CS-v-Department for Communities (DLA) [2017] NICom 1

Decision No:  C1/16-17(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 January 2016

DECISION OF THE SOCIAL SECURITY COMMISSIONER

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

2.	For the reasons I give below, I allow the appeal.  I set aside the decision of the appeal tribunal under Article 15(8)(b) of the Social Security (NI) Order 1998 and I direct that the appeal shall be determined by a newly constituted tribunal. 

	REASONS

	Background

3.	The appellant claimed disability living allowance (DLA) from the Department for Social Development (the Department) from 16 May 2011 and was awarded the low rate mobility component and the middle rate care component for two years.  On a renewal claim she was awarded low rate mobility component and low rate care component from 16 May 2013 to 15 May 2015.  She made a renewal claim from 16 May 2015 on the basis of needs arising from depression, anxiety, sciatica, migraines and stress disorder.  The Department obtained a factual report from the appellant’s general practitioner (GP).  The Department also obtained a factual report from the appellant’s consultant psychiatrist.  The appellant was examined on behalf of the Department by an examining medical practitioner (EMP).  On 4 August 2015 the Department decided on the basis of all the evidence that the appellant did not satisfy the conditions of entitlement to DLA from and including 16 May 2015.  The appellant appealed.  However, she waived her right to an oral hearing of the appeal. 

4.	The appeal was considered on the papers by a tribunal consisting of a legally qualified member (LQM), a medically qualified member and a disability qualified member on 19 January 2016.  The tribunal disallowed the appeal.  The appellant then requested a statement of reasons for the tribunal’s decision and this was issued on 22 March 2016.  The appellant applied to the LQM for leave to appeal from the decision of the appeal tribunal and leave to appeal was granted by a determination issued on 22 April 2016.  The question of law on which leave was granted was whether the tribunal had followed a fair procedure in deciding the appeal without the GP notes.  On 26 April 2016 the appeal was lodged in the Office of the Social Security Commissioners. 
	
	Grounds

5.	The grounds of appeal submit that the tribunal has erred in law on the basis that her GP records were not present at the appeal, despite her giving permission for this and paying a fee for their release. 

6.	The Department was directed to make observations on the appellant’s grounds. Mr Donnelly of Decision Making Services (DMS) responded on behalf of the Department.  He initially submitted that the tribunal had not erred in law as alleged and indicated that the Department did not support the appeal. 

	The tribunal’s decision

7.	The tribunal had noted that the applicant felt unable to attend a hearing and that she had consented to the release of her medical records.  The medical records were not received by the tribunal.  The tribunal had before it a Departmental submission which included a GP factual report, a psychiatrist’s factual report and an EMP report.  It considered whether it would be unfair to proceed without the medical records and decided that it would not. 

8.	The tribunal considered the evidence and accepted that the applicant had a high dose of medication for depression and a standard dosage for anxiety.  It noted that the psychiatrist indicated that help was not needed by the applicant to get around in familiar or unfamiliar surroundings, and that the EMP noted that the applicant coped well at examination with no evidence of severe anxiety.  It decided that the applicant was not entitled to the mobility component. 

9.	The tribunal considered that there was no evidence of a requirement for supervision at any time or for attention at night.  It accepted that at times she would need encouragement to get up and to wash and dress, but that this was not reasonably required for a significant portion of the day most of the time.  It noted the evidence that she was well-kempt and well-nourished and that there was no history of self-neglect.  It was satisfied on the evidence that she had motivation to prepare a cooked main meal for one person.  Accordingly, it disallowed the appeal. 

	Relevant legislation

10.	The legislative basis of the care component is found at section 72 of the Social Security Contributions and Benefits Act (NI) 1992.  This provides:

		72. —	(1) Subject to the provisions of this Act, a person shall be entitled to the care component of a disability living allowance for any period throughout which—

			(a) he is so severely disabled physically or mentally that—

		(i) he requires in connection with his bodily functions attention from another person for a significant portion of the day (whether during a single period or a number of periods); or

	(ii) he cannot prepare a cooked main meal for himself if he has the ingredients;

	(b) he is so severely disabled physically or mentally that, by day, he requires from another person—

	(i) frequent attention throughout the day in connection with his bodily functions; or

	(ii) continual supervision throughout the day in order to avoid substantial danger to himself or others; or

	(c) he is so severely disabled physically or mentally that, at night,—

	(i) he requires from another person prolonged or repeated attention in connection with his bodily functions; or

	(ii) in order to avoid substantial danger to himself or others he requires another person to be awake for a prolonged period or at frequent intervals for the purpose of watching over him.

	The legislative basis of the mobility component is section 73 of the same Act. This provides:

73.—	(1) Subject to the provisions of this Act, a person shall be entitled to the mobility component of a disability living allowance for any period in which he is over the relevant age and throughout which—

			(a) he is suffering from physical disablement such that he is either unable to walk or virtually unable to do so;

	(ab) he falls within subsection (2) below;

	(b) he does not fall within that subsection but does fall within subsection (2) below;

	(c) he falls within subsection (3) below; or

	(d) he is able to walk but is so severely disabled physically or mentally that, disregarding any ability he may have to use routes which are familiar to him on his own, he cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time.

11.	The definition of the virtually unable to walk condition is expanded in regulation 12 of the Social Security (Disability Living Allowance) Regulations (NI) 1992 (the DLA Regulations). This provides:

Entitlement to the mobility component

12. —	(1) A person is to be taken to satisfy the conditions mentioned in section 73(1)(a) (unable or virtually unable to walk) only in the following circumstances—

		(a) his physical condition as a whole is such that, without having regard to circumstances peculiar to that person as to place of residence or as to place of, or nature of, employment—

	(i) he is unable to walk,

	(ii) his ability to walk out of doors is so limited, as regards the distance over which or the speed at which or the length of time for which or the manner in which he can make progress on foot without severe discomfort, that he is virtually unable to walk, or

	(iii) the exertion required to walk would constitute a danger to his life or would be likely to lead to a serious deterioration in his health; …

	Submissions

12.	In the light of the Department’s initial assessment of the appeal, namely, that it opposed the appeal, I directed an oral hearing.  The applicant had written to indicate that she felt unable to attend a hearing.  The Department was to be represented by Mr Donnelly of DMS. 

13.	Shortly before the hearing, Mr Donnelly wrote to resile from his original position.  The Department had initially taken the view that it was not unfair to proceed in the absence of GP records.  This was because the tribunal had other relevant evidence in the form of a psychiatrist’s report and a report of an EMP.  He submitted that this was adequate evidence on which to determine the appeal. 

14.	However, in the light of the statement by the appellant that she had paid a fee for the release of her GP records, the Department modified its submissions.  Mr Donnelly submitted that, in the light of that fact, she would have had a legitimate expectation that her GP records would have been sent to the tribunal and considered by it.  He submitted that the fact that the tribunal did not have this material would have “breached the fairness of the proceedings”. 

	Assessment

15.	An appeal lies to a Commissioner from any decision of an appeal tribunal on the ground that the decision of the tribunal was erroneous in point of law. However, the party who wishes to bring an appeal must first obtain leave to appeal. 

16.	Leave to appeal is a filter mechanism. It ensures that only applicants who establish an arguable case that the appeal tribunal has erred in law can appeal to the Commissioner. 

17.	An error of law might be that the appeal tribunal has misinterpreted the law and wrongly applied the law to the facts of the individual case, or that the appeal tribunal has acted in a way which is procedurally unfair, or that the appeal tribunal has made a decision on all the evidence which no reasonable appeal tribunal could reach. 

18.	In the present appeal, the appellant had indicated that she wished for the appeal to proceed in her absence as a “paper hearing”.  Against that background, she consented to the release of her medical records to the tribunal.  The tribunal records that the medical records had not been received by the tribunal and that “they had been requested and a reminder issued to the appellant”. In the light of the fact that the tribunal had an EMP report and a psychiatrist’s report, it decided to proceed. 

19.	Mr Donnelly noted that the appellant had paid a fee to her GP in order for her records to be released to the tribunal.  Against this background, having paid for their release, he submits that the appellant would have a legitimate expectation that the records would have been before the tribunal and considered by the tribunal. 

20.	The concept of legitimate expectation is a sub-set of procedural fairness. I accept the submission that, having consented to the release of her medical records in the context of having paid for their release, the appellant would legitimately have expected her GP to send these to the tribunal.  Equally, she would have legitimately expected the tribunal to have seen the medical records before reaching its decision.  She was not present at the tribunal and therefore did not know that the records were not produced.  She was not in a position to request an adjournment of the hearing to ensure that the records could be seen and considered. 

21.	In HD v Department for Social Development [2011] NI Com 169, an industrial injuries case, Chief Commissioner Martin QC held that a tribunal which proceeded in ignorance that hospital records had been requested in an appeal had inadvertently erred in law.  This was because the tribunal had not given the appellant an opportunity to have relevant evidence from the medical records before the tribunal. 

22.	The present tribunal was made aware, by a previous reminder to her, that the tribunal did not have the medical records despite her consent.  It appears that she subsequently paid a fee to the GP for the release of her records and therefore expected that the tribunal would receive them in due course.  The tribunal did not receive them. 

23.	The tribunal, in the ordinary course of events, may have been entitled to consider whether to proceed with or without the medical records on the basis of the other evidence it held.  However, it does appear to me that there was a legitimate expectation on the part of the appellant in all the circumstances that her medical records would be before the tribunal. Their absence may not have materially altered the outcome of the appeal.  However, it cannot be said that their absence was not a factor capable of making a difference to the outcome, and therefore to the fairness of the proceedings. 

24.	I accept Mr Donnelly’s submission that the proceedings were unfair in all the circumstances of this case.  I consider that the tribunal has erred in law on grounds of procedural unfairness.  I set aside the decision of the appeal tribunal and I direct that the appeal shall be determined by a newly constituted tribunal. 

(signed) O Stockman

Commissioner

22 December 2016