MG-v-Department for Social Development (DLA) [2015] Nicom 26
Decision No:  C41/14-15(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 12 March 2014

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 12 March 2014 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.  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.

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

4.	On 11 February 2013 a decision-maker of the Department decided that the appellant should have an entitlement to the middle rate of the care component of DLA from and including 31 March 2013, on the basis of a renewal claim to that benefit.  Following receipt, on 13 March 2013, of a letter disputing the relevant decision, the decision dated 11 February 2013 was reconsidered on 25 March 2013 but was not changed.  An appeal against the decision dated 11 February 2013 was received on 16 April 2013.

5.	Following an earlier adjournment, the substantive oral hearing of the appeal took place on 12 March 2014.  The appellant was present and was represented.  The Department was represented by a presenting officer.  The appeal tribunal disallowed the appeal and confirmed the decision dated 11 February 2013.

6.	On 22 October 2014 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS) from Ms Rogers of the Law Centre (Northern Ireland) who was now on record for the appellant.  On 14 November 2014 the application for leave to appeal was refused by the legally qualified panel member (LQPM) of the appeal tribunal.

	Proceedings before the Social Security Commissioner

7.	On 25 November 2014 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 6 January 2015 observations on the application for leave to appeal were requested from Decision Making Services (DMS) and these were received on 20 January 2015.  In these written observations, Mr Hinton, for DMS, supported the application on one of the grounds submitted on behalf of the appellant.  In addition, Mr Hinton identified an accidental error in the recording of the relevant date of benefit entitlement in the appeal tribunal’s decision notice which, he submitted, could be corrected under regulation 57 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.

8.	Written observations were shared with the appellant and Ms Rogers on 20 January 2015.  On 12 February 2015 written observations in reply were received from Ms Rogers.  In these written observations, Ms Rogers noted the support from Mr Hinton for one of the grounds in the application for leave to appeal but also continued to rely on the other unsupported grounds.  Ms Rogers also noted the identification by Mr Hinton of the accidental error in the record of the appeal tribunal’s decision notice and agreed with Mr Hinton’s submission as to the effect of that accidental error.

9.	On 16 March 2015 I granted leave to appeal.  In granting leave to appeal I gave, as a reason, that ‘… an arguable issue arises as to the manner in which the appeal tribunal assessed 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.”

	What was the agreed error of law in the instant case?

12.	As was noted above, on 13 March 2013 a letter was received in the Department from the appellant.  In this letter, which itself was dated 12 March 2013, the appellant disputed the decision dated 11 February 2013 made on her renewal claim to DLA.  To the letter of 13 March 2013 the appellant attached correspondence dated 11 March 2013 from Dr B, a general practitioner (GP) at the surgery at which she was registered as a patient, and a medical report from Mr M, a Consultant orthopaedic Surgeon at Musgrave Park Hospital.  In her letter of 12 March 2013, the appellant sets out in some detail the reasons why she disputes the decision of the Department dated 11 February 2013.  The dispute centres on the decision not to renew any entitlement to the mobility component of DLA.  In addition the appellant makes reference to the correspondence from Dr B.

13.	In the relevant correspondence, Dr B states the following:

‘I write to provide evidence on (the claimant’s) behalf regarding her significant musculoskeletal problems which cause reduced mobility, quality of life and chronic pain.  On 3/2/12 this lady underwent right total knee replacement which helped to reduce her joint pain and stiffness but she still does complain of some pain in this knee.  Unfortunately she also suffers from more generalized osteoarthritis and in particular pain from her symphysis pubis joint.  This has likely resulted from damage during childbirth in 1972 and her pain in this region has been progressive since that time.  She has been seen on two occasions by orthopaedic consultants in relation to this matter but surgery is not indicated.  I enclose copy of correspondence from her most recent orthopaedic consultation.

As a result of this pain, she suffers from daily pain which is unpredictable and can result in falls.  She therefore needs assistance from either a walking aid or another person.

She feels her mobility and restriction has not improved since the knee surgery.  I can confirm that she attends the surgery with a walking aid and assistance of her husband.  She appears to be suffering from genuine and chronic daily pain and disability to a marked degree and would support her current appeal on this matter.’

14.	I can understand how the appellant, at the date of submission of her letter of dispute, would have formed the view that the correspondence from Dr B was supportive of the submissions which she was making in to connection the Department’s decision of 11 February 2013 and, in particular, the aspect of that decision which refused entitlement to the mobility component of DLA on the basis of her renewal claim.

15.	I have noted that at Tab 5 of the original appeal submission there is a copy of the reconsideration decision made by another decision-maker of the Department on 25 March 2013 and a copy of the reasons for that decision.  It is clear from the reasons for the reconsideration decision that the decision-maker, on 25 March 2013, had before him the appellant’s letter of dispute of 12 March 2013 and the correspondence from Dr B.  There is a reference to ‘… further evidence received 13/03/13.’  The reasons for the reconsideration make reference to and rely heavily on an earlier report, dated 31 January 2013, which had been prepared by another GP in the appellant’s registered practice.  A copy of that report was attached to the original appeal submission as Tab No 2.  Nonetheless, the decision-maker also makes reference to Dr B’s correspondence, as follows:

‘… and whilst the letter states that she can be prone to falls it further states that a walking aid can reasonably be used to safeguard against falling.’

16.	While I am not sure that the correspondence from Dr B does conclude that a danger of falling can be safeguarded against by the reasonable use of a walking aid, the more important point is that the decision-maker did take into account, albeit to a limited extent, the further evidence which the appellant had submitted in support of her letter of dispute against the Departmental decision of 11 February 2013.

17.	In the appeal submission, prepared for the oral hearing of the appeal, the Appeal Writer has submitted:

‘Further medical evidence completed by Dr B GP, indicates that (the claimant) suffers from daily pain from her pubis joint which is unpredictable and this can result in falls.  It is indicated that she feels her mobility and restriction has not improved since her knee surgery and Dr B confirms that she attends the surgery with a walking aid and assistance of her husband.

…

I submit that if (the claimant’s) walking ability were limited to the extent described it would be reasonable that her GP would be fully aware of it and she would have made appropriate reference to it in her report … Additionally, I note that although Dr B states that (the claimant) attends the surgery with a walking aid and the assistance of her husband, there is no specific indication that her mobility is severely restricted.’

18.	In the application for leave to appeal to the Social Security Commissioner, the third ground advanced on behalf of the appellant was as follows:

‘The Tribunal has failed to make reference to a letter completed by Dr B dated 11 March 2013.  The letter is supportive of (the claimant) … If rejected the Tribunal has failed to give adequate reasons for its decision.  Or if not considered, the Tribunal has failed to adequately assess the evidence.’

19.	In his written observations on the application for leave to appeal Mr Hinton, for DMS, has submitted the following in connection with this ground:

‘This letter from Dr B dated 11 March 2013 is contained within tabbed documents 4-4B in the appeal papers.  The tribunal in its reasoning has referred to various medical reports and letters from Doctors McI, S and McK; however I do not see a reference to the aforementioned letter from Dr B.  Mrs G’s representative in the grounds of appeal has outlined the contents of Dr B’s letter with regards to reduced mobility and chronic pain resulting in falls.  As this correspondence formed a vital part of Mrs G’s evidence I would contend the tribunal had a duty to comment on the information contained within it.  In an unreported NI Commissioner’s decision C16/08-09(DLA) the then Commissioner Mullan stated that the tribunal had a duty to undertake a rigorous assessment of the evidence before it.  At paragraphs 54 and 55 he stated:

“Nonetheless, 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.

In R2/04(DLA) (T) 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 in 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.’”

In the statement of reasons the tribunal made no reference to Dr B’s letter; therefore no indication was given as to how this piece of evidence was assessed and whether or not it was accepted or rejected.  Consequently the tribunal has erred in law in this regard.’

20.	I agree with the submission made by Mr Hinton in support of the application for leave to appeal and, for the reasons which are set out by him, agree that the decision of the appeal tribunal is in error of law on the basis of this submitted ground.  Having been advised of the decision dated 11 February 2013, which was adverse to the appellant to the extent that there was no renewal of her previous entitlement to the higher rate of the mobility component of DLA, the appellant sought to exercise her legal right to challenge that decision.  She did so through the correspondence which was forwarded to the Department on 12 March 2013.  The appellant went to the effort of obtaining additional medical evidence from her GP which she attached to her correspondence of 12 March 2013.  That medical evidence formed a significant part of the appellant’s case in challenging the decision dated 11 February 2013.  In those circumstances the appellant was entitled to know, through the statement of reasons for the appeal tribunal’s decision, what the appeal tribunal made of that evidence.  To use the language of R2/04(DLA) (T), if the appeal tribunal rejected what was obviously relevant evidence then it was obliged to explain why it did so.  Having failed to do so, the statement of reasons for the appeal tribunal decision is not adequate.

	The appellant’s other grounds for appealing

21.	Having found, for the reasons set out above, that the decision of the appeal tribunal is in error of law on the basis of one of the submitted grounds I do not have to consider the additional grounds submitted on her behalf.  To the extent that those grounds raise issues relating to the evidence then they might be re-argued when the appeal is remitted to a differently constituted appeal tribunal for re-determination.

	Disposal

22.	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 11 February 2013, in which a decision-maker of the Department decided that the appellant should have an entitlement to the middle rate of the care component of DLA from and including 31 March 2013;

(ii)	the appellant 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;

(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

6 July 2015