DE-v-Department for Social Development (DLA) [2014] NICom 83

Decision No:  C24/14-15(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 3 December 2013

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is a claimant’s application for leave to appeal from the decision of an appeal tribunal sitting at Craigavon.

2.	An oral hearing of the application has not been requested and I consider that the proceedings may properly be determined without a hearing.

3.	For the reasons I give below, I grant leave to appeal.  I allow the appeal and under Article 15(8)(b) of the Social Security (NI) Order 1998 I set aside the decision of the appeal tribunal and I remit the appeal to a newly constituted tribunal for determination.

REASONS

	Background

4.	The applicant had claimed disability living allowance (DLA) from the Department for Social Development (the Department) from 1 September 2010 and had been awarded the low rate of the mobility component and the middle rate of the care component until 17 November 2012.  He made a renewal claim on the basis of needs arising from a stroke, headaches, carpal tunnel, diminished eyesight and glaucoma.  The Department obtained a report from the applicant’s general practitioner (GP).  The applicant was examined on behalf of the Department by an examining medical practitioner (EMP).  On 22 October 2012 the Department decided on the basis of all the evidence that the applicant did not satisfy the conditions of entitlement to DLA from and including 18 November 2012.  The applicant appealed.

5.	The appeal was considered by a tribunal consisting of a legally qualified member (LQM), a medically qualified member and a disability qualified member.  The tribunal disallowed the appeal.  The applicant then requested a statement of reasons for the tribunal’s decision and this was issued on 5 March 2014.  The applicant applied to the LQM for leave to appeal from the decision of the appeal tribunal but leave to appeal was refused by a determination issued on 16 April 2014.  On 12 May 2014 the applicant applied to a Social Security Commissioner for leave to appeal.

	Grounds

6.	The applicant submits that the tribunal has erred in law on the basis that:

(i)	the tribunal placed too much weight on the EMP report;

(ii)	the tribunal did not address the applicant’s criticisms of the EMP report;

(iii)	the tribunal acted unfairly by failing to await the results of an MRI scan.

7.	The Department was invited to make observations on the applicant’s grounds. Mr Hinton of Decision Making Services (DMS) responded on behalf of the Department.  He submitted that the tribunal had not erred in law as alleged and indicated that the Department did not support the application.

	Assessment

8.	An appeal lies to a Commissioner from any decision of an appeal tribunal on the ground that the decision of the tribunal was erroneous in point of law.  However, the party who wishes to bring an appeal must first obtain leave to appeal.

9.	Leave to appeal is a filter mechanism.  It ensures that only applicants who establish an arguable case that the appeal tribunal has erred in law can appeal to the Commissioner.

10.	An error of law might be that the appeal tribunal has misinterpreted the law and wrongly applied the law to the facts of the individual case, or that the appeal tribunal has acted in a way which is procedurally unfair, or that the appeal tribunal has made a decision on all the evidence which no reasonable appeal tribunal could reach.

11.	The first ground advanced by the applicant is that the tribunal placed too much weight on the report of the EMP.  However, in addition to the EMP report, the tribunal had a factual report from his GP, various appointment letters and had sight of his GP records.  The tribunal found that the EMP report was consistent with the primary medical evidence.  On the basis of all the evidence, the tribunal found that there were no disabling effects from a stroke, there was mild carpal tunnel syndrome, and that the applicant had adequate vision, no significant problem with back pain or function and no current depression.  I do not consider that the tribunal can be said to have placed undue weight on the EMP report.  It is evident that it drew its information on the applicant’s medical conditions equally as much from the GP report and medical records.

12.	It is evident that the tribunal had before it the applicant’s letter of complaint about the EMP and the response from ATOS.  The applicant’s main complaint about the EMP concerned her use of a mobile phone during the examination and the lack of a walking test.  However, it is invariably not the practice of the EMP to conduct a walking test.  The evidence of the EMP in the particular case was not evidence based on observation of the applicant in the act of walking, but rather an estimate based on general clinical examination.

13.	While the applicant indicated that he had emphasised to the EMP that his 13-year old daughter did the cooking, he indicated in oral evidence to the tribunal that he could prepare a main meal for one and there was no evidence in relation to his physical condition to suggest otherwise.  The tribunal was entitled to find that the EMP assessment was in accordance with the medical evidence, regardless of the applicant’s complaint.

14.	I find that there is no merit in the applicant’s first two grounds. I now turn to the third ground.

15.	In making its decision not to await the results of an MRI scan, the tribunal was aware that the applicant had undergone a recent scan on his back.  The tribunal does not record that any application was made to adjourn for the results of the scan, and it is not submitted that one was made.  The applicant was legally represented at the hearing by a solicitor.

16.	In VG v Department for Social Development [2014] NI Com 25, I said:

33.	I further consider that the tribunal’s failure to consider whether it should adjourn to await the report of the MRI scan was in breach of the requirements of procedural fairness.  The fact that the applicant had a CAB representative who could have asked for an adjournment does not absolve the tribunal from its responsibility to at least consider the question. In Mongan v Department for Social Development [2005] NICA, at paragraph 18, Kerr LCJ said “In carrying out their inquisitorial function, the tribunal should have regard to whether the party has the benefit of legal representation…  Where an appellant is legally represented the tribunal is entitled to look to the legal representatives for elucidation of the issues that arise.  But this does not relieve them of the obligation to enquire into potentially relevant matters. A poorly represented party should not be placed at any greater disadvantage than an unrepresented party”. I consider that the same principle applies to the requirement to decide whether to adjourn proceedings for further relevant evidence. The tribunal might not in the event have decided that it should adjourn, and of course enjoyed a wide margin of discretion on this question.  However, it needed to address the question. The tribunal acknowledges as much in its own statement of reasons.  I find that the breach of the requirements of procedural fairness was material to the outcome of the proceedings and that the tribunal has erred in law.

17.	The same principles are in issue in the present application.

18.	The tribunal was concerned with the applicant’s functional ability and heard the applicant’s oral evidence to the effect that he walked at half pace and could walk for 5/6 minutes.  It recorded in the statement of reasons that the applicant “described walking less than 50 metres very slowly, with a numb left leg and no warning falls at least once a month”.  The tribunal stated that “The medical evidence is consistent with the EMP’s findings of full limb and back function.  The evidence does not establish any condition or on-going leg weakness leading to a propensity to fall.  [The applicant] can walk at least 200 metres steadily at a normal pace without stopping because of severe discomfort”.

19.	The tribunal had based its decision on an x-ray of the lumbar spine dated 3 June 2011 showing minor degenerative change at L3/4 and L4/5.  An x-ray of the thoracic spine showed minor scoliosis.  The tribunal decided that these findings “do not indicate a significant problem with back pain or function”.

20.	I have seen a copy of the MRI scan report.  While I am not medically qualified, it seems readily apparent from the report that it gives significant additional information, particularly in relation to the lumbar spine.  This part of the report reads:

“L3-L4:
Significant degenerative change with facet joint hypertrophy – thickening of the ligamentum flavum and narrowing of the spinal canal with compression of the thecal sac. Potential for symptoms attributable to spinal stenosis.
Broad-based disc bulge with some foraminal stenosis left side – potential for L3 nerve root impingement.
L4-L5:
Facet joint hypertrophy.
Posterior disc osteophyte formation with bilateral foraminal stenosis and potential for bilateral L4 nerve root impingement.
L5-S1:
Facet joint hypertrophy.
Broad-based disc bulge with a small annular fissure. 
Contact with the left S1 nerve root within the lateral recess and potential for nerve root irritation.
Bilateral foraminal stenosis potential for bilateral L5 nerve root impingement.”

21.	It appears to me that evidence obtained through the MRI scan had the potential to influence the tribunal’s decision – since it had considered the credibility of the applicant’s evidence in the light of the existing x-ray reports.  The applicant had indicated to the tribunal that a full spinal scan had been conducted in the previous week.  It further appears to me that the tribunal should have given some consideration to the question of whether to adjourn to see the further evidence as part of its inquisitorial function.  The applicant and those representing him might well have rejected the opportunity of adjournment – and could have had no complaint afterwards.

22.	However, regardless of whether the applicant or his representative had sought adjournment, I consider that the tribunal independently should have addressed the question of whether to adjourn for the report of the MRI scan, and that its failure to do so was a denial of procedural fairness amounting to an error of law.  Having seen the report of the scan, it appears to me that the report would at least have had the potential to influence the tribunal’s decision and therefore could have been material to the outcome of the appeal.

23.	I set aside the decision of the appeal tribunal and I remit the appeal to a newly constituted tribunal for determination.

(signed):  O Stockman

Commissioner

17 December 2014