GY-v-Department for Communities (DLA) [2017] NICom 40

Decision No:  C37/16-17(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 16 May 2016

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 16 May 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 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 7 October 2015 a decision maker of the Department decided that the appellant was not entitled to DLA from and including 22 July 2015.  A request for a reconsideration of that decision was received in the Department on 16 November 2015.  On 23 December 2015 the decision dated 7 October 2015 was reconsidered but was not changed.  An appeal against the decision dated 7 October 2015 was received on 10 February 2016.

6.	The appeal tribunal hearing took place on 16 May 2016. The appellant was present and was represented.  There was a Departmental Presenting Officer present.  The appeal tribunal disallowed the appeal and confirmed the decision dated 7 October 2015.

7.	On 1 September 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 Mrs Carty of the Law Centre (Northern Ireland).  On 13 October 2016 the application for leave to appeal was refused by the Legally Qualified Panel Member (LQPM). 

	Proceedings before the Social Security Commissioner

8.	On 17 November 2016 a further application for leave to appeal was received in the office of the Social Security Commissioners.  On 21 November 2016 observations on the application for leave to appeal were requested from Decision Making Services (DMS).  In written observations dated 8 December 2016, Mr Culbert, for DMS, supported the application for leave to appeal on one of the grounds submitted on behalf of the appellant.  Written observations were shared with the appellant and Mrs Carty on 8 December 2016.  Written observations in reply were received from Mrs Carty on 30 December 2016 and were shared with Mr Culbert on 4 January 2017.

9.	On 31 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 had properly applied the principles in JT v Secretary of State for Work and Pensions (DLA ([2012] UKUT 0221 (AAC)).  On the same date I determined 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.	In the application for leave to appeal, which was received in the Office of the Social Security Commissioners, Mrs Carty made the following submissions on behalf of the appellant:

‘The tribunal has erred in law in finding that (the appellant) is not entitled to an award of the higher rate of the mobility component of Disability Living Allowance in accordance with section 73(1)(a) and regulation 12 of the Social Security (Disability Living Allowance) Regulations (NI) 1992.

The tribunal has erred in its consideration of evidence, which was not within the qualifying period set out in section 73(9) of the Social Security Contributions and Benefits (NI) Act 1992.

The date of the decision under appeal was 7 October 2015.  The date of claim for the purposes of section 73(9) of the Social Security Contributions and Benefits (NI) Act 1992 was 22 July 2015.  The relevant qualifying period was 22 April to 22 July 2015.

Relevance of holidays to assessment of credibility

In the alternative it is submitted that the tribunal has erred in its assessment of the relevance of the Appellant's trip to Australia and has failed to carry out adequate enquiry to make findings of fact in relation to it.

I am attaching a copy of JT v SSWP 2013 UKUT 221 AC in which the tribunal was found to have erred in law. At para 8 the UT Judge referred to reliance on evidence of walking at airports as, "notoriously prone to difficulties."

At para 11 Judge Wright went on to indicate that the tribunal would need to consider the reasons why the journey was undertaken in the first place, something that this tribunal did not do.

It is submitted that the tribunal was not entitled to make a finding that a person with virtual inability to walk would not, "even contemplate such a journey."

The tribunal failed to give adequate weight to relevant considerations

The tribunal failed to give adequate weight to the fact that (the appellant) was put into Class III classification by the Heart Failure Clinic until 10.08.15.

The date of the decision under appeal was 7 October 2015.  (The appellant) was a patient of the Heart Failure Clinic since before the date of claim.  He made his claim for DLA from 22 July 2015 and stated that his next appointment was 10 August 2016.  At that appointment his condition was categorised as Level III.  As the appointment was 11 days after the date of claim it is submitted that the assessment carried out at that time is much more relevant than that carried out in January 2015.

The tribunal failed to deal with the fact that the evidence of the Heart Clinic suggested a clear deterioration between January and August 2015.  The tribunal erred in making relevant findings of fact in relation to when this deterioration took place.

In addition to the above grounds, the tribunal has erred in failing to set out an adequate statement of reasons for its decision.’

13.	The date of the ‘next appointment’ at the ‘Heart Failure Clinic’ referred to by Mrs Carty as 10 August 2016 should have been 10 August 2015.   

14.	In his written observations on the application for leave to appeal, Mr Culbert has made the following submissions in connection with the relevance of the appellant’s trip to Australia to his credibility:

‘Ms Carty cited GB Upper Tribunal decision JT v Secretary of State for Work and Pensions (DLA) [2013] UKUT 0221 AAC and referred to paragraph 8 where Upper Tribunal Judge Wright referred to the evidence of walking at airports as “notoriously prone to difficulties” and paragraph 11 where Judge Wright indicated that a tribunal would need to consider the reasons why a journey was undertaken in the first place.  Ms Carty then contends that this tribunal did not consider the reasons why the journey was under taken and that it was not entitled to make a finding that a person with a virtual inability to walk would not even contemplate such a journey.

In the tribunal’s record of proceedings it is stated:

“...He told us that he went to Australia in March 2015 and went everywhere in a wheelchair, he used wheelchairs in the airports which were especially arranged.”

The tribunal then went on to record in the reasons for decision:

“(e) With regard to his oral evidence, this was unacceptably vague ...... . He was evasive but did not tell us of walking about the street and going to Australia in March 2015.  He assured us he used a wheelchair in Australia.  We didn’t believe him. Furthermore we do not accept that someone who claims he can only walk 5 to 10 metres (DLA1) would even contemplate such a journey. ...”

It is clear from the above extract from the statement of reasons that the tribunal doubted (the appellant’s) credibility regarding his walking ability and this was clearly influenced by his visit to Australia.  However before coming to such views, and in line with the above case law, the tribunal should have made further investigations as to the reasons why (the appellant) undertook such a journey and in failing to do so the tribunal has erred in law.’

15.	In paragraphs 8 to 12 of his decision in JT v Secretary of State for Work and Pensions (DLA ([2012] UKUT 0221 (AAC)) (‘JT’), Upper Tribunal Judge Wright stated the following:

	‘Airports – Greek and otherwise  

8.	Reliance on a one-off trip abroad and the related “walking” at the airports on either side of the flight abroad as good evidence on the virtually inability to walk test under section 73(1) (a) of the Social Security Contributions and Benefits Act 1992 and regulation 12(1)(a)(ii) of the Social Security (Disability Living Allowance) Regulations 1991 is notoriously prone to difficulties.

9.	To start with, even if walking is done in an airport (as the tribunal found here), due allowance has to be made for the fact that this is walking indoors whereas the statutory test looks at walking outdoors, and consideration still has to be given to how far the person walked in the airport, how long that took him, whether he had any halts, and, crucially, how much of that walking was done without severe discomfort  (CDLA/3165/1998 at paragraph 12); and appropriate findings of fact have to be made (CDLA/331/2006 at paragraph 3).  No such analysis of the appellant’s walking in the Greek airport was carried out by the tribunal here, nor did it asses how far he walked (contrary to the appellant’s case) at Manchester airport.  As the Secretary of State’s representative helpfully points out, there are 15 international airports in Greece, but the tribunal here took no steps to identify which one the appellant flew to or how far he had to walk in that airport in order to get to passport control (or indeed what he did after he had passed passport control). These investigative failures and the resultant failure to make appropriate findings of fact mean the tribunal erred in law.

10.	In addition, there was evidence that the appellant had pain on walking (page 55) and some evidence of difficulties with pain management (bottom of record of proceedings on page 69 – Naproxen upset appellant and taken off Ibuprofen).  In these circumstances, I consider, first, that the tribunal ought to have investigated with the appellant why he was taken off Ibuprofen and when this occurred and said why, despite this evidence, it accepted the GP’s evidence that he was (only) on Ibuprofen.  Second, the tribunal needed to explain why the pain which it accepted the appellant was in when walking did not amount to severe discomfort.  

11.	Moreover, tribunals need to be astute to examine the reasons why a walk through an airport may have been undertaken despite the pain it may have brought on (e.g. to get to a wedding or visit a sick relative – see CDLA/2108/2010), and bear in mind that it is in most, if not all, cases walking that it is not normally undertaken. This is important because if, as here, the walking at the airport is a key aspect of the evidence relied on by the tribunal, it needs to be able to explain why this one-off walking is demonstrative of the claimant’s overall walking ability.  In addition, the airport walking was done here in July 2012, which is a date and a circumstance obtaining after the date of the decision under appeal (19.12.11), and so ought to have been ignored as relevant evidence under section 12(8)(b) of the Social Security Act 1998 unless an adequate explanation was given about why such walking was relevant to the appellant’s ability to walk in December 2011: CDLA/3351/2007               

12.	None of this was done adequately by the tribunal in its assessment of the evidence here, or at least its reasoning does not show that it did this, and it therefore erred in law.’ 

16.	I agree with the analysis undertaken by Judge Wright and commend the guidance given by him to decision-making authorities including appeal tribunals.  I am satisfied that the approach taken by the appeal tribunal, in the instant case, to the evidence concerning the appellant’s one-off trip to Australia was not in keeping with the guidance provided in JT. 

17.	This conclusion is sufficient for me to dispose of the appeal and in these circumstances I have not considered the appellant’s other grounds of appeal. 

	Disposal

18.	The decision of the appeal tribunal dated 16 May 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. 

19.	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 October 2015, which decided that the appellant was not entitled to DLA from and including 22 July 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. 

(signed) K Mullan
Chief Commissioner

21 August 2017