SM-v-Department for Social Development (DLA) [2016] NICom 52

Decision No:  C5/16-17(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 16 February 2015

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is a claimant’s appeal from the decision of an appeal tribunal sitting at Enniskillen.

2.	For the reasons I give below, allow the appeal. I set aside the decision of the appeal tribunal and I remit the appeal to a newly constituted tribunal for determination. 

	REASONS

	Background

3.	The applicant claimed disability living allowance (DLA) from the Department for Social Development (the Department) from 13 May 2008 on the basis of needs arising from rheumatism, depression and anxiety. The Department obtained a report from the applicant’s general practitioner (GP). The Department obtained a report from an Examining Medical Practitioner (EMP). On 14 August 2008 the Department decided on the basis of all the evidence that the applicant satisfied the conditions of entitlement to DLA at the high rate of the mobility component and the middle rate of the care component from and including 13 May 2008. 

4.	On 10 April 2013, the applicant completed a periodic review form sent to her by the Department. The Department obtained a report from her GP on 8 May 2013. On 20 May 2013 it was decided that there were no grounds to supersede the decision of 14 August 2008. However, observation of the applicant was conducted by the Benefits Investigation Service from 14 May 2013 to 28 May 2013. Information was received from the applicant on 10 October 2013. On 14 October 2013 the Department superseded the decision of 14 August 2008, and decided that the applicant was not entitled to DLA at any rate from and including 15 May 2013. The applicant appealed.

5.	The appeal was considered by a tribunal consisting of a legally qualified member (LQM), a medically qualified member and a disability qualified member. The applicant applied through her solicitors to adjourn the proceedings and did not attend to give evidence. The tribunal proceeded with a hearing on 16 February 2015 and disallowed the appeal. The applicant requested a statement of reasons for the tribunal’s decision and this was issued on 16 April 2015. The applicant applied to the LQM for leave to appeal from the decision of the appeal tribunal but leave to appeal was refused by a determination issued on 20 May 2015. On 19 June 2015 the applicant applied to a Social Security Commissioner for leave to appeal. The application was not in the standard form. An application in the standard form was submitted on 17 August 2015. 

Grounds

6.	The applicant’s solicitor submitted that the tribunal has erred in law on the basis that the tribunal did not give the applicant a fair hearing contrary to Article 6 ECHR, as her husband was facing criminal proceedings in relation to benefit fraud and she could not give evidence in the circumstances.

7.	The Department was invited to make observations on the applicant’s grounds. Mr Kirk of Decision Making Services (DMS) responded on behalf of the Department. Mr Kirk submitted that the tribunal had not erred in law as alleged and indicated that the Department did not support the application. 

8.	Subsequently, the applicant changed representative. Her new representative, Mr Hatton of Law Centre NI, ceased to rely on the grounds advanced by the solicitor. He sought late leave to pursue two new grounds. The Department did not object to the introduction of new grounds and I extended time and permitted Mr Hatton to advance these. 

9.	The first ground was that the tribunal had not properly considered the application of regulation 7(2)(c) of the Social Security (Decisions and Appeals) Regulations (NI) 1999, regarding the date on which any supersession on grounds of relevant change of circumstances should take effect. 

10.	The second ground was that the tribunal had wrongly elected not to have regard to the witness statements given by the applicant to investigators on the basis that these were not considered by the Department when the supersession decision was taken. He submitted that the material effect of this was that the issue of the applicant’s claimed variability in her condition was not addressed by the tribunal. 

	The tribunal’s decision

11.	The applicant’s solicitor had written to request postponement of the appeal hearing. This was on the basis that the applicant’s husband had criminal proceedings pending against him in relation to alleged benefit fraud. The LQM had declined to postpone the appeal. The tribunal considered the question of adjournment on the day of hearing, when neither the applicant nor her representative attended. It found that proceeding with the appeal, which involved consideration of the applicant’s entitlement to DLA, would not involve a real risk of prejudice to her husband, who was a defendant in criminal proceedings, and decided the appeal in the absence of the applicant. In declining to adjourn the proceedings, the tribunal made reference to a number of authorities including Mote v Secretary of State for Work and Pensions [2007] EWCA Civ 1324 (reported as R(IS)4/08)

12.	The tribunal considered the documentary evidence before it, including a record of an interview under caution conducted with the applicant, and the applicant’s written submissions. The tribunal had viewed video evidence in the form of surveillance of the applicant walking in the street to and from her shop and performing certain physical tasks such as cleaning the shop window. It reached its decision on the basis of the video evidence, accepting that while the applicant had generalised pains, these did not render her virtually unable to walk or give rise to a need for attention in connection with bodily functions, or give rise to an inability to prepare a cooked main meal. The tribunal elected not to rely on the statements made under caution to investigators. The tribunal decided that there were grounds to supersede the existing award on the basis of relevant change of circumstances. 

	Hearing 

13.	I held an oral hearing of the appeal. The parties at the date of hearing were in agreement on the issues in the appeal. I am grateful for their submissions. 

	Assessment

14.	The applicant ceased to rely on the grounds initially advanced on her behalf and I consider that this was a wise course. 

15.	Mr Hatton essentially now submitted that the ground of supersession relied on by the Department and accepted by the tribunal was change of circumstances, in particular an improvement in the applicant’s functional ability. The Department’s decision of 14 October 2013 removed entitlement to both components of DLA from 15 May 2013. Observations of the applicant by Benefit Investigation Services began on 14 May 2013. The Department and subsequently the tribunal relied on Regulation 6(2)(a)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations (NI) 1999, as the ground for supersession.

16.	However, Mr Hatton submitted that the tribunal failed to consider the provisions relating to the date from which the supersession should take effect. He submitted that in order to allow a decision made on 15 October 2013 to take effect from an earlier date, the tribunal would have had to consider whether regulation 7(2)(c) of the 1999 regulations was satisfied. This states, in so far as is relevant to this matter:

“7(2) Where a decision under Article 11 is made on the ground that there has been, or it is anticipated that there will be, a relevant change of circumstances since the decision had effect or, in the case of an advance award, since the decision was made, the decision under Article 11 shall take effect—

(c)	where the decision is not advantageous to the claimant—

	(ii)	in the case of a disability benefit decision, or an incapacity benefit decision where there has been an incapacity determination or an employment and support allowance decision where there has been a limited capability for work determination (whether before or after the decision), where the Department is satisfied that in relation to a disability determination embodied in or necessary to the disability benefit decision, or the incapacity determination or an employment and support allowance decision where there has been a limited capability for work determination, the claimant or payee failed to notify an appropriate office of a change of circumstances which regulation 32 of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987 required him to notify, and the claimant or, as the case may be, payee knew, or could reasonably have been expected to know, that the change of circumstances should have been notified—

		(aa)	from the date on which the claimant or, as the case may be, the payee ought to have notified the change of circumstances, or

		(bb)	if more than one change has taken place between the date from which the decision to be superseded took effect and the date of the superseding decision, from the date on which the first change ought to have been notified, …”

17.	In order for this provision to apply and in order to allow the applicant’s award of DLA to be removed from 15 May 2013, two criteria must be met. The first is that “the claimant or payee failed to notify an appropriate office of a change of circumstances which regulation 32 of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987 required him to notify” and the second is that the claimant or payee knew or could reasonably have known that the changes in circumstances should have been notified. Mr Hatton submits, and Mr Kirk for the Department concurs, that the tribunal has not applied the relevant law. For the reasons I set out in JMcQ v DSD [2014] NI Com 23, I agree.

18.	Mr Hatton further submits that the tribunal has erred in law by excluding the record of the interview under caution dated 24 September 2013 from consideration. In that interview, aspects of the video evidence were put to the applicant for comment. She maintained, in response to the observation that she had walked considerable distances, that she had “good days and bad days”. It is not clear why the tribunal considered that it had to exclude the record of interview from consideration. It was not before the Department when it was considering grounds of supersession. However, the tribunal was not restricted to the material before the Department. Its role was not one of reviewing the Department’s decision, but of making an independent decision on the basis of all the evidence before it. Mr Kirk agrees with Mr Hatton that by failing to address the issue of variability in the applicant’s condition, the tribunal had erred in law and that the error of law was a material one. 

19.	Each of the parties agrees that the tribunal has erred in law. They submit that I should set aside the decision of the appeal tribunal and remit the appeal to a newly constituted tribunal. I accept the submissions of the parties. 

20.	I therefore set aside the decision of the appeal tribunal and I remit the appeal for determination by a newly constituted tribunal. The new tribunal shall have particular regard to regulation 7(2)(c) of the Social Security (Decisions and Appeals) Regulations (NI) 1999. 

21.	The new tribunal shall also take into account all the evidential material in the appeal, including any record of interview with the applicant.

(signed)
O Stockman

Commissioner

29 July 2016