WM-v-Department for Communities (DLA) [2016] NICom 71

Decision No:  C15/16-17(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 27 August 2015

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 27 August 2015 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 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

5.	On 15 October 2014 a decision-maker of the Department decided that the appellant was not entitled to DLA from and including 29 August 2014. Following a request to that effect the decision dated 15 October 2014 was reconsidered on 1 December 2014 but was not changed.  An appeal against the decision dated 15 October 2014 was received in the Department on 16 March 2015.

6.	Following an earlier postponement the appeal tribunal hearing took place on 27 August 2015. The appellant was present and was accompanied by her daughter.  There was no Departmental Presenting Officer present. The appeal tribunal allowed the appeal making an award of entitlement to the lowest rate of the care component and the lower rate of the mobility component of DLA from 29 August 2014 to 28 August 2017.

7.	On 29 September 2015 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS).  On 18 November 2015 the Legally Qualified Panel Member (LQPM) accepted that the application for leave to appeal was late, did not accept that special reasons existed and rejected the application. 

8.	On 21 January 2016 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  Following a further exchange of correspondence, on 20 May 2016 the office was informed by a clerk in TAS that the LQPM had agreed to release a copy of the record of proceedings for the appeal tribunal hearing and a statement of reasons for the appeal tribunal decision.

9.	On 13 June 2016 observations on the application for leave to appeal were requested from Decision Making Services (DMS). In written observations received on 1 July 2016 Ms Adams, for DMS, supported the application on one of the grounds submitted by the appellant.  Written observations were shared with the appellant on 1 July 2016.

10.	On 1 September 2016 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 had assessed certain of the evidence which was before it.

	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.	In her written observations on the application for leave to appeal, Ms Adams has made the following submissions:

'(The appellant) reiterates her care needs which she states have increased 

(The appellant) details her medical conditions throughout the appeal letter.  She suffers from back pain, fibromyalgia, hypertension, pernicious anaemia, narcolepsy and depressive illness and the care needs arising from these.  (The appellant) states that she needs her family to stay with her as she falls asleep without warning and she needs help to remember to take her medication.  In her self assessment form she states she needs encouragement to get dressed and undressed and she needs supervision to carry out daily activities, even take a bath in case due to the narcolepsy.  The letter from Dr M, consultant psychiatrist, dated  17 November 2014 notes that given the complexities of the various ailments (the appellant) suffers from she requires support throughout the day and night, further stating that the narcolepsy means she needs constant supervision to avoid potential harm.   

(The appellant) states she cannot make a main meal for herself, she notes the health and safety risk from drifting into a sudden sleep while at the cooker. 

In their reasoning, the tribunal state they gave careful consideration to the GP report and records which indicate the appellant can manage her own care needs.  During the oral hearing (the appellant) advised the panel that she could dress and undress, manage her own medication and go to the bathroom and reiterated her struggle with incontinence and depression.  Furthermore, the appellant declared during the hearing and contrary to the information she gave in her self assessment form, that she did not need another person to provide frequent or prolonged attention at night nor did she require someone to be awake to watch over her.  On balance of all evidence in the round, including the appellants oral testimony, the tribunal found that (the appellant) did not meet the requirements for an award of middle or higher rate care.   

The tribunal rejected the notion, as it was entitled to do, that she required any night supervision and was perfectly safe to be left alone at night.  The tribunal noted they

“specifically reject her evidence in relation to night time needs or supervision that she is perfectly safe at night and does not need assistance from any other person”.
 
It should be noted, however, on page nineteen of (the appellant’s) self assessment form she states she needs help with her incontinence needs two to four times a day for ten to fifteen minutes each time.  In the record of proceedings, the tribunal noted the GP records held a note claiming she could have 7 incontinence episodes a day.  It notes also that (the appellant) suffers from a bad incontinence problem.  Furthermore, later in the proceedings, the tribunal recorded that the appellant may have five episodes or she may have fifteen episodes but overall she had very few good days.  I would contend therefore, given the contradictory evidence, the tribunal should have explored this issue further with (the appellant) in order to establish the frequency of her incontinence needs and what help was required throughout the day in order to establish whether or not (the appellant) could have been entitled to the middle rate care component.   

I would submit that the tribunal has not adequately considered the evidence surrounding (the appellant’s) daytime needs and therefore an error in law has occurred here.’

14.	I have noted that in the statement of reasons for its decision the appeal tribunal has set out the following conclusions on potential entitlement to the care component of DLA through satisfaction of the relevant ‘daytime’ conditions of entitlement:

‘The Tribunal do however find that she does reasonably require attention in connection with her bodily functions from another person for a significant portion of the day. This is due to a combination of her various problems including depression and incontinence. We cannot accept that it amounts to frequent attention or can they accept that she needs continual supervision either throughout the day or at night.’

15.	It is clear, therefore, that, although not stated in these terms, the appeal tribunal has concluded that the appellant satisfied the condition set out in section 72(1)(a)(i) of the Social Contributions and Benefits (Northern Ireland) Act 1992 (‘the 1992 Act’), as amended.  That meant that she earned an entitlement to the lowest rate of the care component. Equally, it has to be the case that the appeal tribunal was satisfied that the appellant did not satisfy the condition set out in section 72(1)(b)(i) of the 1992 Act. That meant that she could not earn an entitlement to the middle rate of the care component. 

16.	For the sake of completeness, it has to be noted that the appeal tribunal concluded that the appellant also satisfied the alternate condition for entitlement to the lowest rate of the care component set out in section 72(1)(a)(ii) of the 1992 Act.

17.	In summary, the appeal tribunal concluded that the attention in connection with her bodily functions which the appellant reasonably required amounted to attention for a significant portion of the day but did not amount to frequent attention throughout the day.  On the face of it, there is not much wrong with that reasoning except that the appellant had presented evidence to the appeal tribunal of a requirement for attention in connection with her bodily functions which, if accepted, might have amounted to frequent attention for the purposes of section 72(1)(b)(i) of the 1992 Act.  The deficiency in the appeal tribunal’s reasoning is that it has not told the appellant why it did not accept the evidence of a reasonable requirement for attention in connection with her bodily functions, arising particularly from her problems with incontinence, going beyond that required for a significant portion of the day.

18.	The issue is a marginal one but I am satisfied that the appeal tribunal could have done more in setting out its assessment of the appellant’s requirement, by day, for attention in connection with her bodily functions and in explaining why the attention which it accepted as being reasonable did not amount to frequent attention. With a degree of reluctance, therefore, I am setting aside the decision of the appeal tribunal as being in error of law.

	Disposal

19.	The decision of the appeal tribunal dated 27 August 2015 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. 

20.	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, dated15 October 2014 in which a decision-maker of the Department decided that the appellant was not entitled to DLA from and including 29 August 2014;

		(ii) the Department is directed to provide details of any subsequent claims to DLA and the outcome of any such claims to the appeal tribunal to which the appeal is being referred.  The appeal tribunal is directed to take any evidence of subsequent claims to DLA into account in line with the principles set out in C20/04-05(DLA);

		(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

31 October 2016