologies are extended to the parties to the proceedings.

	Errors of law

7.	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.

8.	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.”

	Analysis

9.	In the application for leave to appeal, the appointee has submitted that the decision of the appeal tribunal was in error of law on the basis of a number of submitted grounds which can be summarised as follows:

(i)	the appeal tribunal did not take into account the contents of the claim pack to DLA;

(ii)	the appeal tribunal accepted that the claimant was ‘… highly strung, excitable, loud, not socially aware and can have temper tantrums but is not bad tempered all the time.  No-one is bad tempered 24 hours a day’;

(iii)	the appeal tribunal made an incorrect statement concerning the nature of the course of study which the claimant was attending;

(iv)	the appeal tribunal had access to letters which stated that the claimant had severe behavioural problems;

(v)	the claimant had multiple disabilities which were continuing; and

(vi)	the appeal tribunal had made up its mind before it had commenced asking the appointee questions.

10.	In written observations on the application for leave to appeal, Mr Collins, for DMS supported the application for leave to appeal on the basis of the manner in which the appeal tribunal had assessed the evidence in connection with the question of entitlement to the lower rate of the mobility component of DLA.  Mr Collins opposed the application for leave to appeal on the basis of all of the other submitted grounds.

11.	I begin with the question of how the appeal tribunal had assessed the evidence in connection with entitlement to the mobility component of DLA.  It is clear that there could be no entitlement to the higher rate of the mobility component.  In connection with that issue, the appeal tribunal recorded the following in the statement of reasons for its decision:

‘The Appellant’s mother and appointee told us at the oral hearing that (the claimant) has no problems with walking, physically.  She can walk from the City Hall to the college in Millfield.  We accept this.  She can walk a reasonable distance in a reasonable time and manner.  She has never been on high rate mobility.  It was not claimed in the renewal form received by the DSD on 18.05.09.’

12.	It could not be said that there could be any error in the manner in which the appeal tribunal has addressed the question of entitlement to the higher rate of the mobility component of DLA.

13.	It is equally clear that the appeal tribunal was obliged to consider potential entitlement to the lower rate of the mobility component of DLA.  What prompted the appeal tribunal to give this consideration was, and as was noted in the statement of reasons for its decision, that in the renewal claim form to DLA, the claimant had raised the potential entitlement to the lower rate of the mobility component.  To that extent, therefore, it could not be said, as has been submitted by the appointee, that the appeal tribunal ignored the contents of the claim ‘pack’.

14.	In arriving at its decision on entitlement to the lower rate of the mobility component of DLA the appeal tribunal considered the evidence contained within the renewal claim form to DLA, the oral evidence of the appointee and the evidence contained within a series of reports which were before the appeal tribunal.  The appointee’s own oral evidence was to the effect that the claimant would be in a position to ask for and follow directions on unfamiliar routes.  The appeal tribunal concluded that this evidence would not justify any entitlement to the lower rate of the mobility component.  I can find no error in respect of that conclusion.

15.	The appeal tribunal also concluded that the evidence contained within a series of reports which were before it would also not justify an award of entitlement to the lower rate of the mobility component.  In his written observations on the application for leave to appeal, Mr Collins submits that the relevant reports were not prepared in the context of any specific enquiries with respect to the claimant’s mobility needs.  Accordingly, the ‘… tribunal appears to have drawn a negative inference from the lack of evidence regarding (the claimant’s) mobility needs contained in the above correspondence.’  With respect to this submission from Mr Collins, I cannot accept it.  I am of the view that the appeal tribunal has assessed the evidence contained within the relevant reports in the context of all of the other evidence which was before it, including the oral evidence from the appointee.  Rather than drawing any negative inference from what might appear to be a lack of corroborating evidence, I am of the view that the appeal tribunal was stating that its conclusion was not contradicted by the evidence contained within the medical reports.  The appeal tribunal was, in my view, entitled to conclude that had the problems with an inability to recognise danger, impulsiveness, behaviour, anxiety and agitation, which were all mentioned in the renewal claim form to DLA, been such as to lead to a requirement for guidance and/or supervision whilst walking out of doors on routes which were not familiar to her, then those responsible for her treatment might have commented on that.  Accordingly, I cannot agree that the decision of the appeal tribunal is in error of law on the basis of this cited ground.

16.	In his written observations on the application for leave to appeal, Mr Collins, for DMS, has opposed the application for leave to appeal on all of the other grounds cited by the appointee.  Having considered those written observations I agree with Mr Collins that the decision of the appeal tribunal cannot be said to be in error of law.

17.	The appointee has made reference to the statements made in letters which were submitted to the appeal tribunal that the claimant was ‘… highly strung, excitable, loud, not socially aware and can have temper tantrums but is not bad tempered all the time … [and that] … No-one is bad tempered 24 hours a day.’  I agree with Mr Collins that the appeal tribunal has undertaken a rigorous assessment of all of the evidence which was before it.  The appeal tribunal has given a sufficient explanation of its assessment of the evidence, explaining why it took the particular view of the evidence which it did.  Any conflict in the evidence before the appeal tribunal has been clearly resolved and explained.  The appeal tribunal made sufficient findings of fact, relevant to its decision, all of which are wholly sustainable on the evidence, and all of which are supported by relevant evidence.  None of the appeal tribunal’s findings are irrational, perverse or immaterial.

18.	Mr Collins is correct to cite the decision of Commissioner Brown in C19/99(DLA) where she stated, at paragraph 11:

‘In any event the mere giving a name to symptoms does not mean that a person is any more likely to succeed in relation to a claim for Disability Living Allowance.  It is not the label attached to the person’s condition which is important, it is the care and mobility needs coming therefrom.’

19.	In the context of the present case, the appeal tribunal was obliged to consider whether the claimant had any care and/or supervision requirements resultant on the stated behavioural and other problems.  In my view, the appeal tribunal has given an adequate explanation as to why it considered that she did not have any such resultant care and/or supervision requirements.

21.	I have also considered the submission made by the appointee that the appeal tribunal made an error in recording the nature and type of course of study which she was undertaking.  With respect to the appointee, I cannot find any error in this regard.  The appeal tribunal noted the appointee’s evidence with respect to the claimant’s education and weighed and assessed that evidence in the context of entitlement to DLA.

22.	Finally I have considered the appointee’s submission that the appeal tribunal had not adopted a relaxed, non-threatening approach, that what had been stated in evidence by her had been ‘twisted’ and that the appeal tribunal had decided the issues arising in the appeal before she had had an opportunity to speak.  In respect of this submitted ground, I have considered the contents of the record of proceedings for the appeal tribunal hearing.  I am of the view that the appointee was given every opportunity to present the case on behalf of her daughter.  It seems to me that the proceedings of the appeal tribunal were conducted in accordance with the principles of natural justice, and its decision is reflective of an apposite consideration of, and adherence to, such principles.  Accordingly, I cannot accept this submitted ground.

	Disposal

23.	The decision of the appeal tribunal dated 29 July 2010 is not in error of law.  Accordingly, the appeal to the Social Security Commissioner does not succeed.  The decision of the appeal tribunal to the effect that the appellant is not entitled to either component of DLA, from and including 14 November, 2009 is confirmed.

(signed):  K Mullan

Chief Commissioner

7 March 2013