JD-v-Department for Social Development (DLA) [2014] NICom 52
Decision No:  C19/14-15(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 20 November 2013

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 20 November 2013 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 18 July 2013 a decision-maker of the Department decided that the appellant did not have an entitlement to DLA from and including 22 May 2013 on a renewal claim to that benefit.  Following receipt of correspondence from the appellant’s general practitioner (GP), on 29 July 2013 the decision dated 18 July 2013 was reconsidered but was not changed.  Further correspondence was received in the Department on behalf of the appellant followed by the receipt of the appeal against the decision dated 18 July 2013 on 12 August 2013.

6.	The appeal tribunal hearing took place on 20 November 2013.  The appellant was present and was represented.  There was a Departmental presenting officer present.  The appeal tribunal disallowed the appeal and confirmed the decision dated 18 July 2013.

7.	On 4 March 2014 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS).  On 21 March 2014 the application for leave to appeal was refused by the legally qualified panel member (LQPM).

	Proceedings before the Social Security Commissioner

8.	On 17 April 2014 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 22 May 2014 written observations on the application for leave to appeal were sought from Decision Making Services (DMS) and such observations were received on 13 June 2014.  In these initial written observations, Mr Kirk, for DMS, supported the application for leave to appeal on one of the grounds submitted on behalf of the applicant.  Written observations were shared with the applicant and his representative on 13 June 2014 and a further copy was forwarded on 21 July 2014.

9.	On 17 October 2014 I granted leave to appeal.  In granting leave to appeal I gave, as a reason that an arguable issue arose as to whether the statement of reasons for the appeal tribunal’s decision was adequate to explain the appeal tribunal’s assessment of the evidence which was before it.

	Errors of law

10.	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.  What is an error of law?

11.	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.”

	Submissions of the parties

12.	In the application for leave to appeal, the applicant’s representative submits that the decision of the appeal tribunal was in error of law on the basis of a number of grounds, as follows:

(i)	the manner in which the appeal tribunal addressed the issue of the risk of self-harm;

(ii)	the appeal tribunal’s conclusions on entitlement to the lowest rate of the care component of DLA on the basis of an inability to prepare a cooked main meal for himself.  The appeal tribunal had not properly assessed the evidence in connection with this issue including evidence of a lack of motivation to self-care and prepare a cooked main meal and the assistance which the appellant received from his mother and friend to look after himself and to prevent self-neglect.

(iii)	the manner in which the appeal tribunal assessed the evidence in connection with alcohol dependence.  The appeal tribunal was under a duty to consider the assistance which the appellant required to help him stop drinking or coping with the consequences of drinking.

(iv)	the appeal tribunal had not properly assessed the evidence in connection with the conditions of entitlement to the lower rate of the mobility component of DLA, as set out in section 73(1)(d) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992.

13.	In his written observations on the application for leave to appeal, Mr Kirk, for DMS, opposed the application for leave to appeal on the basis of grounds (i) to (iii) but supported the application on one part of ground (iv).

	Analysis

14.	The evidence which was available to the appeal tribunal in connection with entitlement to the lower rate of the mobility component of DLA was summarised by Mr Kirk in his written observations on the application for leave to appeal as follows:

‘As noted by Mr F (the appellant) had indicated that he would suffer from panic attacks in unfamiliar places at page 14 of the renewal self assessment form (Tab no 1 of the scheduled documents).  In a letter dated 29 February 2012, Dr A a general practitioner (GP) at (the appellant’s) surgery indicated that he suffered from depression and anxiety symptoms.  In a further letter dated 22 July 2012, Dr McG another GP at the practice again stated that (the appellant) had been unwell with depression, anxiety and psychotic issues (both of those letters are attached at Tab no 7 of the scheduled documents).  In addition there is another letter dated 20 April 2012.  In that letter Dr McG has stated that (the appellant) had managed to tackle his alcohol related problems but this is associated with significant anxiety like symptoms.  At paragraph 5.ii. of the psychologist’s impact report, reference was made to the fact that (the appellant) was suffering from both state and trait anxiety.’

15.	To that evidence there is added the oral evidence of the appellant as given on the day of the appeal tribunal hearing.

16.	What did the appeal tribunal decide in connection with entitlement to the lower rate of the mobility component of DLA?  Paragraph 21 of the statement of reasons for the appeal tribunal’s decision is as follows:

‘We saw no entitlement to any of the low rate mobility.  The appellant described feeling anxious but it was our view he could manage to go out on his own and in unfamiliar surroundings, if he ran into difficulties, could ask for help.’

17.	In his written observations on the application for leave to appeal, Mr Kirk has submitted:

‘Whilst it is true to state that the tribunal have considered (the applicant’s) evidence regarding his anxiety as it has referred to it in the above, it is also true to state that the tribunal have not made any reference to the other evidence regarding anxiety I have referred to in my opening paragraph on this point.  Therefore it is impossible to know if the tribunal considered this evidence and rejected it or if it simply overlooked this evidence.  Given the fact that this evidence came from a variety of medical sources there was I submit an onus upon the tribunal to consider it and to give explicit reasons for accepting or rejecting that evidence (see paragraph 60 of the unreported Northern Ireland Commissioner’s decision C8/08-09(IB)).

In addition I would again refer to (the applicant’s) comments at page 14 of his self assessment form where he stated that he could become aggressive and lash out at people.  I note that Dr McG in the letter dated 22 July 2013 (attached to Tab no 7 in my papers) indicated that (the applicant) could have psychotic issues.  Whilst it is not expressly stated I would submit that this evidence would indicate that (the applicant) could require supervision to prevent him from becoming aggressive.  There is nothing in the reasons for decision to indicate that the tribunal ever considered this issue.’

18.	I have to agree with the submission made by Mr Kirk.  There was a significant amount of evidence before the appeal tribunal relating to a potential satisfaction of the conditions of entitlement to the lower rate of the mobility component of DLA.  The appeal tribunal has set out its assessment of the appellant’s own evidence.  I am of the view that the appeal tribunal ought to have set out what it made of the additional evidence which was before it, as summarised by Mr Kirk, and which had the potential to found an entitlement to the lower rate of the mobility component of DLA.

19.	In C8/08-09(IB), I stated, at paragraphs 61-62:

	‘60.	The reason for my rejection of the DMS submission is that there is a clear duty on appeal tribunals to undertake a rigorous assessment of all of the evidence before it and to 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.

	61.	In R2/04(DLA) a Tribunal of Commissioners, stated, at paragraph 22(5):

		‘ … there will be cases where the medical evidence before a particular tribunal will be unsatisfactory or deficient in an important respect.  It will often be open to the tribunal hearing such a case to reject the medical evidence for that reason.  Indeed, it will sometimes be its duty to do so.  However, and in either case, the tribunal cannot simply ignore medical evidence which is not obviously irrelevant.  It must acknowledge its existence and explain its reasons for rejecting it, even if, as will often be appropriate, such reasons are fairly short.  We repeat, the decision whether a person suffers from a particular medical condition is a matter for the tribunal.  That body must have regard to the whole of the evidence, including the medical evidence.  Where it rejects medical evidence it must, unless the reasons are otherwise apparent, explain why it does so.  Anything less is likely to result in an appeal being brought on the grounds that the tribunal has not given adequate reasons or that its decision is against the weight of the evidence.’’

20.	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.

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

21.	Having found that there was a procedural irregularity which was capable of making a material difference to the outcome or the fairness of the proceedings, I do not have to consider the appellant’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.

22.	In particular I would agree with the observations made by Mr Kirk in connection with submissions made by the appellant’s representative in connection with the relevance of a previous award.  It is important to remember that in R3/04(DLA) (Quinn v Department for Social Development [2004] NICA 22), the claimant was in receipt of the highest rate of the care component and the higher rate of the mobility component of DLA for a fixed period.  Part of the evidence in respect of that award was the report of an examination by an Examining Medical Practitioner (EMP).  A renewal claim was disallowed by the Department and that decision was upheld by an appeal tribunal.  In turn, the decision of the appeal tribunal was upheld by the Social Security Commissioner.

23.	Before the Court of Appeal, it was submitted that the appeal tribunal that the appeal tribunal had failed to give any consideration to the first EMP report.  Since the appellant had been awarded DLA, on the first claim, and the medical evidence suggested that there had been no improvement in her condition the appeal tribunal ought to have taken account of the EMP report in relation to the first application.  The argument continued that, in turn, the Social Security Commissioner should have recognised that the appeal tribunal had failed to have regard to the first report and ought to have reversed the appeal tribunal’s decision on that account.

24.	The Court of Appeal dealt with the latter argument quickly holding that as the issue concerning the first EMP report had not been argued before the Social Security Commissioner, it would be quite unrealistic to expect the Commissioner to disinter an argument from relevant obscurity.  More obviously, however, the Court of Appeal held, at paragraph 35, that:

‘The ultimate disposal of this argument, however, is provided by the consideration that the first report could not have made any difference to the outcome of the appeal to the Tribunal.  The second request for DLA was a renewal application.  Each application must be treated anew.  The reason for this is clear.  The claimant for DLA must establish a level of disability at the time the application is made and for a period of six months after the benefit becomes payable.  It would avail the appellant nothing to show that in November 1997 she was considered to be sufficiently disabled to be entitled to the benefit.  She must show a contemporaneous disability of such severity that she was entitled to the benefit at the time of application and beyond.’

25.	In relation to the appeal tribunal’s requirement to consider the first EMP report, the Court of Appeal, had the following to say, at paragraphs 39-42:

‘[39] The final argument on this subject was that the Tribunal had failed to explain why it had concluded that the appellant no longer qualified for the benefit if her condition had not improved from that set out in the first EMP’s report; or if it concluded that the appellant’s condition had improved, on what basis it made that finding.

[40] The requirement to give reasons where a Tribunal decides that a claimant for benefit is no longer entitled to a benefit of which he or she had been in receipt previously was considered by the Social Security Commissioner in R(M)1-96 CM/20/1994.  In that case the claimant had lost part of his right leg in an accident and had arthritis in his left hip and spine.  His renewal claim for mobility allowance in 1992 was rejected on the ground that he was neither unable, nor virtually unable, to walk.  The claimant contended that his walking ability had in fact got worse since he was originally awarded mobility allowance in 1991.  A disability appeal tribunal confirmed the rejection of his claim.  The claimant appealed to a Social Security Commissioner.  It was held that the fact of a previous award does not raise any presumption in the claimant’s favour or result in the need for consistency having to be treated as a separate issue on a renewal claim.  However, the requirement for a tribunal to give reasons for its decision means that it is necessary for a tribunal to explain why it is not renewing a previous award unless this is obvious from its findings.

[41] We agree with this reasoning and intend to apply it to the present case.  Here the Tribunal has not explained why it is not following the course previously taken in making an award of DLA but, in our view, there was no need to do so.  The reason that the Tribunal refused DLA was that it had concluded that the appellant did not suffer from the level of disability that had to be present before the benefit was payable.  As the Court of Appeal said in Evans, Kitchen and Others v. Secretary of State, [now reported as R(I)5/94] a previous award carries no entitlement to preferential treatment on a renewal claim for a continuing condition.  In the R(M)1-96 case the Social Security Commissioner put the point in this way: -

“… on a renewal claim, which is a fresh claim for benefit for a period not covered by any previous award, there can be no question of the tribunal being bound to follow any previous decision awarding benefit for an earlier period, nor, in determining whether the conditions for benefit are satisfied on the facts as they find them to be at the date relevant for their decision, is any different standard to be applied according to whether benefit has or has not been awarded before: ex p. Viscusi, supra; CM/205/1988 components of the same benefit dealt with by the same tribunal paragraph 13 (not doubted on this point in the later cases).” (paragraph 13.4)

[42] The Tribunal said that it had concluded that the appellant had full function of her upper arms and lower limbs and that she could attend to her bodily functions unaided and unsupervised day and night.  It also said that she could cook a main meal for herself and has no mobility needs.  This statement was sufficient to convey to the appellant why she was not going to receive the benefit.  Put simply, the Tribunal had concluded that she had exaggerated her condition and that she was not truly disabled.’

	Disposal

26.	The decision of the appeal tribunal dated 20 November 2013 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.

27.	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 18 July 2013, which decided that the applicant was not entitled to DLA from and including 22 May 2013;

(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

Chief Commissioner

12 November 2014