JB-v-Department for Communities (DLA) [2016] NI Com 68

Decision No:  C25/16-17(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 19 November 2015

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 19 November 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 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 1 July 2015 a decision-maker of the Department decided that the appellant was not entitled to DLA from and including 18 July 2015. Following a request to that effect, and the receipt of additional information from the appellant, the decision dated 1 July 2015 was reconsidered on 28 July 2015 but was not changed. An appeal against the decision dated 1 July 2015 was received on 18 August 2015.

6.	The appeal tribunal hearing took place on 19 November 2015. The appellant was present and was accompanied by his wife.  There was a Departmental Presenting Officer present.  The appeal tribunal allowed the appeal, in part, making an award of entitlement to the lowest rate of the care component of DLA for a fixed period from 18 July 2015 to 19 July 2016 but disallowing entitlement to the mobility component from and including 18 July 2015.
 
7.	On 20 April 2016 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS).  On 10 May 2016 the application for leave to appeal was refused by the Legally Qualified Panel Member.

	Proceedings before the Social Security Commissioner

8.	On 20 June 2016 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 4 July 2016 observations on the application for leave to appeal were requested from Decision Making Services (‘DMS’).  In written observations dated 22 July 2016, Mr Hinton, for DMS, supported the application for leave to appeal on two of the grounds submitted by the appellant and on a further identified ground.  Written submissions were shared with the appellant on 27 July 2016. 

9.	On 21 September 2016 I accepted the late application for special reasons.  On 29 September 2016 I granted leave to appeal. When granting leave to appeal I gave, as a reason, that certain of the grounds advanced by the appellant were arguable.  On the same date I directed that an oral hearing of the appeal would not be required.

	Analysis

10.	In his constructive and helpful written observations on the application for leave to appeal, Mr Hinton has made the following submissions:

	‘Issue 1

The tribunal was wrong to state that at the relevant date there was no clinical evidence of mental health instability.  (The appellant) contends he has had mental health problems for many years and these have been detailed in his medical notes.

The tribunal correctly referred to the relevant date as 1 July 2015 which is the decision under appeal.  In its reasoning the tribunal set out how it assessed the clinical evidence at the relevant date as follows:

“As at the relevant date (as supposed to subsequent to the relevant date), there was no clinical evidence of mental health instability.  He may have had some problems concentrating and it is noted he attends Choice Counselling but with no referral to the actual Mental Health Team...”

The tribunal was also of the opinion that (the appellant) overstated his symptoms in both his appeal letter and his self assessment form along with his oral evidence.

It is correct to state that the tribunal could only take into account evidence pertaining on or before the relevant date (1 July 2015).  However its statement “as at the relevant date (as supposed to subsequent to the relevant date)” is of some concern.  The use of the phrase “subsequent to the relevant date” would seem to relate to two sources of evidence the tribunal referred to at an earlier stage in its reasoning.  These were two letters that (the appellant) provided that were written by his GP, Dr McL.  These letters were dated 21 July 2015 and 2 September 2015.  Whilst these letters post-dated the decision under appeal, it does not necessarily follow that the evidence contained within was not relevant to the date of decision under appeal.  It would appear to me however that the tribunal gave scant regard to the evidence contained within these sources because in its view they were subsequent to the relevant date and could not be taken into account in assessing the state of (the appellant’s) mental health.

It is my contention both these letters contained information relevant to the date of decision.  In the correspondence dated 21 July 2015 Dr McL made the following comments with regards to (the appellant’s) mental state:

“J also suffers from significant Post Traumatic Stress Disorder following incidents relating to childhood abuse and physical attacks during the troubles.

	J has recently been attending counselling to help with his mental health”.

Consequently it is clear that the above evidence related to a period prior to the date of decision and any mental health problems arising would relate to the relevant period.

Similarly, the correspondence dated 2 September 2015 contained the following information:

“As previously stated J has a h/o PTSD.  He has been referred to counselling.  He has seen the community mental health team in the past and has a h/o deliberate self harm (through cutting) and has had previous suicidal ideation and thoughts of life not worth living”.

In a similar vein to the earlier letter the evidence presented here indicated that (the appellant’s) mental health problems were more severe that the tribunal gave credence to.

I would accept that it is not the medical condition itself but the needs arising that confers entitlement to benefit. Consequently the tribunal had to assess (the appellant’s) care and mobility needs when making its final deliberations.  However, it would appear to me in assessing the extent of (the appellant’s) mental problems the tribunal placed most weight on Dr McL’s factual report dated 11 June 2015 and also concluded that (the appellant) was overstating his symptoms in the evidence he provided.  However, I have shown in the aforementioned correspondence submitted by (the appellant) that the evidence concerning his mental health related to the period under appeal.

In an unreported NI decision C24/03-04(DLA) Commissioner Brown interpreted the meaning of Article 13(8)(b) of the Social Security (NI) Order 1998.  The provision is as follows:

“In deciding an appeal under this Article an appeal tribunal –

(a)...

	(b) Shall not take into account any circumstances not obtaining at the time when the decision appealed against was made”.

At paragraph 7 of the decision Commissioner Brown interpreted Article 13(8) and quoted from a GB Commissioners decision CDLA/4734/99. I reproduce in full paragraph 7 as follows:

“This is a mandatory provision.  It prevents the Tribunal from taking account of circumstances not obtaining at the date of the decision under appeal. It does not relate to evidence whenever it came into being, which is relevant to what the circumstances were up to the date of the relevant decision.  It does not prevent the Tribunal taking into account evidence obtained after the decision under appeal was made, for the purpose of drawing inferences as to the circumstances obtaining when or before the decision was made.  For example, if a claimant tells the Tribunal that his situation now is the same as it was at the date of the decision under appeal and produces evidence as to his present walking ability, why should that latter evidence if accepted not be used to determine the circumstances at the date of the claim? 

The Tribunal in deciding the appeal must not take into account circumstances which did not obtain at the time of the decision under appeal.  However, it is entitled to take account of any evidence which indicates what those circumstances were.

In this connection I would refer in particular to decision CDLA/4734/99, a decision of Mr Commissioner Jacobs in Great Britain.  As Commissioner Jacobs stated at paragraph 57 of that decision: -

“There is a difference between a circumstance and evidence of that circumstance.”

At paragraph 58 he stated: -

“Section 12(8)(b) [the Great Britain equivalent to Article 13(8)(b)] limits an Appeal Tribunal’s jurisdiction by preventing it taking into account a fresh circumstance.  It is only concerned with evidence in this respect: evidence is not admissible unless it relates to circumstances obtaining at the date of the decision under appeal.  I stand by the statement of the law that I set out in CDLA/2934/1999, paragraph 9: -

“In the case of a claim for a Disability Living Allowance, the jurisdiction [of an Appeal Tribunal] is limited to the inclusive period from the date of claim to the date of the decision under appeal.  The effect is also to limit the evidence that is relevant to the appeal.  The only evidence that is relevant is evidence that relates to the period over which the tribunal has jurisdiction.  However, it is the time to which the evidence relates that is significant, not the date when the evidence was written or given.  It does not limit the tribunal to the evidence that was before the officer who made the decision.  It does not limit the tribunal to evidence that was in existence at that date.  If evidence is written or given after the date of the decision under appeal, the tribunal must determine the time to which it relates.  If it relates to the relevant period, it is admissible.  If it relates to a later time, it is not admissible.”

Commissioner Brown emphasised at paragraph 8:

“I can put the matter no better than Mr Commissioner Jacobs did in the above extract with the caveat as regards the final sentence in relation to which I would add only this, that the evidence may relate to the period over which the Tribunal has jurisdiction even though it also relates to a later time so long as it sheds light on the circumstances obtaining at the date of the decision under appeal...”

Therefore, I would contend the tribunal was wrong to state that there was no clinical evidence of mental health instability when correspondence forwarded by (the appellant) would tend to state otherwise.  I would also make the point that the GP factual report completed by Dr McL on 11 June 2015 (tabbed document 4) stated on page 4 that (the appellant) had “moderate depression – deterioration recently”.  This factual report was contained within the scheduled papers placed before the tribunal and I would contend Dr McL’s statement of recent deterioration in (the appellant’s) depression merited further investigation rather than a general observation of “no clinical evidence of mental health instability”.

	…

Consequently in light of the observations submitted above including the aforementioned case law, I would contend the tribunal erred in concluding there was no clinical evidence of mental instability.  I would contend it gave scant regard to the two sources of evidence from Dr McL submitted by (the appellant) because it considered, wrongly in my view, that it post-dated the decision under appeal.’

11.	I accept the submission which has been made by Mr Hinton and, for the reasons which he has set out, agree that the decision of the appeal tribunal is in error of law. I also agree that this error was material and was, on its own, sufficient to mandate the setting aside of the appeal tribunal’s decision.

12.	The appellant supplied the correspondence dated 21 July 2015 from his General Practitioner (GP) as part of his request for a reconsideration of the adverse benefit decision dated 1 July 2015.  He forwarded the correspondence dated 21 July 2015 once again and together with further correspondence dated 2 September 2015 from his GP after making his appeal.

13.	The appeal tribunal was correct to note the ‘relevant date’ i.e. the date of the decision under appeal, was 1 July 2015. It is clear, therefore, that the two items of correspondence from the appellant’s GP post-dated the decision under appeal.  The principles in R(DLA)2/01 permit to take evidence which post-dated the decision under appeal but only if it related to the date of the decision under appeal.  As was noted by Mr Hinton, the appeal tribunal has recorded that:

‘… as at the relevant date (as supposed to subsequent to the relevant date) there was no clinical evidence of mental health instability.’

14.	I am of the view that the phrase ‘as supposed to’ must have meant to be ‘as opposed to’. The evidence contained in the two items of correspondence from the appellant’s GP did contain evidence of ‘mental health instability’.  In particular, the correspondence of 2 September 2015 notes that the appellant had a history of post traumatic stress disorder, that he had been referred to counselling, that he had seen the community mental health team in the past, had a history of deliberate self-harm and had previous suicidal ideation and thoughts of life not worth living. The appeal tribunal was under a duty to assess whether this evidence related to the period over which it had jurisdiction and whether, accordingly, it was admissible to be assessed as part of the overall evidence before the appeal tribunal. 

15.	Although I cannot be certain, it would seem that the appeal tribunal, in stating, with my amendment, that ‘as opposed to subsequent to the relevant date’, concluded that the evidence from the appellant’s GP, which post-dated the decision under appeal, was not admissible. If that was the case, then the appellant was entitled to an explanation for that conclusion.  The evidence contained in the correspondence dated 2 September 2015 makes several references to a history of mental health problems.  The correspondence is dated at a time which is not significantly post the date of the decision under appeal. 

16.	This is sufficient to dispose of the appeal and I do not have to consider the appellant’s other grounds of appeal. I have noted, however, that Mr Hinton has agreed that the appeal tribunal had erred in its assessment of aspects of the appellant’s credibility.  Further he has identified what he has submitted may be an additional potential error of law in the manner in which the appeal tribunal approached its assessment of whether the appellant satisfied the conditions of entitlement to the middle or highest rates of the care component of DLA.  More particularly, Mr Hinton has submitted that the appeal tribunal’s conclusions that the appellant’s accepted care needs were not for ‘most of the time’ ran contrary to the principles set out by the then Chief Social Security Commissioner in Great Britain in R(DLA) 5/05.

	Disposal

17.	The decision of the appeal tribunal dated 19 November 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. 

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 1 July 2015, which decided that the applicant was not entitled to DLA from and including 18 July 2015;

	(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

21 October 2016