BD-v-Department for Social Development (DLA) [2015] NICom 3

Decision No: C31/14-15(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 2 December 2013

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application for leave to appeal from the decision of an appeal tribunal sitting at Dungannon.

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

REASONS

	Background

3.	The applicant in this case is the person appointed under regulation 30 of the Social Security (Claims and Payments) Regulations (NI) 1999 to continue with the appeal for the claimant, who died on 12 September 2013 (the appointee).

4.	The late claimant had claimed disability living allowance (DLA) from the Department for Social Development (the Department) from 14 November 2012 on the basis of needs arising from alcohol addiction, depression and osteoarthritis.  On 13 December 2012 the Department decided on the basis of all the evidence that the claimant did not satisfy the conditions of entitlement to DLA and he appealed.  Before the appeal could be determined, the claimant died.

5.	On 2 December 2013, 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 appointee then requested a statement of reasons for the tribunal’s decision and this was issued on 18 February 2014.  The appointee 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 3 April 2014.  On 2 May 2014 the appointee applied to a Social Security Commissioner for leave to appeal.

	Grounds

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

(i)	the reasons for its decision were inadequate to explain its view of a statement submitted by the late claimant’s daughter;

(ii)	the tribunal erred by assessing whether the claimant received help every day, rather than whether he required help.

7.	The Department was invited to make observations on the applicant’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 submitted that the tribunal had erred in law on a different basis and indicated that the Department supported the application.

	The tribunal decision

8.	As stated above, the claimant had died prior to the date of hearing.  The tribunal proceeded to determine the appeal on the basis of the documentary evidence in the absence of any witnesses.  The applicant was represented at the tribunal hearing by Mr McGlade of Dungannon Citizens Advice Bureau (CAB).  He made submissions based on the documentary evidence.  No medical records were available to the tribunal.

9.	The tribunal considered evidence in the form of two examining medical practitioner (EMP) reports prepared some ten months apart, in April 2012 and February 2013 respectively.  The tribunal further considered the evidence of the applicant’s general practitioner (GP) and a written statement by the applicant’s daughter in the claim form.  However, the tribunal preferred to rely on the EMP reports – noting in particular the similarity of their clinical findings.  On the basis of the evidence in the EMP reports, it dismissed the appeal.

	Hearing

10.	I held an oral hearing of the appeal.  The appointee was not present but was represented by Mr McGlade of Dungannon CAB.  The Department was represented by Mr Kirk of DMS.

11.	Mr McGlade submitted that the tribunal had erred in two respects.  First, it had not given adequate reasons for rejecting the evidence of the claimant’s daughter, which appeared in a written statement in the claim form.  Second, he submitted that the tribunal had applied the wrong legal test, something which was evident from a comment made by the medical member of the tribunal recorded in the record of proceedings.  The medical member had stated:

“On my interpretation the two EMP reports are actually remarkably similar.  I would say that the evidence from not one but two medical professionals well within one year of each other must weigh heavily with the tribunal.  Further, even by his daughter’s own admission [the claimant] did not seem to have help every day”.

12.	Mr Kirk disputed that the reasons for the decision were inadequate.  He further submitted that the tribunal had not erred as alleged in the second ground.  In particular, the tribunal had addressed the evidence in terms of what care the claimant required, rather than received.

13.	For the Department, Mr Kirk nevertheless submitted that the decision of the tribunal was erroneous in point of law.  He referred to R(DLA)6/06 - a case heard by a Tribunal of Great Britain Commissioners which was addressed to the issue of needs arising from alcohol addiction.  He submitted that there was ample evidence before the tribunal, particularly in the form of a letter from the claimant’s GP, but also in the second EMP report, to require the tribunal to investigate the needs of the claimant arising from alcohol addiction.  The evidence of the GP was that the claimant had been drinking extremely heavily in 2010 and that he continued to abuse alcohol, despite treatment by psychiatric services, referral to the addiction team and prescription of disulfiram, citalopram and chlordiazepoxide.  The report of the second EMP was suggestive of difficulties in terms of preparing a cooked main meal, incontinence, falls and a need for encouragement to self-care.

14.	Mr Kirk submitted that the tribunal had not investigated the claimant’s needs arising from alcohol abuse, and that his case appeared to fall within the guidelines of R(DLA)6/06.  He submitted that the tribunal had not adequately investigated or made adequate findings on the claimant’s needs arising from alcohol abuse.  It had not made any findings on the pattern of alcohol abuse in order to assess whether it suggested care needs when the decision of the House of Lords in Moyna v Secretary of State for Work and Pensions [2003] UKHL 44 was applied. Mr McGlade gave support to Mr Kirk’s submissions and he referred me to C4/06-07(DLA) where Mrs Commissioner Brown had expressly followed the unreported version of R(DLA)6/06, making it binding on tribunals in Northern Ireland. 

	Assessment

15.	It does not appear to me that there is any ambiguity in the tribunal’s reasons.  The tribunal makes clear that it has considered evidence before it, including the evidence of the claimant’s daughter.  In reaching its decision, the tribunal had relied on evidence of the applicant’s medical condition, and the functional needs arising from it, in the form of two EMP reports.  The reports, given within 10 months of each other, are consistent and do not suggest that the claimant required the level of care or had mobility problems which would attract an award of DLA.  The tribunal statement of reasons clearly indicates that it preferred this evidence and relied upon it.  It further indicates that what most persuaded it to accept the EMP evidence was the similarity of the two reports, which were prepared independently but within a year of each other.

16.	It further appears to me that the comment attributed to the medical member was primarily addressed to giving the claimant’s representative an opportunity to address points which might have counted against him.  The medical member was first putting to the representative that the two separate EMP reports were remarkably similar and, therefore, that they carried considerable weight as evidence.  Second, he was putting the point that the claimant did not appear to have help every day.  It was legitimate, indeed necessary in the interests of fairness, to put obvious issues to the representative for comment.

17.	Mr McGlade submits that the comment of the medical member indicated that he was addressing the wrong test.  I accept that the test for DLA care component involves the question of whether a claimant requires attention and not whether he receives it.  However, ascertaining whether and how often attention is actually received by a claimant can be helpful to a tribunal in assessing whether it is required.  Caring for another person, even a loved one, can be a physically and emotionally draining experience which many people would not go through if they did not have to.  Therefore, credible evidence that a consistent pattern of care is actually undertaken by family members can tend to support a conclusion that care is reasonably required.

18.	I do not accept Mr McGlade’s submission that the point put by the medical member at the hearing demonstrates that the tribunal applied an incorrect test.  No reference to the issue of whether care was actually given on a daily basis was made in the statement of reasons.  In the statement of reasons, the tribunal addressed itself to the evidence before it and relied in particular in reaching its conclusion on the evidence of the two EMP reports.  These reports were clearly addressed to the issue of whether care was required – not received.  While Mr McGlade relies upon the decision of Deputy Upper Tribunal Judge Paines in MW v Secretary of State for Work and Pensions [2010] UKUT 85 (AAC), that case involved the issue of evidence allegedly addressed to the wrong question.  That is not the case here and I reject the second submission of Mr McGlade.

19.	However, Mr Kirk submitted that an aspect of the claim had not been addressed adequately, namely the issue of the claimant’s alcoholism.  He submitted that the tribunal’s failure to address this issue had rendered its decision erroneous in law.  Mr McGlade endorsed this submission. I consider that this is an arguable ground and I grant leave to appeal on this issue.

20.	It does appear to me that there is force in Mr Kirk’s criticism of the tribunal.  I consider that it is questionable whether the pattern of binge drinking suggested by the medical evidence would support entitlement, applying Moyna.  However, the lack of findings on this issue makes it difficult to conclude that it was not a material error.  As the tribunal has not fully investigated this part of the claimant’s case and has not made findings, I consider that I must hold that it has erred in law and must set aside its decision.
Disposal

21.	The parties agree that the tribunal has erred in law.  The claimant is deceased and at first sight there would seem little point in referring the matter back to a new tribunal for hearing.  However, Mr McGlade submits that rather than determining the appeal myself, I should remit the appeal to a new tribunal.

22.	He submits, in particular, that a new tribunal could obtain medical records from the Business Services Organisation (BSO) which were not before the original tribunal, requesting an opportunity to inspect these in advance of the date of hearing.  He further observes that while the original hearing took place within three months of the claimant’s death, when no family member was motivated to attend the tribunal, it might now be possible for a family member to attend.

23.	I accept Mr McGlade’s submission and I direct that the appeal shall be reheard by a newly constituted tribunal.

24.	For the benefit of the new tribunal, I direct that the Appeals Service shall obtain necessary consents from the appointee in order to request the applicant’s medical records from the BSO.

25.	I further direct that the Appeals Service shall give Mr McGlade an opportunity to inspect such medical records as are obtained at least one week prior to the date of hearing, bearing in mind that there is no urgency around returning the records of a deceased claimant, unlike the normal position with medical records.

26.	It further occurs to me that it might be useful for the previous papers upon which the claimant had been awarded the middle rate care component from April 2010 to April 2012 to be considered by the tribunal.  I direct that the previous papers relating to the claimant’s DLA award of April 2010-2012 shall be before the tribunal and open to inspection by Mr McGlade.

(signed):  O Stockman

Commissioner

22January 2015