JCK-v-Department for Social Development (DLA) [2016] NICom 13

Decision No:  C8/15-16(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 5 November 2013

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 5 November 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 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 22 May 2013 a decision-maker of the Department decided that the appellant did not have an entitlement to either rate of DLA from and including 25 April 2013.  Following receipt of a letter disputing the decision dated 22 May 2013, that decision was reconsidered on 12 June 2013 but was not changed.  An appeal against the decision dated 22 May 2013 was received on 28 June 2013.

6.	The appeal tribunal hearing took place on 5 November 2013.  The appellant was present and was represented.  There was a Departmental Presenting Officer present.  The appeal tribunal disallowed the appeal and issued two Decision Notices to the following effect:

‘Appeal disallowed

The Appellant does not satisfy the requirements for entitlement to the award of either of the rates of the Mobility Component of DLA from and including 25/4/13.’

and

‘Appeal disallowed

The appellant is entitled to the award of the low rate care for a period of two years from and including 24/4/13.’

7.	On 12 February 2014 an application for leave to appeal to the Social Security Commissioner was received in The Appeals Service (TAS).  On 14 February 2014 the application for leave to appeal was refused by the Legally Qualified Panel Member (LQPM).

Proceedings before the Social Security Commissioner

8.	On 22 March 2014 a further application for leave to appeal was received in the Office of the Social Security Commissioners.

9.	On 20 May 2014 observations on the application for leave to appeal were sought from Decision Making Services (DMS).  In written observations received on 4 June 2014, Mrs Hulbert, for DMS, opposed the application for leave to appeal on the grounds submitted by the appellant but supported the application on the basis of two other identified grounds.  Written observations were shared with the appellant on 4 June 2014.

10.	On 17 September 2015 I granted leave to appeal.  In granting leave to appeal I gave as a reason that it was arguable that the appeal tribunal had misapplied the legislative test set out in section 73(1)(d) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended.

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 helpful written observations on the application for leave to appeal, Mrs Hulbert made the following submission:

‘In her self-assessment form (the claimant) advised that she needed someone with her when walking outdoors in unfamiliar places as she suffered with anxiety/panic attacks.  The tribunal was of the view that there was no entitled to any rate of the mobility component and with regards to the lower rate concluded:

“Based on the medical evidence the Tribunal concludes on a balance of probabilities the Appellant does not have a reasonable need for physical support whilst outdoors or for guidance and supervision from another person in unfamiliar places – most of the time.”

Whilst the self-assessment form refers to unfamiliar places the correct test with regards to the lower rate of the mobility component refers to familiar routes.

Section 73 (1) (d) of the Social Security Contributions and Benefits (NI) Act 1992 states:

“73 (1) Subject to the provisions of this Act, a person shall be entitled to the mobility component of a disability living allowance for any period in which he is over the relevant age and throughout which-

…(d) He is able to walk but is so severely disabled physically or mentally that, disregarding any ability he many have to use routes which are familiar to him on his own, he cannot take advantage of the faculty of out of doors without guidance or supervision from another person most of the time.”

At paragraph 7 of reported decision R1/03(DLA) Commissioner Brown stated:

“The tribunal’s reasoning reveals what may be another error.  The matter is not whether or not the relevant child needs supervision when walking in unfamiliar places.  It is whether he needs the supervision when walking other than on routes which are familiar to him.  Unfamiliar routes and unfamiliar places are not the same.  Route is defined in Collins English dictionary as:-

The choice of roads taken to get to a place

A regular journey travelled

To plan the route of, send by a particular route

It appears to me that the legislative context indicated that it is the pathway taken which is relevant here.  In other word if the person can get around perfectly alright on familiar pathways, as is the case with many blind or mentally handicapped people, this ability is to be disregarded.  It is the ability of the non-familiar pathway that is to be considered.”

Taking into consideration the appropriate legislation and case law it is my submission that the tribunal has erred in law with its approach to entitlement to the lower rate of the mobility component.’

14.	I accept the submission which has been made by Mrs Hulbert.  The decision of Mrs Commissioner Brown in R1/03(DLA) was reported in what were then the reports of the decisions of the Social Security Commissioners (now the Administrative Appeal Reports).  As a decision on a question of significant legal principle, it is binding on decision-makers and appeal tribunals.  As a reported decision it has greater prominence in having decided difficult issues, contributed to the coherent operation of the law and, most significantly, provided practical guidance to decision-makers and appeal tribunals.  Mrs Commissioner Brown has emphasised the requirement to identify and apply the correct legislative tests.  Further, she has given guidance on the meaning of a significant phrase within section 73(1)(d) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended.  In the instant case the reference by the appeal tribunal to ‘unfamiliar places’ may have been inadvertent.  Nonetheless, it may also be the case that as in R1/03(DLA) the appeal tribunal has misapplied the relevant legislative test.

15.	Mrs Hulbert has identified a second basis on which she has submitted that the decision of the appeal tribunal may be in error of law.  Mrs Hulbert has noted that the appeal tribunal’s Decision Notice records that the appeal tribunal made an award of entitlement to the lowest rate of the care component of DLA for a period of two years from and including 25 April 2013.  Mrs Hulbert goes on to state:

‘Whilst the decision notice has stated that an award of the lowest rate care component has been made, there is nothing to support this within the reasons as on reading them it would appear that the tribunal found that there was no entitlement to any rate of the care component.  It is my submission that this confusion renders the decision erroneous in law.’

16.	I agree with Mrs Hulbert that the statement of reasons is inconsistent with what the appeal tribunal has recorded in its Decision Notice.  The wording of the statement of reasons reflects a decision that there is no entitlement to the care component of DLA at any rate.  The Department was a party to the proceedings before the appeal tribunal.  As a party to the proceedings the Department was entitled to know, through the statement of reasons for the appeal tribunal’s decision, the basis on which the appeal tribunal had allowed the appeal and revised the decision of the Department to allow an entitlement to the lowest rate of the care component of DLA.  The requirement to provide reasons which are adequate to explain its decision is augmented when the decision which the appeal tribunal is arrived at is ‘adverse’ or ‘unfavourable’ to one of the parties to the proceedings.

17.	Having found, for the reasons which are set out above, that the decision of the appeal tribunal is in error of law I do not have to consider the appellant’s other grounds for appealing.  I would indicate, however, that I would not have found the decision of the appeal tribunal to be in error of law on the grounds submitted by the appellant.

Disposal

18.	The decision of the appeal tribunal dated 5 November 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.

19.	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 22 May 2013 in which a decision maker of the Department decided that the appellant did not have an entitlement to either rate of DLA from and including 25 April 2013;

	(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

1 February 2016