JT-v-Department for Communities (DLA) [2017] NICom 30

Decision No:  C35/16-17(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 9 November 2015

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 9 November 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 his 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 26 January 2015 a decision maker of the Department decided that the appellant was entitled to the lowest rate of the care component of DLA from and including 16 April 2015.  Following a request for a reconsideration and an appeal against the decision of 26 January 2015, on 27 February 2015 the decision dated 26 January 2015 was reconsidered and was revised.  The revised decision was that the appellant was not entitled to either component of DLA from and including 16 April 2015.

6.	A request for a reconsideration of the decision dated 27 February 2015 was made on 20 April 2015.  Correspondence from the appellant’s General Practitioner (GP) was received in the Department on 23 April 2015 together with an appeal against the decision of 26 January 2015, as revised on 27 February 2015.  On 28 April 2015 the decision of 26 January 2015 as revised on 27 February 2015 was reconsidered but was not changed.

7.	The appeal was first listed for oral hearing on 1 September 2015 but was adjourned.  The substantive appeal tribunal hearing took place on 9 November 2015.  The appellant was not present.  There was no departmental Presenting Officer present.  The appeal tribunal disallowed the appeal and confirmed the Departmental decision of 26 January 2015, as revised on 27 February 2015.

8.	On 16 November 2015 e-mail correspondence was received in the Appeals Service (TAS) from the appellant in which he made a request for the decision of the appeal tribunal dated 9 November 2015 to be set aside.  On 7 January 2016 the application to have the decision of the appeal tribunal set aside was refused by the Legally Qualified Panel Member (LQPM).

9.	By way of e-mail correspondence dated 22 March 2016 the appellant made an application for leave to appeal to the Social Security Commissioner.  On 25 April 2016 the application for leave to appeal was refused by the LQPM.

	Proceedings before the Social Security Commissioner

10.	On 21 June 2016 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 1 July 2016 observations on the application for leave to appeal were requested from Decision Making Services (‘DMS’).  In written observations dated 29 July 2016, Ms Adams, for DMS supported the application for leave to appeal.  Written observations were shared with the appellant on 1 August 2016.  On 3 October 2016 written observations in reply were received from Ms Rogers of the Law Centre (Northern Ireland) who was now representing the appellant.

11.	On 6 December 2016 I accepted the late application for special reasons.  On 23 March 2017 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 failed to take into consideration evidence submitted by the appellant to be relevant to the issues arising in the appeal.

	Errors of law

12.	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?

13.	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.”

	The error of law in the instant case

14.	In her detailed written observations on the application for leave to appeal, Ms Adams has made the following submissions:

‘At paragraph 5 of the record of proceedings the tribunal set out at length information on all the appellant’s medical conditions, including the medication he is taking for these conditions.  It refers in length to GP and physiotherapist records, noting an x-ray carried out in November 2012 showed “minor degenrative changes” and that the appellant had a knee joint injection in June 2013 and he has been helped by physiotherapy and using a Tens machine.  It further refers to (the appellant’s) treatment for Seminoma and his claim that he suffers from P.T.S.D. related to the Troubles.  It notes that he was referred to the Psychological Therapies Service for assessment on this but no formal diagnosis has been made.  The tribunal has evidently made itself aware of (the appellant’s) medical conditions; however, its main role was to determine his needs arising out of those medical conditions in order to assess entitlement to the benefit.  The tribunal was of the opinion that it had sufficient evidence before in which to proceed and done so accordingly.

In respect of the appellant’s request to adjourn the hearing, in the record of proceedings, the tribunal note (the appellant) advised The Appeal Service (TAS) that he had returned form Reg 2(1)d in June 2015 to confirm he wanted a paper hearing, however, TAS did not receive this and in July 2015 the legally qualified panel member directed there should be an oral hearing and that that the appellant had consented to the release of his medical records.  This was listed for 1 September 2015.  The tribunal decided to adjourn the hearing as no medical evidence had been received and it was re-scheduled for 9 November 2015.  (The appellant) sent an e-mail to TAS to advise he could not attend due to a hospital appointment but specifically requested that the hearing proceed on this date to avoid any further delays, despite any forthcoming appointments he had.  The tribunal were of the opinion that it had sufficient information by way of the appeal documents and medical records in which to continue with the appeal and this combined with (the appellant’s) request to proceed with the appeal without any delay proceeded to determine the appeal.  Whilst the tribunal may have had enough information in which to determine this appeal, there is a potential error in that (the appellant) had asked that consideration be given to evidence relating to his ESA appeal and also a claim relating to his JSA (tabs 1 and 1A of scheduled documents) and the tribunal has not dealt with this issue.  Whilst the entitlement conditions are different for each of these benefits the evidence that (the appellant) sought to be considered may have assisted his appeal and as he raised this issue on appeal the tribunal were duty bound to consider and address this issue, either by stating that it would have no bearing on the appeal or by requesting sight of the evidence.  In not dealing with the issue it is my submission that the tribunal has failed in its inquisitorial role and as such has erred in law.  Furthermore it is also arguable there would have been a reasonable expectation on (the appellant’s) behalf that this evidence would have been considered by the tribunal and that he has not received a just and fair hearing.’

15.	In her written observations in reply Ms Rogers has submitted:

‘(The appellant) obviously felt that his award of ESA information or evidence held by ESA was relevant to the DLA appeal tribunal and his claimed care and mobility needs.  In addition he felt that evidence held by J.S.A. supported his claimed needs arising from P.T.S.D.

I would submit that the Tribunal have failed to deal with this issue, one which (the appellant) believed important.  They had a duty to consider and offer a decision on whether or not to grant an adjournment and provide their reasons for their decision and by failing to do so have committed a material error of law.

…

In addition each of these pieces of correspondence were penned and received by the Tribunal in advance of the hearing. (The appellant) was under the belief that this evidence would therefore be before the tribunal when he consented to the tribunal proceeding by way of a paper hearing.  He was unaware that this evidence would not be before the tribunal and it is therefore arguable that his consent was limited in the circumstances which heightens the duty of the tribunal to consider adjourning.’

16.	It is clear from the statement of reasons for the appeal tribunal’s decision that the appeal tribunal did not address the Employment and Support Allowance (ESA) or Jobseekers Allowance (JSA) evidence.  Although I cannot be sure, I am of the view that the omission to do so was inadvertent and was caused, in part, by the history of adjournment and variety of response from the appellant in connection with the hearing issue.  I have considered whether the appeal tribunal did address the ESA/JSA evidence as part of its deliberations and dismissed the evidence as not being relevant to the issues arising in the appeal.  Even if it did it was obliged to set that out in its statement of reasons.  The appeal proceeded in the absence of the appellant and at his request.  In those circumstances I am satisfied that the appellant would have had a reasonable expectation that the appeal tribunal had before it and did consider evidence which he submitted was relevant to the issues arising in the appeal.  I conclude, therefore, that the decision of the appeal tribunal is in error of law but repeat that I am satisfied that the oversight by the appeal tribunal was unintentional.

	Disposal

17.	The decision of the appeal tribunal dated 9 November 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.

18.	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 January 2015 as revised on 27 February 2015 and which decided that the appellant was not entitled to DLA from and including 16 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)	the appeal is to be listed as an oral hearing and the appellant should give serious consideration to attending the appeal tribunal hearing and to continue to be represented;

	(iv)	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.  The appellant is to ensure that the appeal tribunal is provided with whatever evidence he deems to be relevant to the issues arising in the appeal; and

	(v)	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

1 June 2017