MO’N-v-Department for Social Development (DLA) ]2015] NICom 51
Decision No:  C17/14-15(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 31 May 2012

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 31 May 2012 is in error of law.  The error of law 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.	I am able to exercise the power conferred on me by Article 15(8)(a)(i) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given as I can do so without making fresh or further findings of fact.  I am satisfied that the appeal tribunal’s assessment of the evidence which was available to it and its detailed findings of fact are such that I am in a position to adopt that assessment and those findings.

3.	My revised decision is that grounds existed on 24 January 2012 to supersede the decision of the appeal tribunal dated 2 June 2009 and to remove entitlement to both components of disability living allowance (DLA) from and including 1 September 2011.

	Background

4.	This appeal is linked to another appeal which is before the Social Security Commissioners with the reference ‘C18/14-15 (DLA)’.  On 2 June 2009 an appeal tribunal gave a decision which awarded the appellant an entitlement to the higher rate of the mobility component for the fixed period from 7 October 2008 to 6 October 2011.  The appeal tribunal also made an award of the lowest rate of the care component of DLA from and including 7 October 2008.

5.	A renewal claim form was received in the Department on 21 June 2011.  Following receipt of a factual report from the appellant’s general practitioner (GP) and a report of an examination conducted by an examining medical practitioner (EMP) a decision-maker of the Department decided, on 1 September 2011, that the appellant did not have an entitlement to either component of DLA from and including 7 October 2011.

6.	On 14 September 2011 an appeal against the decision dated 1 September 2011 was received in the Department.

7.	On 24 January 2011 another decision-maker decided that the decision of 1 September 2011 was erroneous in law.  In written observations on the application for leave to appeal to the Social Security Commissioner, Mrs Hulbert from Decision Making Services (DMS) submitted that the decision-maker ‘… subsequently revised and removed the decision of 1 September 2011.’

8.	On 25 January 2012 another decision-maker made a decision which superseded the decision of the appeal tribunal dated 2 June 2009 and removed entitlement to higher rate of the mobility component and the lowest rate of the care component of DLA for the period from 1 September 2011 to 6 October 2011.  I shall refer to this decision as ‘D1’ in this and the linked appeal.

9.	On 25 January 2012 another decision was made which superseded the decision of the appeal tribunal dated 1 September 2011 and which disallowed entitlement to the higher rate of the mobility component and the lowest rate of the care component of DLA from and including 7 October 2011.  I shall refer to this decision as ‘D2’ in this and the linked appeal.

10.	The appeal received in the Department on 14 September 2011 appears to have been treated as an appeal against both decisions (‘D1’ and ‘D2’).

11.	The appeal tribunal hearing took place on 31 May 2012.  The appeal tribunal disallowed the appeal and issued two decisions to the following effect:

‘1. 	Pursuant to Regulation 6(2) of the Social Security and Child Support (Decisions and Appeals) Regulations (NI) 1999, grounds existed on 25.1.2012 to supersede the decision of 2.6.2009.

2.	The outcome is changed.  The Appellant does not satisfy the provision of Section 73 of the Social Security Contributions and Benefits (NI) Act 1992 from and including the effective date of supersession.

3.	The effective date of supersession is 7.10.2011.

Appeal Disallowed’

‘1.	Pursuant to Regulation 6(2) of the Social Security and Child Support (Decisions and Appeals) Regulations (NI) 1999, grounds existed on 25.1.2012 to supersede the decision of 2.6.2009.

2.	The outcome is changed.  The Appellant does not satisfy the provision of Section 72 of the Social Security Contributions and Benefits (NI) Act 1992 from and including the effective date of supersession.

3.	The effective date of supersession is 7.10.2011.

Appeal Disallowed’

12.	It would appear that in and around the end of June 2013 the appellant wrote to The Appeals Service (TAS) seeking leave to appeal to the Social Security Commissioner.  In that application the appellant made reference to a second appeal which had been heard and determined by the appeal tribunal on 31 May 2012.  On 9 July 2013 an officer from the Office of the President of Appeal Tribunals wrote to the appellant seeking clarification as to whether she wished to seek leave to appeal against both decisions of the appeal tribunal made on 31 May 2012.  It was noted in that correspondence that any application for leave to appeal against the second decision of the appeal tribunal would now be late and that she would need to provide reasons for lateness in any subsequent application for leave to appeal.

13.	On 23 July 2013 correspondence was received from the appellant in which she confirmed that she did wish to seek leave to appeal against both decisions of the appeal tribunal.  She provided reasons for her delay in seeking leave to appeal against one of those decisions indicating that she had thought that she had only had one appeal on the relevant date and had not paid much attention to the appeal reference numbers.

14.	On 2 October 2013 the legally qualified panel member (LQPM) rejected the late application to him as he found no special reasons to accept it in accordance with the provisions of regulation 58(5) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999.

	Proceedings before the Social Security Commissioner

15.	On 4 November 2013 a further application for leave to appeal was received in the Office of the Social Security Commissioners.

16.	On 24 January 2014 observations on the application for leave to appeal were sought from DMS.  As was noted above, written observations were received from Mrs Hulbert on 20 February 2014.  In these observations Mrs Hulbert opposed the application for leave to appeal on the grounds submitted by the appellant but, nonetheless, identified certain errors in the decision which was made by the appeal tribunal.  Written observations were shared with the appellant on 2 April 2014.

17.	On 3 April 2014 Mrs Hulbert was requested to clarify the form of action which she was submitting the Commissioner should take.  On 9 April 2014 a further submission was received from Mrs Hulbert in which she submitted that the Commissioner should grant leave to appeal and correct the relevant errors.

18.	On 17 September 2014 I accepted the late application for special reasons.  On 29 September 2014 I granted leave to appeal.  In granting leave to appeal I gave, as a reason that an arguable issue arose as to the manner in which the appeal tribunal applied the legislative provisions relevant to the effective date of supersession.

19.	On 29 September 2014 I also directed an oral hearing of the appeal.  The oral hearing was listed for 31 October 2014.  The appellant was notified of the date, time and venue of the oral hearing on 14 October 2014 and was urged to consider seeking representation.  On 29 October 2014 e-mail correspondence was received from the appellant in which she indicated she would not be attending the oral hearing and would not be represented.  The hearing was postponed at my direction.

20.	The substantive oral hearing took place on 18 December 2014.  The appellant had been notified of the date, time and venue of the oral hearing on 21 November 2014.  The Department was represented by Mr Hinton from DMS.  Gratitude is extended to him for his detailed and constructive observations, comments and suggestions.  There then followed a delay in the promulgation of this decision which was for reasons which were largely unavoidable.  Nonetheless, apologies are extended to the parties to the proceedings for that delay.

	Errors of law

21.	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?

22.	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

23.	I begin with the submissions which were made by Mrs Hulbert and expanded upon at the oral hearing by Mr Hinton.  In the original written observations on the application for leave to appeal, Mrs Hulbert made the following submissions:

‘Although the decision maker gave two decisions on 25 January 2012, one for the closed period of 1 September 2011 to 6 October 2011 and the other from and including 7 October 2011, it is my submission that only one decision should have been made and this would have been to remove the award of both components from and including 1 September 2011.  Whilst I have noted in the linked case, LA26/13/14(DLA), that the tribunal decision in that appeal appears to have covered the period from and including 1 September 2011, the tribunal have in this case gave a further decision relating to supersession decision of 25 January 2011 which related to the period from and including 7 October 2011 and in doing so has erred in law.

…

(The claimant) completed a renewal claim form for DLA as her award of the mobility component was due to expire on 7 October 2011; the care component however was awarded for an indefinite period.  As there was an existing award the renewal claim form was correctly treated as an application for supersession.  Whilst the rules relating to renewal claims for DLA allow for the claim to be treated as being made on the day after the award expires (Regulation 13C of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987, there is no such provision that allows an application for supersession to be treated as being made other than the date it is received.

In this case the decision maker and subsequently the tribunal have used the same application to carry out separate supersessions, the effect of which was to remove the previous award of DLA however from different effective dates.

The rules governing the effective dates for supersession are contained within article 11(5) of the Social Security (Northern Ireland) Order 1998 and regulation 7 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999.  Article 11(5) of the 1998 Order is appropriate in this case and this provides that the effective date for supersession shall be the date on which the application is made or where applicable where the decision is made.

In this case, the correct decision would have been for the tribunal to disallow both components of DLA from and including 1 September 2011, the date on which the original decision was made (albeit that it was revised and replaced by the decision of 25 January).  There was no legislative provision that would have allowed the decision maker or tribunal to make a further supersession decision effective from 7 October 2011.  In view of this I would submit that the tribunal has erred in law.’

24.	At the oral hearing of the appeal, Mr Hinton confirmed that it was now the Department’s submission that the appeal tribunal’s decision notices, which identified the effective date of supersession as 7 October 2011, were clearly incorrect.  Mr Hinton noted that in two paragraphs with the statement of reasons for the appeal tribunal’s decision, the appeal tribunal had identified the correct effective date of supersession.  He submitted that otherwise there was no error in the decisions of the appeal tribunal and that the appellant, in her application for leave to appeal, had not identified any error of law.  He submitted that I should exercise the power conferred on me by Article 15(8)(a)(i) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given.

25.	I agree with the submissions which have been made by Mrs Hulbert and Mr Hinton and, for the reasons which have been set out by them, agree that the effective date of supersession set out by the appeal tribunal in its decision notices is erroneous.  I also agree that the statement of reasons for the appeal tribunal’s decision reveals no other error in law.  The rigour of the appeal tribunal’s assessment of the evidence which was available to it and its detailed findings of fact are such that I am in a position to adopt that assessment and those findings in exercising the power conferred on me by Article 15(8)(a)(i) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given.

26.	I turn to the appellant’s grounds for appealing, as set out in her application for leave to appeal.  The first ground was as follows:

‘It was not an appeal, it was an unfair, and biased witch hunt which used bullying tactics to intimidate me.

They had no interest in my appeal or my disabilities.  They wanted information on my personal life, my family and my lack of a working life.  In my opinion, they were there for their own personal amusement and had no interest whatsoever in the appeal they were supposed to be presiding over.’

27.	In the file of papers which is before me, there is a copy of the record of proceedings for the appeal tribunal hearing and the statement of reasons for the appeal tribunal hearing.  The record of proceedings is separated into a section relating to the care component of DLA which extends to one page and a section relating to the mobility component which extends to a page and a half.  The statement of reasons extends to thirteen pages.

28.	It may be the case that the appellant is challenging the basis on which the appeal tribunal has intervened to ask her questions and make interventions and is asserting that such an approach made her feel uneasy and uncomfortable.  As was noted by Mrs Hulbert, in her written observations on the application for leave to appeal, the appeal tribunal does have an inquisitorial role.  Mrs Hulbert notes the comments of Mrs Commissioner Brown at paragraph 12 of her decision in C01/01-02, where she stated:

‘…A Tribunal does have an inquisitorial role and as such the members of the Tribunal will usually play a more active part in the hearing than would a judge in a Court.  This will often involve detailed questioning (which is often necessary to ascertain whether or not a person fulfils the very detailed conditions for Disability Living Allowance) and the raising of possible inconsistencies and other issues…’

29.	Having considered the detail of the record of proceedings for the appeal tribunal hearing, I am satisfied that the proceedings of the appeal tribunal were conducted in accordance with the principles of natural justice, and its decision is reflective of an apposite consideration of, and adherence to such principles.

30.	The statement of reasons for the appeal tribunal’s decision is comprehensive.  Although I have agreed with the Department that the appeal tribunal was in error in adopting a flawed decision-making process in the Department, I am satisfied 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.  All issues raised by the appeal, either expressly or apparent from the evidence were fully examined by the appeal tribunal in conformity with its inquisitorial role.  Accordingly I cannot accept the appellant’s first ground for seeking leave to appeal.

31.	The appellant’s second submitted ground was as follows:

‘Why was the legal member who decided that I hadn’t the right to appeal, the same person that I was appealing against.  [The LQPM] was in my tribunal.  He was part of the trio who conducted the witch hunt.  That can’t be right. Can it?’

32.	Article 15(1) of the Social Security (Northern Ireland) Order 1998, as amended, provides:

‘15.—(1) Subject to the provisions of this Article, an appeal lies to a Commissioner from any decision of an appeal tribunal under Article 13 or 14 on the ground that the decision of the tribunal was erroneous in point of law.’

33.	Article 15(1) provides:

‘(10) No appeal lies under this Article without the leave—

(a) of the person who constituted, or was chairman of, the tribunal when the decision was given or, in a prescribed case, the leave of such other person as may be prescribed; or

(b) subject to and in accordance with regulations, of a Commissioner.

34.	Regulation 58(6) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 allows for an application for leave to appeal to be determined by a salaried, or full-time, LQPM where the chairman of the appeal tribunal which made the decision against which leave to appeal is sought was a fee-paid LQPM.  In addition Regulation 58(6) also permits another LQPM to determine an application for leave to appeal where it is impracticable, or would be likely to cause undue delay, for the application to be determined by the original appeal tribunal chairman.  Accordingly the procedural rule is that an application for leave to appeal should be determined by the chairman of the appeal tribunal which made the decision which is being challenged or, in exceptional circumstances, another LQPM.

35.	In her written observations on the application for leave to appeal, Mrs Hulbert, after considering the relevant legislative provisions, submitted:

‘As can be seen when determining an application for leave to appeal to the Commissioner, it is generally the LQM of the tribunal who makes the decision that is subject to the application who decides whether or not to grant leave to appeal.

In deciding whether or not to grant leave to appeal, the chairman would decide an application purely on the grounds and merits of each application and there is nothing to suggest that this was not the case in (the claimant’s) application.  Furthermore when leave to appeal is refused appellants are not disadvantaged in that they have a further opportunity by applying directly to the Commissioner for leave to appeal, which has happened in this case.  I therefore find no merit in this ground of appeal.’

36.	I cannot find any error, therefore, in the determination of the application for leave to appeal by the LQPM who was chairman of the appeal tribunal which made the decision which was challenged by the appellant.  As was noted above, the application for leave to appeal was refused by the LQPM.  The appellant was permitted to renew the application for leave to appeal to the Social Security Commissioner.  It was the case, in fact, that I granted leave to appeal albeit that the appeal has been unsuccessful.

37.	In her application for leave to appeal, the appellant has also made reference to having two appeals, noting:

‘One was held in January 2012 without me being informed about it until the decision appeared through my letterbox.  I appealed it and had my appeal heard in May 2012.’

38.	The reference to January 2012 should be, more correctly, a reference to the decision-making which took place in the Department at that date rather than an appeal against any such decision.  The appeal tribunal in May 2012 was hearing and determining two appeals in connection with the Department’s decision-making process.  It is clear that the appellant has been in a position to exercise all of her rights of appeal and has not been disadvantaged in not being accorded the relevant appeal rights.

	Disposal

39.	The decision of the appeal tribunal dated 31 May 2012 is in error of law.  The error of law 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.

40.	I am able to exercise the power conferred on me by Article 15(8)(a)(i) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given as I can do so without making fresh or further findings of fact.  I am satisfied that the appeal tribunal’s assessment of the evidence which was available to it and its detailed findings of fact are such that I am in a position to adopt that assessment and those findings.

41.	My revised decision is that grounds existed on 25 January 2012 to supersede the decision of the appeal tribunal dated 2 June 2009 and to remove entitlement to both components of disability living allowance (DLA) from and including 1 September 2011.

(signed)  K Mullan

Chief Commissioner

28 August 2015