CC-v-Department for Social Development (DLA) [2010] NICom 31

			                                                       Decision No: C23/10-11(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 21 October 2008

	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.

2.	I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.  

3.	The decision of the appeal tribunal dated 21 October 2008 is in error of law. The error of law identified will be explained in more detail below.

4.	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. 

5.	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. 

6.	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.

7.	It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of 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

8.	On 14 May 2008 a decision-maker of the Department decided that the appellant (who for the purposes of this decision is the child claimant to DLA) should not be entitled to DLA from and including 30 April 2008. Following receipt of further information from the appellant’s appointee and mother, on 12 June 2008, the decision of 14 May 2008 was reconsidered but was not changed. 

9.	The appeal tribunal hearing took place on 21 October 2008. The appellant was not present but his mother and appointee was present. The appellant was represented and a presenting officer from the Department was also in attendance. The appeal tribunal disallowed the appeal and confirmed the decision dated 14 May 2008.

10.	On 2 January 2009 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service. On 7 January 2009 the application for leave to appeal was refused by the legally qualified panel member.

Proceedings before the Social Security Commissioner

11.	On 13 February 2009 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. 

12.	Observations were sought from Decision Making Services (DMS) and these were received on 8 April 2009. Observations were shared with the appellant on 17 April 2009.

13.	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.

Errors of law

14.	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

The submissions of the parties

15.	In the application for leave to appeal to the Social Security Commissioner, the appellant’s representative has submitted that the decision of the appeal tribunal is in error of law on the basis that:

(i)	the appeal tribunal has given inadequate reasons for its decision;

(ii)	no basis was given for the appeal tribunal’s finding that it did not accept that ‘… behavioural problems are the result of physical or mental problems’;

(iii)	the findings by the appeal tribunal that the requirements for attention which it accepted did not amount to a significant portion of the day is not explained; and

(iv)	a key finding by the appeal tribunal does not adequately reflect the totality of the evidence which was before the appeal tribunal. 
 
16.	In its observations on the application for leave to appeal to the Social Security Commissioner, DMS supported the application on the basis of the first ground cited above, but opposed the application on the other grounds. 

Analysis

17.	The statement of reasons (SORs) for the appeal tribunal’s decision has been prepared with care and attention. The appeal tribunal has identified the main issues arising in the appeal; has been forensic in its identification and assessment of evidence; has made relevant findings in fact and has, accordingly, drawn its conclusions on benefit entitlement.

18.	How, therefore, did the appeal tribunal err in law? 

19.	In the written observations on the application for leave to appeal, DMS submitted that:

‘In this case (the claimant’s mother) states that at paragraph 2(ii) of the reasons for decision the tribunal lists care needs (that it accepted) and do not explain why the substantial and repeated speech and physio therapies carried out each day which are evidenced in the record of proceedings and referred to in the medical evidence before the tribunal, are excluded.

It is also contended that at paragraph 2(ii) the tribunal goes on to list (the needs) it has accepted and not accepted without stating the evidential basis for doing so and appearing to base its findings on (the claimant’s mother) evidence which makes it difficult to reconcile with the finding referred to in the fourth issue raised in the application.

In the record of proceedings it was contended that (the claimant) receives speech and language therapy and that he attends physio and an occupational therapist.  There was also supporting evidence before the tribunal in the form of an undated report from a Speech and Language Therapist and reports dated 7 May 2008, 23 July 2008 and 17 September 2008 from Occupational Therapists.

In paragraph 54 of unreported decision C16/08-09(DLA) the Commissioner held – 

“Nevertheless there is a clear duty on appeal tribunals to undertake a rigorous assessment of all the evidence and give an explicit 	explanation as to why it has preferred, accepted, or rejected evidence which is before it and which is relevant to the issues arising in the appeal.”

In the reasons for decision the tribunal did not make findings regarding whether speech therapy or activities undertaken on a home programme under direction of an Occupational Therapist (see recommendations in report dated 7 May 2008) etc impacted on (the claimant’s) care needs because of a physical or mental disability and to that extent I concede that the tribunal’s reasons are inadequate.’
 
20.	Despite the detail of the SORs for the appeal tribunal’s decision there is no reference to the relevant evidence from the senior children’s occupational therapist contained in the report dated 7 May 2008, and in other reports. Accordingly I cannot be satisfied from what has been set out in the SORs that the appeal tribunal has assessed that evidence in line with all of the other evidence which was before it. It may be the case that the appeal tribunal had formed the view that the evidence from the senior children’s occupational therapist added little support to the appellant’s mother’s contentions relating to his potential entitlement to DLA. It is equally arguable that the issues raised by the senior children’s occupational therapist were addressed by the appeal tribunal through its effective assessment of all of the other evidence which was before it.      

21.	Nonetheless, I am satisfied that the context of the appellant having involvement with an occupational therapist could and should have been explored in more detail by the appeal tribunal. The report dated 7 May 2008 is quite specific in indicating that the appellant would benefit from home programmes to address problems with aspects of his self-care. It seems to me that that fact was worthy of further exploration in terms for reasons for referral, intervention and action by the occupational therapist team, outcome of any intervention, details of ongoing interaction and future prognosis. 

22.	The appeal tribunal’s assessment of the medical evidence which was before it was principally related to its assessment of whether the appellant had any physical or mental disability.

23.	Having found that the appeal tribunal was under a duty to consider the relevant evidence, and having failed to indicate that it did consider that evidence, and explain, in its SORs, that it has so considered it, I find, albeit with some reluctance that the decision of the appeal tribunal is in error of law.

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

24.	Having found that the decision of the appeal tribunal is in error of law on the basis of the analysis set out above, I do not have to consider the appellant’s mother’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’s representative. 

Disposal

25.	The decision of the appeal tribunal dated 21 October 2008 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. 

26.	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 14 May 2008 in which a decision-maker of the Department decided that the appellant should not be entitled to DLA from and including 30 April 2008;

(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; 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
Commissioner

21 April 2010