DR-v-Department for Social Development (DLA) [2015] NICom 6

Decision No:  C21/14-15(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 9 September 2013

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 9 September 2013 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.

3.	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.

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

5.	On 18 August 2012 a decision-maker of the Department decided that the appellant had an entitlement to the middle rate of the care component and no entitlement to the mobility component of DLA from and including 30 September 2012.  The decision was made on the basis of a renewal claim to that benefit.  A copy of the decision was attached to the original appeal submission as Tab No 4.  On 27 September 2012 an appeal against the decision dated 17 August 2012 was received in the Department.

6.	In the file of papers which is before me is a copy of a further appeal submission prepared by the Appeals Writer on 20 June 2013.  In this submission the Appeals Writer submits that on 17 June 2013 another decision-maker of the Department reconsidered but did not change a decision dated 3 September 2012.  The emphasis here is my own.  I cannot, within the papers which are before me, find a decision of the Department dated 3 September 2012.  I note that the appellant’s letter of appeal against the decision dated 18 August 2012 is, itself, dated 3 September 2012.  Nothing turns on that, however.  It is clear, from the dates of the earlier claims to DLA, that the operative dates of the decision of 18 August 2012 were correct.

7.	The appeal tribunal hearing took place on 9 September 2013.  The appellant was present and was represented.  The Department was represented by a Presenting Officer.  The appeal tribunal disallowed the appeal.  The Decision Notices issued by the appeal tribunal confirm the substance of the decision made on 18 August 2012.

8.	On 5 March 2014 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS) from Ms Loughrey of the Law Centre (Northern Ireland) who was now representing the appellant.  On 21 March 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

9.	On 10 April 2014 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 1 May 2014 observations on the application for leave to appeal were sought from Decision Making Services (DMS).  In written observations received on 15 May 2014, Mrs Hulbert, for DMS, supported the application for leave to appeal.  Written observations were shared with the appellant and Ms Loughrey on 15 May 2014.

10.	On 19 November 2014 I granted leave to appeal.  In granting leave to appeal, I gave, as a reason, that an arguable issue arose as to whether the statement of reasons for the appeal tribunal’s decision was adequate to explain its decision.  On the same date I also directed that having considered the papers available to me that an oral hearing of the application would not be required.

	Errors of law

11.	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?

12.	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

13.	The argument being presented by Ms Loughrey is very straightforward.  The appeal tribunal confirmed the decision of the Department dated 18 August 2012.  While that decision had made an award of entitlement to the middle rate of the care component of DLA it had also denied entitlement to the highest rate of the care component and any rate of the mobility component.  There was evidence which was before the appeal tribunal which supported entitlement to the highest rate of the care component and the mobility component of DLA.  The appeal tribunal had not undertaken any evaluation of this evidence and had not provided any or adequate reasons as to why there was no entitlement beyond the middle rate of the care component.  Mrs Hulbert supports these arguments.

14.	I agree with both representatives that the decision of the appeal tribunal is in error of law.  The role of an appeal tribunal is to determine the issues in dispute by an accurate application of the relevant law the facts as found on the evidence through a procedure that satisfies general standards of fairness.  An appeal tribunal must also provide a statement of reasons for its decision which, when read as a whole, provides a detailed explanation of the basis on which the appeal tribunal arrived at its conclusions on the issues before it.

15.	In the instant case it is clear that the appeal tribunal has gone about the evidence-gathering process with forensic care and precision.  The record of proceedings for the appeal tribunal hearing runs to four and a half A4 pages.  From the content of that record, I accept 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.  The statement of reasons for the appeal tribunal’s decision runs, itself, to 6 A4 pages.  The appeal tribunal has set out the decision-making background to the appeal and has provided a detailed summary of the evidence which was before it, particularly the medical evidence.  What is missing is what is crucial to any statement of reasons – a rigorous assessment of the evidence which was before it, findings of fact based on that assessment, an application of those findings to the relevant law and reasons for the rejection of the appellant’s claim to the highest rate of the care component and higher rate of the mobility component of DLA.  Accordingly, the decision of the appeal tribunal is in error of law.

16.	At first consideration, it seemed that the statement of reasons for the appeal tribunal’s decision was incomplete and that there must have been a further section to the statement which had gone missing.  Mrs Hulbert, in her written observations, indicated that she had contacted a clerk in the Appeals Service with a query to that effect but that it had been confirmed that the documentation which is presently before me was all that there was on file.  I note that Ms Loughrey had made a similar enquiry immediately prior to making the initial application for leave to appeal to the LQPM.  The LQPM, when asked to consider the application for leave to appeal, would have been provided with Ms Loughrey’s grounds for seeking leave to appeal, and a copy of the statement of reasons which he had provided.  It seems that in refusing leave to appeal, he was, by implication, rejecting any submission that the reasons were inadequate.

	Disposal

17.	The decision of the appeal tribunal dated 9 September 2013 is in error of law.  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.

18.	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 18 August 2012, in which a decision-maker of the Department decided that the appellant had an entitlement to the middle rate of the care component and no entitlement to the mobility component of DLA from and including 30 September 2012;

	(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

30 January 2015