AP-v-Department for Communities (DLA) [2016] NICom 78

Decision No:  C7/16-17(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 27 May 2015

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I have concluded that the decision of the appeal tribunal dated 27 May 2015 is in error of law. 

2.	In the application for leave to appeal, Ms Loughrey, of the Law Centre for Northern Ireland, submitted that the decision of the appeal tribunal was in error of law on the basis that the appeal tribunal had not resolved a conflict of fact between contradictory medical evidence, and, more specifically, had misinterpreted spirometry and bone density tests.

3.	In her written observations on the application for leave to appeal, Mrs Hulbert, for Decision Making Services (DMS), had opposed the application for leave to appeal on the grounds advanced by Ms Loughrey but had supported the application on a further identified ground.  The further ground was that the appeal tribunal may not have applied the test for entitlement to the lower rate of the mobility component of disability living allowance (DLA) in the correct manner.

4.	Article 15(7) of the Social Security (Northern Ireland) Order 1998, as amended, (‘the 1998 Order’) provides that:

‘If each of the principal parties to the appeal expresses the view that the decision appealed against was erroneous in point of law, the Commissioner may set aside the decision and refer the case to a tribunal with directions for its determination.’         

5.	In this case, it is clear that both parties have expressed the view that the decision appealed against was erroneous in law. In this regard it does not matter that the parties have set out different bases on which they have concluded that the decision appealed against was erroneous in point of law.

6.	Where a Social Security Commissioner sets aside a decision under Article 15(7) it does not necessarily imply that the Commissioner is satisfied that the decision under appeal was erroneous in point of law. 

7.	Having considered the grounds advanced by Ms Loughrey, I am not, with respect to her submissions, satisfied that the decision of the appeal tribunal was in error of law on the basis of those grounds.  The statement of reasons for the appeal tribunal’s decision runs to 16 A4 pages and has been prepared with precision and attention to detail.  I am satisfied that the appeal tribunal undertook a rigorous and rational assessment of all of the evidence before it, including the medical evidence and the results of the spirometry and bone density tests.  The appeal tribunal gave a sufficient explanation of its assessment of the evidence, explaining why it took the particular view of the evidence which it did.  Any conflict in the evidence before the appeal tribunal has been clearly resolved and explained.

8.	I am not content, therefore, to set aside the decision of the appeal tribunal using the discretionary power afforded by Article 15(7).

9.	I have, however, concluded that there is a degree of substance in the ground identified by Mrs Hulbert.  The issue is a marginal one but I am satisfied that there is an error of law in the appeal tribunal’s decision. With a degree of reluctance, given the appeal tribunal’s careful and judicious management of the other aspects of the appeal, I set aside the decision appealed against, pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, 

10.	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. 

11.	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.

12.	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 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

13.	On 26 February 2014 a decision-maker of the Department decided that the appellant was not entitled to either component of DLA from and including 18 November 2013.  Following a request to that effect the decision dated 26 February 2014 was reconsidered on 29 April 2014 but was not changed.  An appeal against the decision dated 26 February 2014 was received in the Department on 27 May 2014.

14.	Following an earlier postponement, the appeal was listed for oral hearing on 11 December 2014.  The appeal tribunal allowed the appeal in part. On 21 January 2015 the decision of the appeal tribunal dated 11 December 2014 was set aside by the Legally Qualified Panel Member (LQPM). 

15.	The substantive appeal tribunal hearing took place on 27 May 2015. The appellant was present and was represented.  There was no Departmental Presenting Officer present. The appeal tribunal disallowed the appeal and confirmed the decision dated 26 February 2014.

16.	On 2 November 2015 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS).  On 16 November 2015 the application for leave to appeal was refused by the LQPM.

	Proceedings before the Social Security Commissioner

17.	On 16 December 2015 a further application for leave to appeal was received in the Office of the Social Security Commissioners. The appellant was now represented by Ms Loughrey of the Law Centre (Northern Ireland).  On 27 January 2016 observations on the application were requested from Decision Making Services (DMS).  In written observations received on 22 February 2016, Mrs Hulbert, for DMS, opposed the application on the grounds submitted on behalf of the appellant but supported the application on another identified ground. Written observations were shared with the appellant and Ms Loughrey on 29 February 2016. On 18 April 2016 written observations in reply were received from Ms Loughrey.      

18.	On 7 July 2016 I granted leave to appeal. In granting leave to appeal I gave, as a reason, that an arguable issue arose as to the manner in which the appeal tribunal addressed the potential applicability of section 73(1)(d) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended.  On the same date I determined that having considered the papers, an oral hearing of the appeal would not be required.
	
	Errors of law

19.	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?

20.	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

21.	As was noted above, the record of proceedings for the appeal tribunal hearing (across both components of DLA) runs to five A4 pages, and from this it is clear that the appeal tribunal went about the forensic evidence-gathering process in a careful and thorough manner.  Equally, the appeal tribunal has provided a detailed, analytical statement of reasons for its decision.  Where then did the appeal tribunal go wrong in law?

22.	The appeal tribunal considered entitlement to both the higher and lower rates of the mobility component of DLA.  In the statement of reasons for its decision it set out the legislative provisions governing entitlement to both rates of the mobility component. It is clear, therefore, that it had the relevant tests in mind. 

23.	In the statement of reasons for its decision, the appeal tribunal has included a lengthy section headed ‘General Comment about Credibility’. In summary, the appeal tribunal concluded that it considered the ‘… appellant’s evidence to be somewhat inconsistent and exaggerated in respect of her mobility and care issues.’ I find no fault with this evidential assessment. In C14/02-03(DLA), Commissioner Brown, at paragraph 11, stated:

‘there is no universal rule that a Tribunal must always explain its assessment of credibility.  It will usually be enough for a Tribunal to say that it does not believe a witness.’

24.	Additionally, in R3/01(IB)(T), a Tribunal of Commissioners, at paragraph 22 repeated what the duty is:

	‘We do not consider that there is any universal obligation on a Tribunal to explain its assessment of credibility.  We disagree with CSIB/459/97 in that respect.  There may of course be occasions when this is necessary but it is not an absolute rule that this must always be done.  If a Tribunal makes clear that it does not believe a claimant’s evidence or that it considers him to be exaggerating this will usually be sufficient.  The Tribunal is not required to give reasons for its reasons. There may be situations when a further explanation will be required but the only standard is that the reasons should explain the decision.  It will, however, normally be a sufficient explanation for rejecting an item of evidence, including evidence of a party to an appeal, to say that the witness is not believed or is exaggerating.’

25.	This reasoning was confirmed in CIS/4022/2007. After analysing a series of authorities on the issue of the assessment of credibility, including R3-01(IB)(T), the Deputy Commissioner (as he then was) summarised, at paragraph 52, as follows:
‘In my assessment the fundamental principles to be derived from these cases and to be applied by tribunals where credibility is in issue may be summarised as follows: (1) there is no formal requirement that a claimant's evidence be corroborated – but, although it is not a prerequisite, corroborative evidence may well reinforce the claimant's evidence; (2) equally, there is no obligation on a tribunal simply to accept a claimant's evidence as credible; (3) the decision on credibility is a decision for the tribunal in the exercise of its judgment, weighing and taking into account all relevant considerations (e.g. the person's reliability, the internal consistency of their account, its consistency with other evidence, its inherent plausibility, etc, whilst bearing in mind that the bare-faced liar may appear wholly consistent and the truthful witness's account may have gaps and discrepancies, not least due to forgetfulness or mental health problems); (4) subject to the requirements of natural justice, there is no obligation on a tribunal to put a finding as to credibility to a party for comment before reaching a decision; (5) having arrived at its decision, there is no universal obligation on tribunals to explain assessments of credibility in every instance; (6) there is, however, an obligation on a tribunal to give adequate reasons for its decision, which may, depending on the circumstances, include a brief explanation as to why a particular piece of evidence has not been accepted. As the Northern Ireland Tribunal of Commissioners explained in R 3/01(IB)(T), ultimately "the only rule is that the reasons for the decision must make the decision comprehensible to a reasonable person reading it". 
26.	In respect of potential entitlement to the lower rate of the mobility component of DLA, the appeal tribunal noted that the need for guidance and supervision had been raised by the appellant in her claim for to DLA and in her oral evidence.  The appeal tribunal observed that the appellant had contended that she was prone to falls but discounted that evidence as significant as there was no corroborative evidence in the appellant’s General Practitioner (GP) notes and records that the falls had caused injuries and noted, in any event, that the reported falls were few in number.

27.	The appeal tribunal also noted that the appellant was able to drive, albeit for short distances.  It made reference to the decision of Commissioner Brown in C22/05-06 (DLA), setting out what the Commissioner stated in paragraph 5 of that decision.  The appeal tribunal’s overall conclusions on entitlement to the lower rate of the mobility component were as follows:

‘The weight of the evidence in this appeal, diminished in probative value owing to the Appellant’s self-contradictory statements in respect of driving, convinced the Tribunal that the Appellant’s panic and anxiety disorder is not of such a scale as to prevent her from venturing out and driving from time to time.  In Tab 2.6, the Appellant is described as having a “full” insight of and awareness of danger.  Accordingly, the Tribunal formed the determination there was no sustainable probative evidence to satisfy it the Appellant came within the provisions of section 73(1)(d) of the 1992 Act on 21 June 2013.’

28.	In her written observations Mrs Hulbert has submitted that:

‘I find issue with the phrase “…venturing out and driving…”  In my view it is not clear from this sentence if the tribunal is referring to the two separate actions of venturing out of the house on foot and (my emphasis) driving or the singular action of leaving the house with the sole purpose of driving.  If the latter is how that sentence should be read then it appears that the tribunal only considered the action of driving and gave no consideration to the appellant’s ability or inability to walk on unfamiliar routes and as such has erred in law.  It is my view therefore that the tribunal has provided inadequate reasoning with regards to the lower rate mobility component and this has rendered the tribunal’s decision erroneous in law.’

29.	There is no doubt that the phrase ‘venturing out and driving’ might be interpreted in the two ways mooted by Mrs Hulbert.  In the context of the issue of potential entitlement to the lower rate of the mobility component it is, at the very least, clumsy.  Equally, and having perused the record of proceedings and the statement of reasons, I am not sure what the ‘self-contradictory statements in respect of driving’ referred to by the appeal tribunal actually are.  In connection with the appellant’s credibility, the appeal tribunal has made reference to inconsistencies between a submission made by the appellant’s representative concerning the appellant’s inability to use a mobility aid and her own evidence that she could walk around a supermarket leaning on a trolley.  To that the appeal tribunal added that the appellant could drive short distances.  I do not see how this amounts to a self-contradictory statement in respect of driving.  

30.	In C50/10-11(DLA), I cited paragraphs 77 to 78 of my decision in C12/08-09 (DLA), as follows:

		28. In C12/08-09(DLA), I said the following, at paragraphs 77 to 78:

	77.	Additionally, the ability to drive, even on familiar routes, is evidence of clear headedness and competency which is relevant to the ability to walk on unfamiliar routes without guidance and supervision.  In R1-07(DLA), at paragraph 9, Mrs Commissioner Brown stated that:

	‘I consider the Department’s submission to be correct in that the tribunal concluded that the ability to plan a journey, drive a car and therefore react to road conditions was indicative of clear headedness and competency.  Such clear headedness and competency is a matter which is obviously relevant to the ability to walk on unfamiliar routes without guidance or supervision.  I consider the Department to be correct that it was the possession of those abilities upon which the tribunal relied, not the claimant’s ability to use familiar routes.  When driving no matter whether a route is familiar or not there can be varying traffic conditions, emergency situations, pedestrians etc.  The ability to drive even on familiar routes is evidence of clear headedness and competency.  It is quite obvious from the tribunal’s findings, where it specifically referred to the ability to walk on unfamiliar routes, that it has not misinterpreted the test for the lower rate of the mobility component.  It has merely used the evidence of driving as showing clear headedness and competency indicative of ability to walk unsupervised and unaccompanied.’

		78.	Once again, therefore, the ability to drive on familiar routes, such as to and from the place of employment, can and should be taken into account in assessing the ability to walk without guidance or supervision.’

31.	Mr Commissioner Mesher (as he then was) endorsed the reasoning of Mrs Commissioner Brown in R1/07 (DLA) in CDLA/3484/2007. Nonetheless, he added that each case would turn on its own particular facts or circumstances.  His comments, in paragraph 9 of his decision, that there may be cases where psychological problems such as anxiety or depression may mean that a claimant will feel safe and secure in a car but not when walking, are of significance.  The decision of Mrs Commissioner Brown was also endorsed by Upper Tribunal Judge Wikeley in CDLA/722/2012 but he also noted the further reasoning of Mr Commissioner Mesher in CDLA/3484/2007.  In that case the judge concluded, in paragraph 24:

‘24.	In those circumstances I take the view that the FTT’s findings of fact and reasons as set out in paragraph 20 above are simply not adequate and amount to a further error of law.  The FTT needed to make more specific findings of fact about e.g. the effect of the appellant’s learning difficulties, his literacy problems, his ability to ask strangers for and understand directions, his ability use a mobile telephone, etc.  The question of the use of different types of evidence in relation to familiar and unfamiliar routes is the subject of some very helpful guidance by Mrs Commissioner Parker in reported decision R(DLA) 2/08 (at paragraphs 11-15).’

32.	I would also refer to my own comments in paragraph 24 of C50/10-11(DLA):

‘It is, in my view, a leap too far from the principle that an ability to drive on familiar routes can and should be taken into account in assessing the ability to walk without guidance or supervision to the direct assertion, in the instant case, that an ability to drive necessarily means that an individual does not require guidance and/or supervision while walking outdoors on routes which are not familiar.’

33.	In the case which is presently before me, and whether or not the appeal tribunal meant by ‘venturing out’, walking out of doors, there is a strong emphasis in the statement of reasons for the appeal tribunal’s decision, and in connection with its reasoning as to whether the conditions of entitlement to the lower rate of the mobility component of DLA were satisfied, on the appellant’s ability to drive.  Her ability to drive had to be assessed in the context of the other evidence which was before the appeal tribunal. In that respect, I note that Mrs Hulbert summarised that evidence as follows:

‘In her self- assessment form (the appellant) advised that she needed guidance or supervision when walking outdoors in unfamiliar places to avoid danger, to make sure she is safe and because she would have anxiety or panic attacks.  She states she has lost all confidence in her ability to cope outdoors and indoors and feels vulnerable and frustrated because her mobility is so limited; she also states she has no control over her bladder which can be very embarrassing so she rarely leaves her home.

Within the GP’s factual report (Dr C) confirms (the appellant) suffers with shortness of breath on light exertion and with regards to walking outdoors the only comments are that she would be short of breath on hills and unable to keep up with people if walking as part of a group. (Dr C) has also confirmed the diagnosis of bladder incontinence. 

(The appellant’s) representative prepared a submission on her behalf and at paragraphs 8 and 9 thereof stated;

“8. (The appellant) is also very nervous and panicky when outdoors because of her condition and requires someone to accompany her for guidance and supervision. She will go to her local shop, but no further. Friends that she used to socialise with often invite her for dinner or coffee, but she cannot bring herself to attend.  Her daughter has booked a holiday for (the appellant), but she is dreading the thought of it and is trying to think of an excuse to avoid going.

9. Her breathing difficulties also bring on coughing spasms and dizziness requiring assistance and her incontinence issues mean that she has no control of her bladder. ”

(The appellant) attended the hearing but made no specific reference to needing guidance or supervision outdoors in unfamiliar places.  She stated how her conditions affected her mobility when walking outside and that she was able to drive; she could only drive short distances and would not drive if she felt unsafe.’

34.	The appellant’s evidence was that her driving was for short distances only and was undertaken on routes which were familiar to her.  Further, and much more significantly, there was other evidence which was supportive of a requirement for guidance or supervision while walking out of doors on routes which were not familiar to her.

35.	I am of the view that the appeal tribunal could and should have gone further in its analysis as to why it did not accept that the appellant did not have a reasonable requirement for guidance and supervision while walking out of doors on routes which were not familiar to her.  Although marginal, it is for this reason that I have concluded that its decision is in error of law.

	Disposal

36.	The decision of the appeal tribunal dated 27 May 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. 

37.	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 26 February 2014, which decided that the appellant did not satisfy the conditions of entitlement to DLA from and including 18 November 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

24 November 2016