PO’N-v-Department for Communities (DLA) [2017] NICom 33

Decision No:  C50/17-18(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Application by the claimant for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 11 April 2016

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is a claimant’s application for leave to appeal from the decision of an appeal tribunal sitting at Craigavon.

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

REASONS

	Background

3.	It appears that the applicant claimed disability living allowance (DLA) from the Department for Social Development (the Department) in 2012 and was then awarded low rate mobility component and middle rate care component.  It appears that he was awarded low rate mobility component and middle rate care component on a renewal claim from 30 September 2013 to 29 September 2015.  It then appears that, having failed to return a renewal claim which had been issued to him in the time prescribed, a fresh claim was made by the applicant from 30 September 2015 on the basis of needs arising from depression and bipolar disorder.  The Department obtained a report from the applicant’s general practitioner (GP) on 4 November 2015.  On 9 November 2015 the Department decided on the basis of all the evidence that the applicant did not satisfy the conditions of entitlement to DLA from and including 30 September 2015.  The applicant appealed.

4.	The appeal was considered by a tribunal consisting of a legally qualified member (LQM), a medically qualified member and a disability qualified member.  After a hearing on 11 April 2016 the tribunal disallowed the appeal.  The applicant then requested a statement of reasons for the tribunal’s decision and this was issued on 4 August 2016.  The applicant applied to the LQM for leave to appeal from the decision of the appeal tribunal but leave to appeal was refused by a determination issued to the applicant’s representative on 3 September 2016 and to the applicant and the Department apparently on 3 October 2016.  On 28 October 2016 the applicant applied to a Social Security Commissioner for leave to appeal.

5.	The Department was renamed the Department for Communities from 8 May 2016.

	Grounds

6.	The applicant submits that the tribunal has erred in law on the basis that:

	(a)	it had failed to observe the requirements of Article 13(8)(b) of the Social Security (NI) Order 1998 and had taken post-decision circumstances into account;

	(b)	it had failed to provide an adequate statement of reasons for its decision;

	(c)	it had made an irrational decision.

7.	The Department was invited to make observations on the applicant’s grounds.  Mr Donnelly of Decision Making Services (DMS) responded on behalf of the Department.  Mr Donnelly submitted that the tribunal had not erred in law as alleged and indicated that the Department did not support the application.

	The tribunal’s decision

8.	The LQM of the tribunal prepared a statement of reasons for its decision.  From this I can see that the tribunal had documentary material before it consisting of the Department’s submission, a doctor’s questionnaire dated 15 March 2016, an IB113 dated 26 June 2013 with attached documents, an ESA85A form dated 11 August 2015 and the applicant’s medical records.  The applicant attended the hearing and was represented.

9.	The tribunal noted that the applicant’s GP listed his conditions as asthma and depression.  He was reported as having had psychotic episodes in 2012.  The tribunal noted the applicant’s medical management and medical history and his GP’s evidence, and found that he did not require guidance or supervision out of doors most of the time.

10.	The tribunal found the applicant’s evidence to be conflicting, difficult to understand and unreliable.  While it accepted that he had a major mental health issue in 2012, it found that he was not so severely disabled physically or mentally that he could not attend to his own bodily functions day and night.  While it found that some supervision of medication might be reasonable, it did not accept that this would amount to significant attention or frequent attention.  It further found that the applicant was not so lacking in motivation that he could not prepare a cooked main meal.

	Relevant Legislation

11.	The legislative basis of the care component is found at section 72 of the Social Security Contributions and Benefits (NI) Act 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.

	(2) Subject to the following provisions of this section, a person shall not be entitled to the care component of a disability living allowance unless—

		(a)	throughout—

			(i) period of 3 months immediately preceding the date on which the award of that component would begin; or

			(ii) the such other period of 3 months as may be prescribed, he has satisfied or is likely to satisfy one or other of the conditions mentioned in subsection (1)(a) to (c) above; and

		(b)	he is likely to continue to satisfy one or other of those conditions throughout—

			(i) the period of 6 months beginning with that date; or

			(ii) (if his death is expected within the period of 6 months beginning with that date) the period so beginning and ending with his death.

12.	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.

	…

	Hearing

13.	I held an oral hearing of the application.  The applicant attended the hearing, represented by Mrs Carty of Law Centre (NI).  The Department was represented by Mr Donnelly of DMS.  I am grateful to the representatives for their assistance.

14.	Mrs Carty asked me to note that, whereas the applicant’s medical records had been before the tribunal, these were not before me in the present application, suggesting that this impeded my role in determining the application.  However, no ground of application appearing to require consideration of the general content of the medical records had been raised.  In any event there was nothing to prevent Mrs Carty obtaining and placing the applicant’s medical records before me, if she felt that these were likely to be of assistance.

15.	The applicant, firstly, relied on the ground that the tribunal placed weight on specific post-decision evidence in the medical records, referring to an extract from the GP notes dated March 2016 and from a Health Care Plan dated April 2016, whereas the decision under appeal was made on 9 November 2015.

16.	The extracts from the medical records which referred to post-decision circumstances were to the effect that in March 2016 the applicant stated to the GP that he would help his brother on the farm, and that in April 2016, in the Health Care Plan, it was stated that, while “a bit low”, he was able to manage his own cooking and cleaning, and again that he would help his brother on the farm.

17.	Mr Donnelly acknowledged that the entries in the medical records which I have referred to post-dated the decision under appeal.  However, he submitted that the tribunal had not placed great stock in them.  He submitted that no weight was placed on the extract concerning farm work, although it had been mentioned twice by the tribunal.  He submitted that the tribunal had questioned the applicant as would be expected.  He submitted that it had not placed significant reliance on post decision evidence in the context of the overall evidence in the case.

18.	Mrs Carty further submitted that the tribunal had given inadequate reasons for finding that the applicant’s care and mobility needs had reduced since he was awarded DLA previously.  She has not made explicit reference to the case of Quinn v Department for Social Development [2004] NICA 22, but this requires a tribunal to explain why it is not renewing a previous award unless it is obvious from its findings.  Mr Donnelly submitted that the tribunal had explained its decision adequately.

19.	Mrs Carty further submitted that the tribunal had made an irrational decision in respect of one particular finding.  However, Mr Donnelly disputed this, submitting that the tribunal had made reasonable findings.

	Assessment

20.	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.

21.	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.

22.	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.

23.	The applicant, as indicated, relied on the ground that the tribunal placed weight on post-decision evidence in the medical records.  By article 13(8)(b) of the Social Security (NI) Order 1998 a tribunal is precluded from having regard to circumstances not obtaining at the date of the decision under appeal.

24.	I accept that the tribunal placed reliance on post-decision evidence.  However, the tribunal, in reaching its decision, also placed weight on the applicant’s medical management, his medical history, evidence from his GP and his own oral evidence to the tribunal.  There is therefore some force in Mr Donnelly’s submission that this was not material to the outcome of the appeal.

25.	Among the evidence, the applicant’s GP had said in a factual report that the applicant had good and bad days, but that he had more bad days than good.  She said that he lived alone and managed his own cooking.  However, in a later pro forma questionnaire she said that, as of 9 November 2015, he doesn’t cook due to lack of motivation and that he tended to live on carry-outs.  The applicant in evidence to the tribunal had said that he was not motivated to cook although he went to the local “chippy”.  In its contrary finding that the applicant was not so lacking in motivation that he could not prepare a cooked main meal, the tribunal expressly referred to the April 2016 Health Care Plan.

26.	It seems to me that, whereas the content of the Health Care Plan was one piece of evidence in the totality of evidence considered by the tribunal, it had a material impact on the tribunal’s conclusions in this case.  It is of course possible for a tribunal to rely on post-decision evidence and to state its view that the evidence equally applied to circumstances obtaining before the decision date.  However, the tribunal did not expressly state that the Health Care Plan was accepted as evidence of circumstances obtaining in November 2015.

27.	The applicant had a serious mental health crisis in 2012 with two detained admissions.  The evidence suggested that his condition had improved with the passage of time.  The tribunal clearly felt that the applicant’s needs had reduced accordingly.  However, in view of the conflict between the GP’s opinion regarding the applicant’s lack of motivation to cook in November 2015 and the April 2016 evidence, it cannot be said that the tribunal’s decision was not influenced by the post-decision evidence.

28.	I consider that Mrs Carty makes out an arguable case of error of law and I grant leave to appeal.  I allow the appeal and I set aside the decision of the appeal tribunal.  I direct that the appeal shall be determined by a newly constituted tribunal.

	Postscript

29.	The Department’s submission in this case was inadequate for a tribunal, or for me, to ascertain the previous claim and adjudication history.  In my judgment, it was deficient for that reason.  This lack of reference to the adjudication history is, in my experience, a change in practice by Departmental officers who prepare submissions for tribunals and is becoming increasingly common.  While the present case did not ultimately require consideration of the previous awards, as would be required by Quinn v Department for Social Development [2004] NICA 22, I anticipate that there will be cases where a Departmental submission, deficient in the respect I have highlighted, may lead a tribunal to err in law.

(signed):  O Stockman

Commissioner

6 July 2017