MB-v-Department for Social Development (DLA) [2015] NICom14
Decision No:  C28/14-15(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 7 November 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 Armagh.

2.	For the reasons I give below, 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 refer the appeal to a newly constituted tribunal for determination.

	REASONS

	Background

3.	The appellant claimed disability living allowance (DLA) from the Department for Social Development (the Department) from 19 October 2012 on the basis of needs arising from fibromyalgia, depression, irritable bowel syndrome, stomach problems, grand mal seizure and skin allergy.  The Department obtained a report from the appellant’s general practitioner (GP).  On 16 January 2013, the Department decided on the basis of all the evidence that the appellant did not satisfy the conditions of entitlement to DLA. She appealed.

4.	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 appellant then requested a statement of reasons for the tribunal’s decision and this was issued on 11 February 2014.  The appellant 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 20 May 2014.  On 20 June 2014 the appellant applied to a Social Security Commissioner for leave to appeal.

	Grounds

5.	The appellant, represented by Mr R... of Newry and Mourne ME/FM support group, presented a large volume of material in two folders to me.  From this, I understand that the appellant submits that the tribunal has erred in law on the basis that:

(i)	the tribunal made perverse findings on the evidence;

(ii)	the tribunal failed to give adequate reasons;

(iii)	the tribunal misdirected itself in law;

(iv)	the tribunal hearing was procedurally unfair.

6.	The Department was invited to make observations on the appellant’s grounds.  Mr Kirk of Decision Making Services (DMS) responded on behalf of the Department.  He submitted that the tribunal had not erred in law as alleged.  However, he indicated that the Department supported the application on the basis of another ground – namely that in addressing the issue of the prospective test, the tribunal had arguably erred in considering what had happened in the period of 6 months following the claim, rather than what was likely to happen, relying on C5/05-06(DLA).

7.	Mr R... responded to the submissions of Mr Kirk in a number of detailed submissions of his own.

	The tribunal’s decision

8.	The tribunal had before it a submission from the appellant’s representative.  The submission indicated that the appellant had resumed employment on 2 April 2013 and that there had been some improvement in her condition since the date of the decision under appeal.  The submission requested the tribunal to deal with the claim in two periods – namely the period from the date of claim to 2 April 2013 and the period after that date.

9.	The appellant submitted a variety of Social Security Commissioners’ decisions, an extract from the “ESA Handbook” and a medical report of Dr L... The tribunal further had a report from Dr W..., addressed to capacity for work, and the appellant’s medical records.  The tribunal heard oral evidence from the appellant and from her daughter.

10.	The tribunal accepted that the appellant suffered from fibromyalgia and that she had some mobility restriction over the period of her claim, and that her condition had improved from February 2013.  However, the tribunal found that she overstated the impact of her disability on her mobility, finding that the significant limitation claimed was not supported by the available medical evidence.  The tribunal found that she was not virtually unable to walk and that she did not have a requirement for guidance or supervision in unfamiliar places.

11.	In relation to care, the tribunal found that appellant’s medical conditions were not so disabling most of the time that she reasonably required attention from another person sufficient to meet any of the statutory tests.  Again the tribunal based this conclusion on the available medical evidence.  It similarly found that she should be capable of performing all the tasks in the preparation of a cooked main mean for one, safely and unaided.

12.	The tribunal noted that the three-month qualifying period and six month prospective period must be met in each case.  It specifically observed:

“The tribunal took full account of all the Appellant’s medical conditions but did not consider in the light of the available medical evidence that these were so disabling as to render her virtually unable to walk.  The conditions of entitlement must also be satisfied for 3 months before the award begins (the qualifying period) and be likely to be satisfied for a period of 6 months from that date of award (the prospective period).  The appellant’s claim was made on 19/10/12 and yet 02/04/13 (within the 6 month prospective period) she had returned to full time employment albeit with some degree of difficulty”.

	Hearing

13.	I granted leave to appeal on 28 November 2014.  I held an oral hearing of the appeal on 14 January 2015.  Mr R... appeared on behalf of the appellant and Mr Kirk represented the Department.  I am grateful to the representatives for their submissions.

14.	Mr R... submitted a number of documents and made a range of submissions.  While Mr Kirk did not agree with the submissions of Mr Reid, he addressed the issue of whether the tribunal had erred in law by taking into account the prospective test in the manner which it did.  Meaning no disrespect to Mr R..., I consider that this is the key submission in the particular appeal and I will confine my observations to it.

15.	The tribunal made findings on the issue of the appellant’s mobility and care needs.  The tribunal further reasoned that the appellant had not satisfied the prospective test in any event as the period from the claim on 19 October 2012 to her return to work on 2 April 2013 was less than six months.  Mr Kirk submitted that the tribunal has erred in law in its approach to the prospective test.  He submits, referring to the decision of Mrs Commissioner Brown in C5/05-06(DLA), at paragraph 4, that the tribunal had erred in law by considering what had happened rather than what was likely to happen at the date of claim.  Mrs Commissioner Brown’s decision approved GB Commissioners decision CDLA/2878/2000.

16.	Mr Kirk submitted that the tribunal had heard evidence regarding the return to work in April 2013 and had failed to focus on the evidence as it was at the date of claim.  He submitted that there was ambiguity as to whether the findings of the tribunal were solely concerned with the date of claim or whether it had been influenced by the appellant’s return to work.

	Assessment

17.	The prospective test was laid down in section 72(2)(b)(i) and section 73(9)(b)(i) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 as it applies to care and mobility components respectively.  The test is whether the claimant “is likely to continue to satisfy one or other of those conditions throughout the period of six months”.  Initially from April 1992 - when DLA was introduced - a tribunal applying the prospective test could determine how long a condition had actually lasted using hindsight.  However, following the introduction of Article 13(8)(b) of the Social Security (NI) Order 1998, tribunals were precluded from having regard to circumstances not obtaining when the decision appealed against was made.  The consequence is that in applying the prospective test, a tribunal cannot address it with the benefit of hindsight.  Rather, the tribunal has to determine the issue from the standpoint of any evidence of prognosis available at the date of the decision appealed, ignoring the actual course of development of a particular condition.

18.	In the tribunal’s statement of reasons there is a rejection of the appellant’s evidence and a finding that this was overstated.  The tribunal made express findings to the effect that the disability conditions were not satisfied.  However, as indicated in the extract above, the tribunal also refers to the prospective test.  I find this aspect of the statement of reasons ambiguous, as there should have been no need to refer to the prospective test if the tribunal was satisfied that the conditions of entitlement were not satisfied at any time.

19.	I am satisfied that the tribunal erred in its approach to the prospective test.  It was not entitled to look at this question using hindsight, but was required by law to address the likelihood of the appellant’s condition persisting for 6 months from the standpoint of the evidence available from the date of claim to the date of decision.  By addressing this question on the basis of evidence that the appellant’s condition had improved to such an extent that she had resumed work, it erred in law.  The question then arises as to whether its decision on the disability conditions in isolation of the prospective test was nevertheless sustainable.

20.	Mr Kirk submits that it is not.  He submits that the reasons for the decision remain ambiguous and it is impossible to assess whether the tribunal has been influenced by the issue of the appellant’s return to work in reaching its principal findings.

21.	This is a finely balanced case, but I am narrowly persuaded that the tribunal’s findings cannot be divorced from its decision on the prospective test sufficiently clearly for me to say with certainty that they were not influenced by it.  I find that the tribunal has erred in law and I set aside its decision.

22.	The appellant asks me to make the findings the tribunal could have made and to decide the appeal myself.  However, I do not consider that I can do that.  I refer the appeal to a newly constituted tribunal for determination.

(signed):  O Stockman

Commissioner

26 March 2015