GW-v-Department for Social Development (DLA) [2016] NICom 27
Decision No:  C9/15-16(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Application by the above-named claimant for
leave to appeal to a Social Security Commissioner
on a question of law from a tribunal's decision
dated 16 September 2014

DETERMINATION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 16 September 2014 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 3 March 2014 a decision-maker of the Department decided that the appellant was not entitled to either component of DLA from and including 24 February 2014.  An appeal against the decision dated 3 March 2014 was received in the Department on 18 March 2014.  On 31 March 2014 the decision dated 3 March 2014 was looked at again but was not changed.

6.	The oral hearing of the appeal took place on 16 September 2014.  The appellant was present and was accompanied by a friend.  There was no Departmental Presenting Officer present.  The appeal tribunal allowed the appeal and made an award of entitlement to the higher rate of the mobility component and lowest rate of the care component of DLA from 24 February 2014 to 23 February 2017.

7.	On 2 March 2015 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS).  On 26 March 2015 the Legally Qualified Panel Member (LQPM) of the appeal tribunal accepted that the application for leave to appeal was received outside of the prescribed time limits for making such an application but that special reasons existed for accepting the late application.  The LQPM refused leave to appeal.

	Proceedings before the Social Security Commissioner

8.	On 7 May 2015 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 2 June 2015 observations on the application for leave to appeal were requested from Decision Making Services (DMS). In written observations received on 30 June 2015, Mrs Hulbert, for DMS, supported the application for leave to appeal on two of the grounds advanced by the appellant.  Mrs Hulbert submitted, however, that one of the errors would not, in itself, vitiate the decision of the appeal tribunal.  Written observations were shared with the appellant on 30 June 2015.

9.	On 23 September 2015 I granted leave to appeal.  In granting leave to appeal, I gave, as a reason that an arguable issue arose as to whether the appeal tribunal gave proper consideration to potential entitlement to the middle rate of the care component of DLA.  On the same date I directed that an oral hearing of the appeal would not be required.

10.	There then followed a delay in the promulgation of this decision.  This was because of a mis-filing of the case papers in the Office of the Social Security Commissioners.  By separate correspondence, apologies for the delay were forwarded to the appellant.  The appeal has been dealt with as a priority since it was received back in my own office.

	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.”

	The error of law in this case

13.	In her written observations on the application for leave to appeal, Mrs Hulbert made the following submission:

‘Looking at all the evidence contained in the papers there appears to be areas of conflict with regards to the issue of toilet needs. Within the self-assessment form (the appellant) stated she does not need help with her toilet needs but uses an aid to clean herself afterwards; she would occasionally have to shower as she cannot get to the toilet quick enough. She also has a raised toilet seat. In evidence attached to her letter of appeal she has recorded that she needs help with toileting 8 out of 10 days but has not elaborated on what she needs help with. In comments from her sister, her sister stated that whilst (the appellant) has an aid to clean herself after the toilet sometimes if she is stiff and sore she needs help with this task. On several occasions she has fallen getting up to go to the toilet and is unable to get up without help.

In the factual report her GP has recorded that she can use the toilet herself. At the hearing she advised the tribunal:

“- Varying ability to get myself to bathroom. Carry phone with me. Carry stick at that stage also. Stumble one day a week. No other form of aids. 

...

-While at toilet, not always able to toilet myself- 4-5 times a week. Sister helps me varying times 5-10 minutes. Raised toilet seat. With heart failure, so exhausted all the time.”

In its reasons the tribunal concluded:

“...The Appellant’s oral evidence was she has a variable ability to rise, wash and dress. We accept she may need up to 10 minutes encouragement to rise, and some assistance to get out of bed, and a further 10 minutes assistance from her sister to toilet...Accordingly, the morning time routine requires assistance from someone for about 30 minutes per day...”

The tribunal awarded (the appellant) lower rate care component as it was of the view that she required help from another person for a significant portion of the day; it did not deduce that the help she required was enough to equate to her requiring frequent attention throughout the day which would carry an award of middle rate care component. 

It is my view, however, that the tribunal has not given adequate consideration to the issue of toilet needs and the conflicting evidence before it. As I have highlighted above the evidence in the self-assessment stated no help was required yet subsequent  paper evidence and oral evidence at the hearing state she required help to toilet 4 days out of five and during the night. The tribunal has not queried this conflict nor investigated what exact format this help takes. It has accepted that (the appellant) needs help in the morning to toilet without investigating the nature of this help and furthermore it has given no reasons as to why it concluded that help is required in the morning but at no other point during the day or night. As such it is my view the tribunal has erred in law in this respect. 

Alternatively I would submit that it may be the case when reading the statement of reasons that the tribunal has accepted that (the appellant) only requires assistance when she gets out of bed and this is only for a period of 30 minutes, however it is not totally clear that this is the case therefore I would submit that the tribunal’s reasons are inadequate and as such this too would amount to an error in law in the tribunal’s decision.’

14.	I accept the submission which Mrs Hulbert has made and, for the reasons which she has set out, also accept that the decision of the appeal tribunal is in error of law.  I set aside the decision of the appeal tribunal with a degree of reluctance given the appeal tribunal’s careful and judicious consideration of the other issues arising.

15.	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, however, for the additional reasons which have been set out by Mrs Hulbert, not have found that the decision of the appeal tribunal was in error of law on the basis of those submitted grounds.

	Disposal
 
16.	The decision of the appeal tribunal dated 16 September 2014 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.

17.	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 3 March 2014, which decided that the applicant was not entitled to DLA from and including 24 February 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):  Kenneth Mullan

Chief Commissioner

26 April 2016