RMcNK-v-Department for Communities (DLA) [2017] NICom 10

Decision No:  C30/16-17(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 13 January 2016

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 13 January 2016 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 10 March 2006 an appeal tribunal decided that the appellant was entitled to the lower rate of the mobility component and the highest rate of the care component of DLA from and including 14 April 2005.  On 24 March 2015 correspondence was received from the appellant in which she made a request for a review of her existing award of entitlement to DLA.  On 7 May 2015 a decision-maker of the Department decided that there were no grounds to supersede the decision of the appeal tribunal dated 10 March 2006.  On 9 June 2015 the decision dated 7 May 2015 was reconsidered but was not changed.  An appeal against the decision dated 7 May 2015 was received in the Department on 3 June 2015.

6.	The appeal tribunal hearing took place on 13 January 2016.  The appellant was present, was accompanied by her husband and was represented.  There was no Departmental Presenting Officer present. The appeal tribunal disallowed the appeal and issued decision notices to the following effect:

‘Appeal Disallowed

From and including the 7/5/15 the appellant satisfies the criteria for the award of the low rate of the care component of the care component of DLA (main meal).

The entitlement to the high rate of the care component of DLA is removed from 7/5/15

Appeal Disallowed

From and including the 7/5/15, the Appellant does not satisfy the criteria for the award of any of the rates of the mobility component of DLA.

The entitlement to the low rate of the mobility component of DLA is removed from the 7/5/15.’

7.	On 18 April 2016 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS).  On 3 May 2016 the application for leave to appeal was refused by the Legally Qualified Panel member (LQPM). 

	Proceedings before the Social Security Commissioner

8.	On 28 June 2016 a further application for leave to appeal was received in the office of the Social Security Commissioners.  On 30 June 2016 observations on the application for leave to appeal were requested from Decision Making Services (DMS).  In written observations dated 18 August 2016, Ms Adams, for DMS opposed the application on the grounds submitted by the appellant but supported the application on another identified grounds.  Written observations were shared with the appellant on 2 September 2016.  Written observations in reply were received from the appellant on 14 September 2016 which were shared with Ms Adams on the same date.

9.	On 31 October 2016 I directed that the application was not late. On 15 December 2016 I granted leave to appeal.  In granting leave to appeal I gave as a reason that an arguable issue arose as to whether the appeal tribunal had correctly applied the rules relating to supersession.  On the same date I directed that 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.	A Tribunal of Commissioners in Great Britain, in R(IB) 2/04, undertook an extensive analysis of the legislative provisions relating to decision-making and appeals.  In Great Britain these provisions are the Social Security Act 1998 and the Social Security and Child Support (Decisions and Appeals) Regulations 1999, both as amended. In Northern Ireland these provisions are the Social Security (Northern Ireland) Order 1998 and the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, both as amended.  To all intents and purposes, the legislative provisions with respect to decision making and appeals in Great Britain and Northern Ireland are identical. 

13.	At paragraph 73, of R(IB) 2/04, in discussing the appeal tribunal’s powers with respect to supersession decisions:

‘… it follows from our reasoning … that the appeal tribunal has jurisdiction, on appeal, to decide whether the outcome arrived at by that decision (i.e. either to change or not to change the original decision) was correct.  This will or may involve deciding (a) whether one of the statutory supersession grounds (whether the one relied upon by the decision-maker or not) applied and (b) if so whether the original decision ought to be changed.’

14.	The grounds upon which a decision can be superseded are to be found in regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, the ‘1999 Regulations’.  As was noted by the Tribunal of Commissioners in R(IB) 2/04, at paragraph 10, in considering the Great Britain equivalent regulation to Regulation 6, there can be no supersession under unless one of the grounds for supersession specified in Regulation 6 was actually found to exist, and the ground which was found to exist must have formed the basis of the supersession in the sense that the original decision could only be altered in a way which followed from that ground.

15.	As was noted above, the decision under appeal to the appeal tribunal, in the present case, was a decision dated 7 May 2015 in which a decision maker of the Department decided that there were no grounds to supersede the decision of the appeal tribunal dated 10 March 2006.  The appeal tribunal, on 10 March 2006, had decided that the appellant was entitled to the lower rate of the mobility component and the highest rate of the care component of DLA from and including 14 April 2005.
 
16.	Accordingly, the first task of the appeal tribunal was to determine whether the decision-maker, on 7 May 2015, had grounds to supersede the earlier decision of the appeal tribunal, dated 10 March 2006.

17.	If the appeal tribunal determined that the decision-maker, on 7 May 2015, did not have grounds to supersede the decision of the appeal tribunal dated 10 March 2006, then that latter decision would continue to have effect.

18.	If the appeal tribunal determined that the decision-maker, on 7 May 2015, did have grounds to supersede the decision of the appeal tribunal dated 10 March 2006, then the appeal tribunal could have gone on to consider entitlement to benefit, in light of the substantive rules for entitlement to DLA. 

19.	Finally, the appeal tribunal was under a duty to determine the effective date from which any supersession decision should take effect.

20.	The statement of reasons for the appeal tribunal’s decision is detailed and a great deal of care has clearly been put into its production and drafting.  The problem is that the statement of reasons for the appeal tribunal’s decision does not deal with the issue of supersession.  Indeed, in the statement of reasons there is no mention of the issue of supersession at all.  The greater part of the statement of reasons is taken up with an assessment, albeit a careful and considered assessment, of the evidence available to the appeal tribunal, particularly in relation to the appellant’s general practitioner (GP) records and her own oral evidence.

21.	I have noted that in the statement of reasons for its decision with respect to the care component the appeal tribunal has noted that: 

‘The Tribunal believe that her condition had improved since the last award of the High Rate Care Component on 10 March 2006.’

22.	It is arguable that hiding behind this statement is a conclusion by the appeal tribunal that there had been a relevant change of circumstances since the date of the decision making the award of entitlement to the highest rate of the care component of DLA.  The supersession ground was, therefore, that to be found in regulation 6(2)(a)(i) of the 1999 Regulations.  

23.	In C12/08-09(DLA), I indicated, at paragraphs 48 and 52:

‘48.	The appeal tribunal was under a specific duty to determine whether the decision under appeal was correct.  As that decision was a supersession decision the duty was to determine whether there were grounds to supersede under regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.

	…

52.	The appeal tribunal’s duty is not only to consider the supersession issue, including grounds, entitlement and effective date, but to make clear that it has done so. It is not sufficient for it to be, as DMS suggests, implicit from the appeal tribunal’s documentation that the supersession issue was addressed.  That consideration must be explicit from the decision notice, the statement of reasons or a combination of both.  In the present case, I am of the view that it is not even implicit that consideration was given to the supersession issue.’

24.	It is important to note that the overall decision of the appeal tribunal was to reduce the appellant’s entitlement to the care component of DLA from the highest rate to the lowest rate and to remove altogether the entitlement to the mobility component of DLA.  That is a significant decision for the appellant.  In my view, that appellant was entitled to know the legal and evidential basis upon which the appeal tribunal had concluded that something had changed, justifying a conclusion that there were grounds to supersede the earlier decision of the appeal tribunal. The appeal tribunal has undertaken a thorough analysis of the evidence available to it in the context of the conditions of entitlement to DLA but has failed to make explicit its determination, findings and conclusions on the supersession issue.      

25.	Further, the appeal tribunal, having found that there had been a relevant change of circumstances, was under a duty to determine the effective date from which any supersession decision should take effect.  Accordingly, the appeal tribunal was required to explain why the identified change and, by implication, the supersession took effect from an identified date.  In the present case, the appeal tribunal failed to explain why it had adopted the dates relevant to its decision.  Accordingly, even if the appeal tribunal was not in error by failing to address the issue of whether the decision-maker had grounds to supersede, it was also in error in failing to identify the effective date from which any supersession should take effect.

26.	It is with a great deal of reluctance that I am setting aside the decision of the appeal tribunal given its judicious consideration of the evidential issues arising in the appeal and its carefully prepared statement of reasons.  That statement of reasons omits, however, an analysis of the most fundamental aspect of the rationale for the appeal tribunal’s overall decision.  

	Disposal

27.	The decision of the appeal tribunal dated 13 January 2016 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. 

28.	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 7 May 2015 in which a decision maker of the Department decided that there were no grounds to supersede the decision of the appeal tribunal dated 10 March 2006.  The appeal tribunal, on 10 March 2006, had decided that the appellant was entitled to the lower rate of the mobility component and the highest rate of the care component of DLA from and including 14 April 2005;

		(ii) the appellant will wish to consider what was said at paragraph 77 of C15/08-09 (DLA) concerning the powers available to the appeal tribunal and the appellant’s options in relation to those powers;

		(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

13 February 2017