PMcC-v-Department for Social Development (DLA) [2013] NICom 354

Decision No:  C37/12-13(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 9 September 2011

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application by the claimant for leave to appeal against a decision of an appeal tribunal, dated 9 September 2011, to the effect that (i) grounds existed to supersede an earlier decision of the Department dated 7 July 1993 and that the applicant had no entitlement to the mobility component of disability living allowance (DLA) from and including 3 September 2010 and (ii) the applicant continued to satisfy the conditions of entitlement for an award of the lowest rate of the care component of DLA from 19 May 1993.

2.	Leave to appeal is granted.

3.	By virtue of regulation 11(3) of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999, I treat and determine this application as an appeal as both parties have given their consent.

4.	The applicant, who is represented by Mr Mitchell of the Citizens Advice Bureau, has submitted that the appeal tribunal erred in law in that:

	(i)	The appeal tribunal, in arriving at its decision in the appeal, has considered evidence, including medical evidence, which post-dates the decision under appeal, in contravention of the rule in Article 13(8)(b) of the Social Security (Northern Ireland) Order 1998, as amended.

	(ii)	The appeal tribunal, while considering certain evidence which post-dated the decision under appeal, did not, in the statement of reasons for its decision, refer to a specific piece of medical evidence from the appellant’s general practitioner (GP), dated 26 May 2011 which had been supplied to the appeal tribunal on behalf of the appellant and which supported the appellant’s submissions in connection with his problems with mobility.  Accordingly, the appeal tribunal had adopted a contradictory approach to evidence which post-dated the decision under appeal considering certain of that evidence but not it all.

5.	The Department, through Mrs Hulbert of Decision Making Services (DMS), made the following submissions in connection with the application for leave to appeal:

	(i)	While the appeal tribunal was entitled to consider evidence which post-dated the decision under appeal, it was bound to determine the time to which such evidence relates.  If the evidence related to the relevant period under consideration by the appeal tribunal then such evidence was admissible, if it did not then it was not admissible.  The decision of Mrs Commissioner Brown in C24/03-04(DLA) which, in turn, had cited the decision of Mr Commissioner Jacobs in CDLA/4734/99 was cited by Mrs Hulbert in support of this principle.  Mrs Hulbert submitted that the appeal tribunal in the instant case had failed to link the evidence which post-dated the decision under appeal to the relevant period of jurisdiction of the appeal tribunal.

	(ii)	Mrs Hulbert submitted that a close perusal of the papers could not reveal a copy of the specific item of correspondence dated 26 May 2011 from the applicant’s GP.  Accordingly, she could make no comment on the validity of the submission made in connection with that correspondence.

	(iii)	The appeal tribunal had not erred in the manner in which it had assessed the evidence connected to the appellant’s problems with mobility.  In assessing that evidence, the appeal tribunal had taken into account certain limitations in his mobility, including shortness of breath, but had decided that his limitations were not such as to render him virtually unable to walk.

6.	Mrs Hulbert also submitted that the decision of the appeal tribunal was in error of law on the basis of another identified ground.  The appeal tribunal had concluded that there were grounds to supersede the decision of the Department dated 7 July 1993 on the basis that there had been a relevant change of circumstances since that decision had been made.  Mrs Hulbert submitted that the appeal tribunal had failed to identify what the actual change of circumstances was.

7.	Therefore, it is clear that both parties have expressed the view that the decision appealed against was erroneous in point of law.

8.	Pursuant to the powers conferred on me by Article 15(7) of the Social Security (Northern Ireland) Order 1998, I have to consider whether to allow the appeal, set aside the decision appealed against and refer the case to a differently constituted tribunal for determination.

9.	The appeal tribunal has gone about the decision-making process, including the assessment of the evidence which was before it, in a careful and forensic manner.  Further, the appeal tribunal has prepared a detailed and comprehensive statement of reasons for its decision.  I would begin by noting that, as with Mrs Hulbert, I have not had the opportunity to view the specific item of correspondence which Mr Mitchell submits was supplied to the appeal tribunal.  Nonetheless, I would agree with Mrs Hulbert that in assessing the evidence which was before it, the appeal tribunal had taken into account certain limitations in his mobility, including shortness of breath, but had decided that his limitations were not such as to render him virtually unable to walk.  That was a conclusion that the appeal tribunal was entitled to arrive at.

10.	I do not agree, in addition, with Mrs Hulbert’s submission that the appeal tribunal has erred in the manner in which it has addressed the question of supersession and relevant change of circumstances.  At paragraph 5 of the statement of reasons for its decision, the appeal tribunal has stated that it had ‘… changed the award on the basis there had been an improvement in his condition at the time of the decision under appeal from when the original award was made in 1993’.  The statement of reasons then goes on to assess what the appellant’s problems with mobility were at the date of the original decision which had awarded an entitlement to DLA and subsequently how those limitations in mobility had changed.

11.	What remains is the manner in which the appeal tribunal has assessed the evidence which post-dated the decision under appeal.  It is clear that the appeal tribunal was influenced by the evidence contained within several medical reports which post-dated the decision under appeal.  In summary, the appeal tribunal was utilising the contents of such reports to confirm that the appellant had undergone a significant recovery from the substantial health problems which he had in 2010 and prior to the decision under appeal.  It seems to me that the appeal tribunal might have gone further in following the guidance set out by Mrs Commissioner Brown in C24/03-04(DLA) and given a more detailed explanation as to how the evidence which post-dated the decision under appeal related to the jurisdictional period under consideration.  With some reluctance, therefore, and given the appeal tribunal’s judicious consideration of all of the other issues, I allow the appeal, set aside the decision appealed against and refer the case to a differently constituted tribunal for determination.

12.	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 DLA remains to be determined by another appeal tribunal.

13.	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 3 September 2010, which decided that there were no grounds to supersede an earlier decision of the Department dated 7 July 1993.  The decision dated 7 July 1993 had made an award of entitlement to the higher rate of the mobility component and the lowest rate of the care component of DLA from and including 19 May 1993;

	(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)	the appellant and his representative 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;

	(iv)	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

	(v)	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

15 January 2013