MT-v-Department for Communities (DLA) [2017] NICom 12

Decision No:  C29/16-17(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 18 April 2016

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	As will be explained in greater detail below, both parties have expressed the view that the decision appealed against was erroneous in point of law.

2.	Accordingly, pursuant to the powers conferred on me by Article 15(7) of the Social Security (Northern Ireland) Order 1998, I allow the appeal, I set aside the decision appealed against and I refer the case to a differently constituted tribunal for determination.

3.	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), for a particular period, remains to be determined by another appeal tribunal. 

4.	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 29 October 2015, which decided that the appellant was not entitled to DLA from and including 11 December 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. 

	Background

5.	On 29 October 2015 a decision-maker of the Department decided that the appellant was not entitled to DLA from and including 11 December 2015 on the basis of a renewal claim to that benefit.  There had been a previous award of the lower rate of the mobility component and the highest rate of the care component of DLA from 11 December 2008 to 10 December 2015. 

6.	A request for a reconsideration of the decision dated 29 October 2015 was received in the Department on 6 November 2015.  Further correspondence in support of the reconsideration request was received on 20 November 2015.  On 25 November 2015 the decision dated 29 October 2015 was reconsidered but was not changed.  An appeal against the decision dated 29 October 2015 was received on 18 December 2015.  

7.	The appeal tribunal hearing took place on 18 April 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 confirmed the decision dated 29 October 2015.

8.	On 10 August 2016 an application for leave to appeal to the Social Security Commissioners was received in the Appeals Service (TAS).  The appellant was represented in the application by Ms Loughrey of the Law Centre (Northern Ireland).  On 15 August 2016 the application for leave to appeal was refused by the Legally Qualified Panel Member (LQPM). 

	Proceedings before the Social Security Commissioner

9.	On 12 September 2016 a further application for leave to appeal was received in the office of the Social Security Commissioners (OSSC).  On 28 September 2016 observations on the application for leave to appeal were requested from Decision Making Services (DMS).  In written observations dated 10 October 2016, Mr Hinton, for DMS, supported the application for leave to appeal on the grounds submitted on behalf of the appellant.  Written observations were shared with the appellant and Ms Loughrey of the Law Centre (NI) on 10 October 2016. Correspondence in reply was received from Ms Loughrey on 13 October 2016.

10.	On 15 December 2016 I granted leave to appeal. In granting leave to appeal, I gave, as a reason that an arguable issue had arisen as to whether the appeal tribunal had properly assessed the evidence which was before it.  On the same date I determined that an oral hearing of the appeal would not be required.

	Errors of law

11.	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?

12.	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

13.	In the application for leave to appeal, which was received in the OSSC, Ms Loughrey made the following submissions on behalf of the appellant:

‘We respectfully submit that the Tribunal has erred in that it has failed in its inquisitorial role when it decided (the appellant) did not qualify for the Middle Rate of the Care Component of DLA on the basis of her night time needs.

In the alternative (and if the Commissioner does not accept our submissions) we would further submit that the Tribunal has erred in that it has failed to explain how it viewed the letter dated 17 November 2015 from (the appellant’s) General Practitioner (GP).’

14.	Ms Loughrey expanded on those general grounds in some detail and I do not wish to pay her a disservice by not replicating that detail here. Her extended arguments were summarised by Mr Hinton in his written observations which were as follows: 

‘In the submission to the Commissioner (the appellant’s) representative from the Law Centre pointed to the contrasting information contained in the sources of evidence provided by Dr T.  The factual report dated 1 September 2015 stated that (the appellant) had reasonable diabetic control, her insulin was well managed and the clinical records did not show hypoglycaemic attacks.  However, Dr T’s correspondence dated 17 November 2015 stated that (the appellant) was having hypoglycaemic attacks almost every night of the week and a summary of her blood sugar readings showed low levels on 5 nights out of 7.  As she was unaware her sugar levels were low her husband had to supervise her most nights which involving wakening her and administering food and drink in order to correct these levels.  (The appellant’s) representative made the point that the tribunal should have investigated further why Dr T’s understanding of her needs differed on 17 November 2015 to that previously recorded (1 September 2015).  Therefore, to fully understand the extent of (the appellant’s) needs on 29 October 2015 when the disallowance decision came into effect, the tribunal should have given her the opportunity to state why she had not raised these increased needs previously. Consequently (the appellant’s) representative contended that the reliance on the GP factual report dated 1 September 2015 and the absence of references in her clinical references to disallow this aspect of her appeal rendered the tribunal’s decision erroneous in law.

In the record of proceedings (the appellant) provided the following evidence concerning her night needs with regards to her diabetic condition:

“... After going to bed and sleeping, after midnight, she seems to dream and shout.  She then has to be wakened up.  She then checks her blood sugar levels and takes a drink of Lucozade and husband may maker (sic) her tea and toast.

This would take between 3 and 4 hours about 5 nights per week.

If she starts talking and moving about in her sleep this is a sign that she is low.

She is not aware of this as she is sleeping but her husband is aware...”

With regards to (the appellant’s) night needs concerning her diabetic condition, the tribunal had two main sources of evidence to assess – the GP factual report completed by Dr T dated 1 September 2015 and a medical report dated 17 November 2015 provided by the same Practitioner, submitted by (the appellant) to the tribunal. As mentioned above, both these reports provided different information with regards to (the appellant’s) needs concerning her diabetes.  The GP factual report dated 1 September 2015 stated at page 6:

“Has reasonable diabetic control

Is able to manage her insulin

No record of hypos in clinical record”.

The later medical report also provided by Dr T painted a different picture and I reproduce the full report as follows:

“I am writing this report to state that it has become apparent that (the appellant) is having hypoglycaemic episodes almost every night of the week while she is asleep.

She has been able to show me a summary of her blood sugar readings which shows that her blood sugar is “low” on at least 5 nights out of 7.

She is unaware of her low sugar and requires to be supervised by her husband during the night who notes her disturbed behaviour and sweating [symptoms of low blood glucose] and who wakes her, tests her blood and arranges for her to drink Lucozade and eat toast to correct the low blood sugar level.

		I support her appeal for DLA on this basis”.

The tribunal in its reasoning made reference to both these reports. It made reference to the fact that the report dated 1 September did not record any details of hypoglycaemic attacks, neither did the clinical records.  It summarised the information contained within the report dated 17 November noting Dr T’s contention that (the appellant’s) hypoglycaemic attacks were occurring every night and that her husband had to waken her and administer assistance.  In assessing (the appellant’s) night time needs with regards to the aforementioned evidence before it the tribunal summarised as follows:

“... The Tribunal formed the view that on balance, the Appellant would have some night time hypos, from time to time but these were not on a regular basis.

... Furthermore the Tribunal did not believe that any attention she required at night was prolonged or repeated and she did not required (sic) another person to be awake for a prolonged period or at frequent intervals to watch over her to avoid substantial danger to herself or other (sic).  As previously indicated, the tribunal did accept from time to time she did have hypos at night but they did not occur certainly every night as alleged by the Appellant ...”

The tribunal in its final paragraph of its reasoning with regards to the care component stated it “did not believe that the criteria for the award of any of the rates of the Care Component had been satisfied”. Returning to the issue of night needs the tribunal concluded:

“... In addition at night she did not require prolonged or repeated attention from another person in connection with her bodily functions nor did she require another person to be awake for a prolonged period or at frequent intervals to watch over her to avoid substantial danger to herself or others.  The Tribunal has indicated, accepted that sometimes but not on a regular basis her husband was required to get up to waken her from her sleep to give her tea and toast and Lucozade which may have taken some time up to 45 minutes but generally took between 10 and 20 minutes on the occasions that were required.  The Tribunal did not believe that this was prolonged or repeated attention even on the nights it did happen and as previously indicated it decided that this did not happen every night ...”

I would contend the basis on which the tribunal has reached its conclusions regarding (the appellant’s) night time requirements gives me cause for concern.  (The appellant) stated in her self-assessment form that she had difficulty and needed help with taking medication 1-2 times per night and required this help for 10-15 minutes each time.  She stated that she needed this help 7 nights per week.  Dr T in her report dated 17 November stated that her blood sugar count was low on at least 5 nights out of 7 and as she was unaware of this low count because she was asleep, this necessitated a requirement for her husband to waken her and administer assistance.  Furthermore, Dr T produced this report based on a summary of blood sugar readings provided by (the appellant).  Consequently I fail to see how the tribunal could reach the conclusion that “on balance the Appellant would have some night time hypos, from time to time but these were not on a regular basis”.  If (the appellant’s) husband had to render assistance to her on at least 5 nights out of 7 this would indicate to me that this assistance was being given on a regular basis.  Therefore, it is my contention the tribunal has not provided adequate reasons as to how it reached the conclusions it did.

…

It is true that the report produced by Dr T in November 2015 post-dated the decision under appeal by 2-3 weeks.  However, this does not necessarily lead to the conclusion that the information contained within it is cannot be taken into account in determining entitlement. It is not the date of the report that is relevant here – it is whether the information contained within it relates to the period under appeal.  To that end, I would contend the tribunal had a duty to explore in greater detail with (the appellant) the information contained within this report. Dr T’s original Factual Report dated 1 September 2015 stated that (the appellant’s) diabetic condition was well controlled; however the report produced in November indicated that her needs had changed.  Therefore, I would contend the tribunal should have clarified with (the appellant) the precise time her needs concerning her diabetic control changed. I would concur with (the appellant’s) representative that had the tribunal explored this issue with her in more detail it may have gained a better insight into why Dr T identified these increased needs.  It is my contention had the tribunal adopted this approach this would have led to it making a better balanced and informed decision.

Therefore, for the reasons stated above it is my contention that the tribunal failed in its inquisitorial role regarding its assessment of Dr T’s report dated 17 November 2015.  As a result its decision is erroneous in law.’

15.	It is clear, therefore, that both parties have expressed the view that the decision appealed against was erroneous in point of law.

16.	Accordingly, pursuant to the powers conferred on me by Article 15(7) of the Social Security (Northern Ireland) Order 1998, I allow the appeal, I set aside the decision appealed against and I refer the case to a differently constituted tribunal for determination.

17.	I would take the opportunity to remind appeal tribunals that the principles relating to evidence which post-dates the decision under appeal were set out by me in AR-v-Department for Social Development (IB) ([2010] NICom 06, C2/10-11(IB)).

(signed) K Mullan
Chief Commissioner

17 February 2017