RR-v-Department for Social Development (DLA) [2015] NICom 29

Decision No: C30/14-15(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 22 February 2012

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 22 February 2012 is not in error of law.  Accordingly, the appeal to the Social Security Commissioner does not succeed.  The decision of the appeal tribunal that the Department, on 24 November 2009 had grounds to supersede an earlier decision dated 30 April 2008 and that the appellant was not entitled to disability living allowance (DLA) from and including 4 February 2009 is confirmed.

	Background

2.	On 30 April 2008 a decision-maker of the Department decided that the appellant satisfied the conditions of entitlement to the higher rate of the mobility component and the middle rate of the care component of DLA from 8 June 2008 to 7 June 2011.  On 24 November 2009 the decision dated 30 April 2008 was superseded and a decision was made that the appellant did not satisfy the conditions of entitlement to either component of DLA from and including 4 February 2009.  An appeal against the decision dated 24 November 2009 was received in the Department on 21 December 2009.  I shall refer to this appeal in the remainder of this decision as the ‘entitlement appeal.’

3.	On 9 January 2010 a decision-maker of the Department decided that an overpayment of DLA, amounting to £3902.80, for the period from 4 February 2009 to 17 November 2009, had occurred and which was recoverable from the appellant.  An appeal against the decision dated 9 January 2010 was received in the Department on 9 February 2010.  I shall refer to this appeal in the remainder of this decision as the ‘overpayment appeal.’

4.	The appeal was first listed for oral hearing on 22 April 2011 when it was adjourned with further directions.  A further oral hearing of the appeal was postponed by the legally qualified panel member (LQPM) on 13 October 2011.  The substantive oral hearing of the appeal took place on 22 February 2012.  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 24 November 2009.

4.	On 31 July 2013 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS).  On 10 October 2013 the application for leave to appeal was refused by the LQPM.

	Proceedings before the Social Security Commissioner

5.	On 14 February 2014 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 6 May 2014 observations on the application for leave to appeal were sought from Decision Making Service (DMS).  In written observations received on 4 June 2014, Mr Kirk, for DMS, opposed the application on the grounds submitted by the appellant.  Written observations were shared with the appellant and his representative on 10 June 2014.  On 8 July 2014 written observations in reply were received from the appellant’s representative which were shared with Mr Kirk on 17 July 2014.

6.	On 6 November 2014 I accepted the late application for leave to appeal for special reasons.  On 11 December 2014 I granted leave to appeal in this and a related application for leave to appeal which the appellant had made to the Social Security Commissioner.  On the same date I directed an oral hearing of the appeal.

7.	The oral hearing took place on 13 January 2015.  There then followed a delay in the promulgation of this decision for which apologies are extended to the parties to the proceedings.  The delay was due, in part, to the mandatory relocation of the Tribunals Hearing Centre to a new location in the spring of 2015.

	Errors of law

8.	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?

9.	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.”

	Analysis

10.	In the application for leave to appeal which was received in the Office of the Social Security Commissioners, it was submitted that the decision of the appeal tribunal was in error of law on the basis that:

‘In the statement of reasons it states that both decisions are inter-linked and ‘both appeals had been listed together’.  However this is wrong.  I enclose copies of the appeal dates and times I received from the Appeal service in the post showing two different times for these two appeals to be heard.  On the day the first appeal was heard but the second one was not and I was not advised by the panel that the second appeal would not be taking place.

Also in paragraph 12 of statement of reasons it states ‘In respect of the overpayment no argument had been advanced on behalf of the appellant.  The appeal was on the basis that he was entitled to the benefit and therefore overpayment did not arise.’  This is not the case because the overpayment was the second appeal which was not heard.  As appeal did not take place I could not dispute the overpayment.  When the decision of the appeal was posted out it came out separately with each reference number.

Also I have received notification that I was overpaid £3753.10 and this is being deducted from my Employment and Support Allowance.  However I was observed during the period of 3rd February 2009 to 30th May 2009 during which period I was still being paid DLA right up to November 2009.  My case went to court for the period 3rd February to 30th May and this was dismissed (I enclose copy of my solicitor’s letter).  Through my interviews I always stated that I could walk with aids of splints, walking stick and painkillers.  At no time did I ever dispute this.  As the time I was being investigated was between February and May surely if DLA continued to pay me up to November 2009 that was their mistake and I should not be penalised for their mistake.’

11.	As was noted above, the appellant commenced appeal proceedings against two decisions of the Department, resulting in the ‘entitlement’ and ‘overpayment’ appeals.  The appeal tribunal disallowed both appeals and the appellant commenced proceedings before the Social Security Commissioners in respect of both appeal tribunal decisions.  It is clear that the grounds which are set out above are targeted at the appeal tribunal’s decision in respect of the ‘overpayment appeal’.  I have made a separate decision in respect of the challenge to the ‘overpayment appeal.’

12.	The grounds do not directly impugn the decision of the appeal tribunal in respect of the ‘entitlement appeal.’  For that reason, Mr Kirk, for DMS, in his written observations on the application for leave to appeal, submitted:

‘(The claimant) has not made any contentions regarding the tribunal’s consideration of the entitlement issues in this case.  Having considered the record of proceeding and the reasons for decision relating to the entitlement conditions for DLA I could not identify any error in law in the tribunal’s reasoning.’

13.	At the oral hearing of the appeal, Mr McA... emphasised that he was challenging the decision of the appeal tribunal in the ‘entitlement appeal.’  The basis of that challenge was as follows.  He submitted that the appeal tribunal hearing should have been adjourned.  He submitted that at the outset of the oral hearing of the appeal he had sought such an adjournment.  The basis for seeking the adjournment was that there was a considerable body of documentary evidence which had only been made available on the day of the appeal tribunal hearing.  He had not had access to that evidence in advance of the oral hearing and required time to consider that evidence.

14.	In the record of proceedings for the appeal tribunal hearing, the following exchanges are noted:

‘Clerk: Submissions sent 22/2/10 to the appellant.

[Appellant’s representative indicated he did not have copy submission.  Representative given copy of statement.  Case had been listed for 9.45 (and O.P. @ 10.30).

At 11 am the hearing recommenced.  The appellant’s representative indicated an unwillingness to confirm acceptance of evidence as per terms of adjournment of 22/4/11.  It was pointed out to representative he had sent in letter last Wednesday confirming he had received evidence].

Representative: We spent 2 hours with it.  Solicitor had another appointment.  I can sign form but I haven’t had chance to look at all these papers.

I did not know he had been interviewed.

Claimant’s Rep: I am content to proceed but I haven’t read the papers.

Representative: I would like an adjournment to study the papers.

Claimant: I want to proceed.

Representative: I tried to explain to appellant differences between court and tribunal and DLA.  I am content to try.’

15.	There is no requirement, of course, for the record of proceedings for an appeal tribunal hearing to be a verbatim account of all that transpired at the hearing – see the decision of the Chief Social Security Commissioner in C48/99-00(DLA).  I have no hesitation, however, in accepting the accuracy of what has been set out above.  At the oral hearing before me, Mr McA... submitted that he was not given any documentation during the course of the oral hearing of the appeal other than having been given the opportunity to see the appellant’s general practitioner records.  With respect to Mr McA... I do not accept that submission.  I found that Mr McA... was somewhat muddled in his recollection of the events leading up to and during the course of the oral hearing of the appeal and in connection with the documentation relevant to the issues arising in the appeal.  That is not surprising as the appeal proceedings have been going on for a considerable length of time; the issues arising are complex and the documentation somewhat voluminous.  Mr McA... was also endeavouring to deal with two separate appeals relating to the appellant.  I am of the view that his recollection of what happened in connection with the paperwork which was available was somewhat vague.

16.	Was the decision by the appeal tribunal not to adjourn the oral hearing wrong?  In my view it was not.  The adjournment issue was raised by Mr McA... at the stage of the oral hearing before me.  Prior to that and during the course of the application for leave to appeal before the LQPM and before the Social Security Commissioner, the issue had not been raised at all.  At paragraph 6 of the statement of reasons, the appeal tribunal set out the background to the adjournment of the oral hearing which had taken place on 22 April 2011.  The Department had in attendance certain witnesses.  In paragraph 7, the appeal tribunal noted:

‘The appellant said he felt intimidated by the witnesses from the Department.  In an attempt to ease the appellant’s discomfort and to proceed efficiently the tribunal inquired from the Department’s representative what the witnesses would prove to see if any material could be agreed.  The appellant indicated he was not disputing he was the person in the video nor was he disputing the content of his interview.  On the basis that there was agreement about what the Department’s witnesses would prove it was apparently agreed it was not necessary to hear from them.  After the witnesses had left Mr McA... indicated that he was not in agreement with the evidence being admitted.  Consequently, the appeal had to adjourn.’

17.	The first adjournment was, therefore, to facilitate Mr McA...’s concerns.  Paragraphs 8 and 9 of the statement of reasons are as follows:

‘8	In an attempt to avoid further unnecessary adjournments the Appeal Service wrote to the appellant’s representative seeking confirmation as to what evidence was in dispute.  A memo of a telephone conversation records records that the appellant’s representative indicated the evidence could be agreed and he was in a position to proceed so the appeal was relisted.  He supplied an unsigned letter dated 3 February 2012.

9	As the letter was unsigned the tribunal at the resumed hearing on 22 February 2012 requested Mr McA... to confirm in writing this was the position.  He was unwilling to do so and stated he did not have the Department’s submission.  The Tribunal clerk confirmed that copy of the submission had been sent to the appellant on 22 February 2010.  A copy of the submission was given to representative and time was allowed.  It is noted that the appellant’s representatives in the letter he returned to the tribunal confirmed receiving all of the evidence.  When the parties were called in Mr McA... was not willing to confirm agreement of the evidence from the observers and said he had not seen the items in question.  He also indicated he had not read the submissions and requested an adjournment.  The appellant however was anxious that the matter proceed and Mr McA... then indicated he too was willing to proceed.  The appellant said he had never disputed he was the person shown in the video.’

18.	Once again I cannot dispute the fairness or accuracy of these statements.  Copies of the record of the telephone conversation between the clerk to the appeal tribunal and Mr McA... on 3 February 2012, the correspondence dated from Mr McA... dated 3 February 2012 and the further unsigned statement from Mr McA... are all in the file of papers which is before me.  The content of those documents could not be clearer.  They lead the reader to believe that by 3 February Mr McA... was confirming that he had received all of the available evidence and that the appeal was ready to proceed.  At the oral hearing before me Mr McA... submitted that the correspondence dated 3 February 2012 had been prepared by someone within his office and had been sent out in error.  With respect to Mr McA... I cannot accept this submission.  The responsibility for correspondence which goes out from his office in his name lies with him.

19.	One of the principal factors which the appeal tribunal took into account when deciding not to accede to the request to adjourn the oral hearing was the insistence by the appellant himself that the appeal proceed.  In my view, that was a compelling reason for the appeal tribunal to proceed.  Although there may be circumstances in which it is in the best interests of an appellant to adjourn an appeal against his or her wishes, in the present case, the appeal tribunal would have been leaving itself open to criticism had it gone against the stated desire of the appellant to proceed with the appeal.

20.	In my view the appeal tribunal has done everything within its power to facilitate Mr McA..., to avoid the requirement to adjourn unnecessarily and to allow the appellant to have his appeal heard and determined.  There is nothing irrational or illogical in the appeal tribunal’s decision to proceed in those circumstances.  I cannot agree, therefore, that its decision is in error of law.

21.	During the course of the oral hearing before me, the appellant made a statement concerning his medical conditions and the effects of those medical conditions on his ability to function and to mobilise.  These are important matters for the appellant and it is arguable that he was submitting that, as a consequence, he should have had an entitlement to DLA during the relevant period.  With respect to the appellant, however, this amounts to a further submission on factual issues rather than questions of law.  It is clear that an appeal on a question of law should not be permitted to become a re-hearing or further assessment of the evidence, when that assessment has already been fully and thoroughly undertaken.

22.	In this respect, it is clear that the appeal tribunal undertook a rigorous and rational assessment of all of the evidence before it.  The appeal tribunal gave a sufficient explanation of its assessment of the evidence, explaining why it took the particular view of the evidence which it did.  Any conflict in the evidence before the appeal tribunal has been clearly resolved and explained.  The appeal tribunal made sufficient findings of fact, relevant to its decision, all of which are wholly sustainable on the evidence, and all of which are supported by relevant evidence.  None of the appeal tribunal’s findings are irrational, perverse or immaterial.  Read as a whole, the statement of reasons for the appeal tribunal’s decision provides a detailed explanation of the basis on which the appeal tribunal arrived at its conclusions on the issues before it.

	Disposal

23.	The decision of the appeal tribunal dated 22 February 2012 is not in error of law.  Accordingly, the appeal to the Social Security Commissioner does not succeed.  The decision of the appeal tribunal that the Department, on 24 November 2009 had grounds to supersede an earlier decision dated 30 April 2008 and that the appellant was not entitled to DLA from and including 4 February 2009 is confirmed.

(signed):  K Mullan

Chief Commissioner

7 July 2015