BMcK-v-Department for Communities (DLA) [2016] NICom 72

Decision No:  C18/16-17(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 8 December 2015

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 8 December 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 23 July 2015 a decision maker of the Department decided that the appellant was not entitled to DLA from and including 29 April 2015.  An appeal against the decision dated 23 July 2015 was received in the Department on 10 August 2015. 

6.	Following an earlier postponement the substantive appeal tribunal hearing took place on 8 December 2015.  The appellant was present and was represented by Ms Elliott from the Legal Support Project.  There was a Departmental Presenting Officer present.  The appeal tribunal disallowed the appeal and confirmed the decision dated 23 July 2015. 

7.	On 15 April 2016 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.  The appellant was now represented by Mrs Carty of the Law Centre (Northern Ireland).  On 28 April 2016 the application for leave to appeal was refused by the Legally Qualified Panel Member (LQPM).

	Proceedings before the Social Security Commissioner

8.	On 6 June 2016 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 14 July 2016 observations on the application for leave to appeal were requested from Decision making Services (DMS).  In written observations dated 26 July 2016, Mr Culbert, for DMS, supported the application on one of the grounds advanced by Mrs Carty on behalf of the appellant.  Written observations were shared with the appellant and Mrs Carty on 27 July 2016.  Correspondence in reply was received from Mrs Carty on 12 August 2016. 

9.	On 15 September 2016 I granted leave to appeal.  On the same date I determined that having considered the case papers an oral hearing of the appeal would not be required. 

	Errors of law

10.	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?

11.	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

12.	In the application for leave to appeal, Mrs Carty made the following submission:

‘The tribunal has erred in law in exceeding its jurisdiction under Article 13(8) of the Social Security (NI) Order 1998

Article 13(8) provides that,

(8) In deciding an appeal under this Article, an appeal tribunal –

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

The decision appealed against in this instance was 23 July 2015.

The tribunal has erred in giving consideration and weight to the provision of aids and appliances which were not obtaining at the time when the decision appealed against was made.’

13.	In his written observations on the application for leave to appeal, Mr Culbert made the following submission:

Mrs Carty points out that article 13(8)(b) provides that in deciding an appeal a tribunal shall not take into account any circumstances not obtaining at the time when the decision appealed against was made and highlights that the decision appealed against was made on 23rd July 2015.

Mrs Carty contends that the tribunal has erred in giving consideration and weight to the provision of aids and appliances which were not obtaining at the time when the decision appealed against was made.

In the reasons for decision the tribunal has stated:

“...We cannot overlook the fact that there has been improvement in her condition and bearing in mind the 6 month perspective test feel that following intervention by the Continence Advisor and the implementation of double voiding techniques and suppression techniques that (the appellant’s) condition had improved to a degree that she would not have satisfied the 6 month requirement...”

“Regarding care: It is clear from the Appellant’s evidence today that in September, October 2015 she has been supplied with numerous aids from occupational therapy. At the hearing today (the appellant) confirms that with her bed lever she is now usually independent in getting out of bed.  She confirms that she can now walk independently with the stick provided to her by the OT in August.  She has also been provided with a toilet frame and confirms she can now manage the toilet with this frame.  She also confirms that she can change her own incontinence pads and now only showers twice a day on an odd occasion. (The appellant) confirms that she can now use the stairs independently thanks to the provision of a second stair rail...

It is clear from (the appellant’s) evidence that her situation has mostly improved with the assistance of the aids provided by the OT services and we note they were installed in August, September 2015.  We therefore feel that the 6 month rule again is applicable and it is clear that care needs do not extend 6 months after the claim was made.” 

I submit that the tribunal’s various references to the 6 month rule relate to the prospective test condition as provided by section 72(2)(b)(i) (for the purposes of the care component) and section 73(9)(b)(i) (for the purposes of the mobility component) of the Social Security Contributions and Benefits Act (Northern Ireland) 1992.

The prospective period condition requires that a person be likely to satisfy one of the disability conditions for a period of 6 months beginning with the date an award would begin.  The prospective period condition must be decided on the information available and the prognosis at the date of the claim.  An award is not precluded if by the time the decision is made it has transpired that the claimant’s needs have not lasted for six months.  Evidence that the claimant’s medical condition did in fact improve within six months is relevant only if, at the date of claim, it was likely to do so. In paragraph 4 of unreported decision C5/05-06 (DLA) Commissioner Brown held: 

“ ..... The prospective period condition requires that a person be likely to satisfy one of the disability conditions for a period of 6 months beginning with the date an award would begin.  That must be considered by reference to what was likely at the date of claim.”  

I submit that the tribunal used the benefit of hindsight in making its decision when it should have had its mind set to the date of the claim and what was likely to happen as opposed to what in fact has happened and in doing so has incorrectly applied the prospective test and as such has erred in law.’

14.	I agree with the submissions which have been made and agree that the decision of the appeal tribunal is in error of law and must be set aside. 

	Disposal  
  
15.	The decision of the appeal tribunal dated 8 December 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. 

16.	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 23 July 2015, which decided that the applicant was not entitled to DLA from and including 29 April 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):
Kenneth Mullan

Chief Commissioner

4 November 2016