RMcC-v-Department for Communities (DLA) [2017] NICom 52

Decision No:  C59/17-18(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 25 July 2016

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 25 July 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 22 July 2015 a decision maker of the Department decided that the appellant was not entitled to DLA from and including 20 April 2015.  An appeal against the decision dated 22 July 2015 was received in the Department on 13 August 2015.

6.	The appeal was first listed for oral hearing on 20 November 2015. The appellant was not present but was represented.  There was a Departmental Presenting Officer present.  The appeal was adjourned in order that a request could be made by the appellant’s representative for the appellant to be examined by an Examining Medical Practitioner (EMP) and for the appeal tribunal to be provided with a typed version of a General Practitioner (GP) Factual Report.   

7.	A further submission dated 6 January 2016 was subsequently received in the Appeals Service (TAS).  The appeal submission noted that the appellant was examined by an EMP on 1 December 2015 and a copy of the report of that examination was attached to the submission.  A copy of the requested typed version of the GP Factual Report was also attached. The appeal submission also noted that the Department continued to submit that the decision dated 22 July 2015 was correct and should be upheld.

8.	The substantive oral hearing of the appeal took place on 25 July 2016. The appellant was not present but she was represented and her son was present.  There was no Departmental Presenting Officer present.  The appeal tribunal allowed the appeal, in part, making an award of entitlement to the lower rate of the mobility component of DLA from and including 20 April 2015.   

9.	On 12 August 2016 correspondence from the appellant was received in TAS.  On 16 August 2016 the clerk wrote to the appellant asking her to clarify whether she wished to make an application to have the decision of the appeal tribunal set aside or whether she wished to apply for a statement of reasons for the appeal tribunal’s decision in order to enable her to make an application for leave to appeal to the Social Security Commissioner. 

10.	On 30 August 2016 a reply was received from the appellant in which she indicated that her intention was to apply for a statement of reasons for the appeal tribunal’s decision in order to enable her to make an application for leave to appeal to the Social Security Commissioner.

11.	On 6 September 2016 further correspondence was sent to the appellant by the clerk in which it was indicated that her confirmation that she wished to apply for a statement of reasons for the appeal tribunal’s decision meant that the application was now outside of the prescribed time limits for making such an application.  She was asked whether she wished to apply for an extension of time for making such an application. There is no evidence in the file of papers that the appellant ever made such an application. Nonetheless, on 19 October 2016, the Legally Qualified Panel Member (LQPM) determined that it was in the interests of justice to grant an extension of time for the provision of a statement of reasons.

12.	On 12 December 2016 an application for leave to appeal to the Social Security Commissioner was received in TAS.  On 6 January 2017 the application for leave to appeal was refused by the LQPM.

	Proceedings before the Social Security Commissioner

13.	On 6 February 2017 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  The appellant’s son was nominated as her representative.  On 20 February 2017 observations on the application were requested from Decision Making Services (DMS).  In written observations dated 9 March 2017, Mr Hinton, for DMS, supported the application on one of the grounds advanced on behalf of the appellant.  The written observations were shared with the appellant and her son on 9 March 2017. 

14.	On 8 August 2017 I granted leave to appeal.  When granting leave to appeal I gave as a reason that it was arguable that the appeal tribunal had failed to explore all of the issues arising in the appeal in line with its inquisitorial role.  On the same date I directed that an oral hearing of the appeal would not be required.

	Errors of law

15.	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?

16.	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

17.	In his comprehensive and constructive written observations on the application for leave to appeal, Mr Hinton has made the following submissions:

‘At section 3(c) of the appeal papers relating to the mobility component it is stated:

“The Appellant’s representative, Ms M…., indicated with regard to the mobility component, that the appeal related solely to the low rate and so we have not considered the high rate”.

In a similar vein with regards to the care component it was recorded at section 3(b) of the appeal papers:

“The Appellant’s representative, Ms M…., indicated with regard to the care component that the appeal related to the middle rate for daytime attention and so we need not consider the high rate for night time”.

I will deal first of all with (the representative’s) contention that a pre-arranged deal was struck between the tribunal and Ms M…. to restrict the awards of both components and prevent possible entitlement to higher rates.  I would contend this was not the case.  An appeal tribunal is an independent body that will hear evidence from all parties and make an informed and balanced decision based on that evidence.  It would go against the principles of fairness and natural justice if a tribunal conducted its business in this way and in (the appellant’s) case I can find no evidence that such an arrangement took place.  I would contend the tribunal was only made aware of Ms M….’s intentions when the proceedings commenced.  Consequently there is no merit with regards to this issue.

I now turn to Ms M….’s statements regarding both the care and mobility components.  Ms M…. stated that she was content for the tribunal to consider entitlement to the low rate of the mobility component and the middle rate of the care component and not to seek entitlement to any of the higher rates.  The tribunal agreed to adopt this stance.  The question I would pose is this; did the tribunal fulfil its inquisitorial role properly?

In C37/09-10(DLA) Commissioner Mullan conducted a detailed analysis of the appeal tribunal’s inquisitorial role.  He referred at length to the NI Court of Appeal decision Mongan v Department for Social Development [2005] NICA 16 (reported decision R3/05(DLA).  The Lord Chief Justice stated at paragraph 17:

“Whether an issue is sufficiently apparent from the evidence will depend on the particular circumstances of each case.  Likewise, the question of how far the tribunal must go in exploring such an issue will depend on the specific facts of the case.  The more obviously relevant an issue, the greater will be the need to investigate it.  An extensive enquiry into the issue will not invariably be required.  Indeed, a perfunctory examination of the issue may often suffice.  It appears to us, however, that where a higher rate of benefit is claimed and the facts presented to the tribunal suggest that an appellant might well be entitled to a lower rate, it will normally be necessary to examine that issue, whether or not it has been raised by the appellant or her legal representatives”.

The Commissioner then considered the tribunal’s inquisitorial role where the appellant is represented and applied these to the principles laid down in Mongan.  At paragraphs 36 and 37 of his decision he stated:

“What is the ambit of the inquisitorial or enabling role where the appellant is represented?  This was precisely the situation in Mongan.  In my view, the principles set out in Mongan should not lead to the diminution or dilution of good advocacy before the appeal tribunal.  A good advocate will seek to persuade an appeal tribunal that the evidence before it is supportive to entitlement to all or part of the relevant social security benefit – a certain component at a certain rate.  Good advocacy includes, however, the concession by the advocate that the evidence before the appeal tribunal does not support entitlement to all or part of the relevant benefit – again a certain component at a certain rate.  Many of the representatives who appear before appeal tribunals on behalf of their clients have the expertise to make relevant and appropriate submissions, including concessions, to the appeal tribunal concerning the issues arising in the appeal.  That expertise and experience should not, in my view, be lost by an interpretation of Mongan which suggests that there can be no reliance by an appeal tribunal on concessions made by a representative.

In my view, the duties set out in Mongan can be fulfilled by an appeal tribunal:

(i)  inviting submissions from the representative which     submissions may include concessions by the representative concerning issues arising in the appeal;

(ii)  clarifying the legal and evidential basis on which any concession is based;

(iii)  ensuring that the appellant agrees with the submissions, and any concession made by the representative

(iv)  adducing any further evidence which may be necessary to assist in the appeal tribunal’s consideration of the submission;

(v)  most importantly, considering the submission which has been made, and determining whether, on the basis of its independent and objective assessment of the submission, the appeal tribunal agrees with it; and

(vi)  recording the appeal tribunal’s conclusions on (i) to (v) above both in the record of proceedings (ROP’s) and in any SOR’s for the appeal tribunal’s decision”.

Consequently in line with the above, how did the appeal tribunal deal with the mobility and care aspects of (the appellant’s) claim?

I will deal with the mobility component first.  The tribunal seems to have taken the decision not to consider the high rate of the mobility component because Ms M…. stated the appeal solely related to the low rate.  I re-iterate the relevant passage as follows:

“The Appellant’s representative, Ms M…., indicated with regard to the mobility component, that the appeal related solely to the low rate and so we have not considered the high rate”.

It would appear to me on perusing the above that the tribunal has not adhered to the principles laid down in paragraphs (i) to (v) of C37/09-10(DLA).  It is true that the evidence presented in the report of the EMP with regards to high rate mobility would indicate that (the appellant) did not meet the test for entitlement.  However, I would refer to the evidence presented by (the appellant’s) son M at the hearing.  I accept that he was not acting as a representative; however he was there to present evidence on his mother’s behalf, consequently this evidence was relevant to the tribunal’s decision making.  In the record of proceedings M stated the following with regards to his mother’s walking ability:

“... My mother cannot stand up straight and bend her shins.  Her balance is not normal.

... Any exertion is difficult, she gets dizzy, short of breath, leg and back pain, shoulder pain pulling her out of a chair...”

On perusing the contents of the tribunal hearing it is not clear if Ms M…. discussed with M beforehand her intention with regards to the rates of the mobility and care components she was seeking.  However, it is my contention, bearing in mind the principles laid down in the aforementioned decision that the tribunal had a duty to comment and assess the evidence put forward by M.  I would contend that as M’s evidence formed a major part of the record of proceedings the tribunal should also have clarified with him if he agreed to the stance adopted by the representative.  However, I see no evidence that M was consulted about this issue.  After assessing this evidence the tribunal might very well have concluded that entitlement to high rate mobility was still not satisfied and it would have been within its rights to adopt this view.  However by failing to clarify on what grounds it decided not to pursue its investigations into high rate mobility, I would contend it has erred in law.

With regards to the care component I once again re-iterate Ms M….’s statement as follows:

“The Appellant’s representative, Ms M…., indicated with regard to the care component that the appeal related to the middle rate for daytime attention and so we need not consider the high rate for night time”.

The main contention in support of (the appellant’s) entitlement with regards to night time needs was that she required assistance getting to and from the toilet.  The tribunal would have noted the evidence contained within the report of the EMP who formed the opinion that (the appellant) was capable of attending to her toilet needs without assistance.  However, the record of proceedings contains the following information provided by M and this states:

“She’s helped across to the toilet in case she gets dizzy ... His dad helps her to the toilet.  He doesn’t know for sure but he thinks his father helps her on and off the toilet...”

Consequently, in line with the above I would contend the tribunal had a duty in similar vein to the mobility component to adhere to the principles laid down in the aforementioned case law.  Its failure to do this renders its decision erroneous in law. 

Furthermore as highlighted by Commissioner Mullan in C37/09-10(DLA) there was a duty on a tribunal to ensure that an appellant agrees with any proposed concession made by a representative, there is nothing within the record of proceedings or reasons for decision that (the appellant) agreed to such concessions. I appreciate that she was not at the hearing but the tribunal should have enquired with Ms M…. and/or her son M, if indeed (the appellant) did in fact agree with the concession. The tribunal’s failure to explore this issue further renders the decision erroneous in law.’

18.	In my view the issue is a narrow one but, on balance, I accept the submission which has been made by Mr Hinton on the ambit of the appeal tribunal’s inquisitorial role.  Mr Hinton is correct to note that my decision in C37/09-10(DLA) sets out the principles to be applied when an appeal tribunal is faced with a representative who purports to make concessions on behalf of the appellant.  The thrust of my decision was that the expertise and experience of appeal tribunal representatives should not be lost by an interpretation of Mongan which suggests that there can be no reliance by an appeal tribunal on concessions made by a representative. 

19.	That general principle was qualified, however, by the guidance which I provided in paragraph 37.  Returning to the instant case, if the evidence which had been given by the appellant’s son, which was suggestive of a potential entitlement to DLA at rates different to those conceded by the representative, had, instead, been given by the appellant had she been present, then I would have no doubt that the appeal tribunal would have been under a duty to explore that evidence with her in the context of (i) the concession and whether the appeal tribunal agreed with that concession and (ii) whether the additional evidence confirmed entitlement to DLA at different rates than those conceded.  I see no reason why the appeal tribunal was not under a duty to explore the additional evidence just because it had been given by the appellant’s son rather than the appellant herself. 

20.	I have used the phrase ‘evidence suggestive of potential entitlement’ in a deliberate manner.  It may well have been the case that on a proper assessment of that evidence there was no entitlement to DLA at rates different to those conceded.  That does not, however, negate the duty of the appeal tribunal to explore and assess it.

21.	Mr Hinton is quite correct to note that the appellant was not present and that there was no possibility of the appeal tribunal determining whether she agreed with the assessments being made.  Although I would not agree that an omission to confirm agreement with the concession with the appellant’s son would amount to a material error of law, it would have been best and safest practice so to do and record any such agreement in the record of proceedings.

22.	Having found, for the reasons set out above, that the decision of the appeal tribunal is in error of law, I have not have to explore the other grounds of appeal advanced on behalf of the appellant.  I would indicate, however, that I would not have found the decision of the appeal tribunal to be in error of law on the basis of those grounds.

	Disposal

23.	The decision of the appeal tribunal dated 25 July 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. 

24.	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 22 July 2015, which decided that the appellant was not entitled to DLA from and including 20 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)	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

18 September 2017