TG-v-Department for Communities (DLA) [2017] NICom 68

Decision No:  C63/17-18(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 4 August 2016

DECISION OF THE SOCIAL SECURITY COMMISSIONER

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

2.	For the reasons I give below, I allow the appeal and I refer the appeal to a newly constituted tribunal with directions for its disposal.

REASONS

	Background

3.	The applicant claimed disability living allowance (DLA) from the Department for Social Development (the Department) from 21 April 2015 on the basis of needs arising from angina, heart problems, swollen joints, mobility difficulties, arthritis, and kidney problems.  The Department directed a report from a healthcare professional (HCP).  Following a number of failed attempts, efforts to arrange an examination were abandoned.  On 9 December 2015 the Department decided that the applicant did not satisfy the conditions of entitlement to DLA from and including 21 April 2015.  A copy of the notification of that decision to the applicant does not appear in the file before me.  However, the Department’s computer record of the decision indicates that it was made because of the applicant’s “failure to establish that the customer’s conditions have been satisfied … customer has failed to … make themselves available for examination on 2 or more attempts”.  On 11 January 2016 the Department obtained a report from the applicant’s General Practitioner (GP).  A reconsideration decision was made which maintained disallowance of DLA on the same grounds.  The applicant appealed.

4.	The appeal (under Appeals Service reference CN/3486/16/37/D) was considered by a tribunal consisting of a legally qualified member (LQM), a medically qualified member and a disability qualified member, along with a second appeal by the applicant relating to the claim he submitted following the rejection of his first claim (under Appeals Service reference CN/7026/16/37/D).  After a hearing on 4 August 2016 the tribunal disallowed the appeal.  The applicant then requested a statement of reasons for the tribunal’s decision and this was issued on 20 October 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 on 9 December 2016.  On 6 January 2017 the applicant applied to a Social Security Commissioner for leave to appeal.

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

	Grounds

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

	(i)	it irrationally rejected evidence of suicidal ideation when it was supported by medical evidence;

	(ii)	it made unreasonable findings about attempts to rearrange a medical examination and made an unfair decision on that issue.

6.	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

7.	The LQM has prepared a statement of reasons for the tribunal’s decision.  From this I can see that the tribunal had documentary material before it consisting of the Department’s submission, including the claim form and a factual report from the applicant’s GP.  It further had sight of the applicant’s medical records, an Examining Medical Practitioner (EMP) report dated 3 March 2015, an undated report from the applicant’s GP and a report from Dr Barbour dated 17 May 2016.  The applicant attended and gave evidence through a Polish interpreter, was accompanied by his niece, and was represented by Mr McCloskey of Citizens Advice.

8.	The tribunal records its finding that the applicant was invited to examination by an EMP on 2 September 2015.  It records that the applicant gave evidence that he had received notice of this appointment on 29 August 2015, had contacted Department on 1 September 2015 to indicate that he needed an interpreter, but had been told that the examination would proceed.  The tribunal accepted that he had good cause for not attending this examination.

9.	The tribunal records that the Department had indicated in the papers that a further visit was arranged for 16 September 2015.  The applicant stated that he had not received notification of that date.  The tribunal found that the information provided by the Department was insufficient to confirm that an examination had been arranged for that date.

10.	The tribunal records that the Department provided information indicating that it had tried to contact the applicant by telephone between 23 November 2015 and 2 December 2015.  It accepted that the telephone calls were made and found as a fact that the Department had tried to contact the applicant on 17 occasions by telephone call.  The tribunal did not accept as credible the applicant’s evidence as to why he did not respond to the telephone calls.  It found that these put the applicant on notice that a medical examination was required, found that there was an onus on the applicant to attend the medical examination and that he did not do so.  It found that the applicant had failed, without good cause, to comply with the request and upheld the Department’s decision.

	Relevant legislation

11.	Article 19 of the Social Security Order (NI) 1998 (the 1998 Order) provides for medical examinations in the context of claims for benefit.  It permits the Department to refer a claimant to a HCP.  It provides for the HCP to request a claimant to attend a medical examination and for consequences where a claimant fails to attend or fails to submit for medical examination.  It reads,

	19.—(1) Before making a decision on a claim for a relevant benefit, or as to a person’s entitlement to such a benefit, the Department may refer the person—

		(a) in respect of whom the claim is made; or

		(b) whose entitlement is at issue,

	to a health care professional approved by the Department for such examination and report as appears to the Department to be necessary for the purpose of providing it with information for use in making the decision.

	(2) Paragraph (3) applies where—

		(a) the Department has exercised the power conferred on it by paragraph (1); and

		(b) the health care professional approved by the Department requests the person referred to him to attend for or submit himself to medical examination.

	(3) If the person fails without good cause to comply with the request, the Department shall make the decision against him.

	Assessment

12.	I considered that the facts demonstrated an arguable case of error of law and granted leave on the basis that it was arguable that the tribunal:

	(i)	had insufficient evidence before it on which to be satisfied that the requirements of Article 19 of the 1998 Order were satisfied;

	(ii)	had insufficient evidence before it to determine whether Medical Support Services had made telephone calls as claimed;

	(iii)	did not consider whether the claimed telephone calls amounted to a request to the applicant to attend for or submit to medical examination;

	(iv)	if these telephone contacts amounted to a request for the applicant to attend a medical examination, did not address the submission that the applicant’s lack of proficiency in English amounted to “good cause”.

	Hearing

13.	I held an oral hearing of the appeal.  The appellant was present and made submissions with the assistance of a Polish interpreter.  Mr Donnelly of DMS represented the Department.  In the course of the hearing, Mr Donnelly resiled from his initial opposition to the appeal.

	Assessment

14.	This appeal is concerned with the proper application of Article 19 of the 1998 Order.  It appears to me that there are three elements to that provision.  The first enables the Department to refer a claimant to a HCP for examination and report.  The second involves the HCP in making a request to the claimant to attend for, or submit to, examination.  The third requires the Department to make a decision against a claimant who receives such a request, but fails to comply with it, in the absence of the claimant showing good cause for that non-compliance.

15.	The normal position under the Social Security (Claims and Payments) Regulations (NI) 1987 is that when a person claims benefit, he or she has a right to a decision on the merits.  In the context of a DLA claim, the consequence of applying Article 19 is the mandatory refusal of a claim with no actual consideration of its merits.  As with any similar provision curtailing existing rights, I consider that Article 19 of the 1998 Order should be construed strictly.

16.	The facts of the present case are agreed to a certain extent, but the documentary evidence of certain events is deficient in some regards.  Nothing turns on that in this particular case.  However, it may be more relevant in other cases and I shall say something about that later.

17.	It is established that the appellant was referred to Medical Support Services by the Department on 14 August 2015. There is no documentary evidence to this effect in the papers, but it appears that Medical Support Services wrote to the appellant to indicate that a domiciliary visit would be made on 2 September 2015 in order to examine him.  This was a Wednesday following a Monday bank holiday.  The appellant gave evidence to the tribunal that he received the letter advising him of the visit at the weekend and that he contacted Medical Support Services on the Tuesday to indicate that he would require a Polish interpreter for any examination.  What happened next is not formally evidenced, but a “case return pro forma” dated 18 September 2015 suggests that a HCP made a visit to the appellant’s home on 2 September 2015, but could not gain access.  In any event, the tribunal accepted the appellant’s evidence concerning these events and accepted that he had good cause for not submitting to examination on that date.

18.	The papers contain no evidence that a further domiciliary visit was arranged.  The same case return pro forma of 18 September 2015 suggests that a further attempt was made to visit the appellant on 16 September 2015.  There is a DBD44 document dated 25 September 2015 to the applicant asking why he did not “attend” an examination but this makes no reference to the proposed date of any examination.  On it, the appellant responds as if it was requesting his reasons for not “attending” the medical examination of 2 September 2015.  (I use inverted commas as it seems to me an odd use of language to ask the applicant why he did not attend an examination, when the HCP appeared to be visiting him at his home).  The appellant indicated that he received no notice of a prospective visit on 16 September 2015.  In the absence of any evidence in the tribunal papers to suggest that such a visit had been arranged the tribunal accepted that the requirements of Article 19 were not satisfied.

18.	What then happened is that, having received the case back from Medical Support Services by way of the case return pro forma of 18 September 2015, the Department referred the appellant back to Medical Support Services on 12 October 2015, highlighting that an interpreter would be required.

19.	A second case return pro forma dated 3 December 2015 appears in the papers.  This refers to Medical Support Services having tried to contact the appellant by telephone between 23 and 26 November 2015 at a rate of three calls per day, followed by three attempts on 30 November 2015 and two on 1 December 2015.  It was reported that no answer was received to any of these phone calls or else there was an automated message saying that it was not possible to connect the call.

20.	Essentially, in reaching its decision in relation to the referral of 12 October 2015, the tribunal found that a HCP approved by the Department requested the appellant to attend for a medical examination.  It found that the appellant failed without good cause to comply with the request.  Mr Donnelly for the Department initially supported that decision.

21.	However, at hearing, I pressed Mr Donnelly on the question of whether there had been any request to the appellant to attend a medical examination, following the fresh referral of 12 October 2015.  The evidence appeared to indicate at its height that the Department rang the appellant’s mobile telephone on 17 occasions.  On some of those occasions there appeared to be no answer.  On other occasions there had been an automated message saying that it had not been possible to connect the call.  It was not the Department’s case that a message had been left on any occasion, and it was accepted that on no occasion had there been communication with the appellant.

22.	It was accepted at the hearing before me that the appellant did not speak English as a primary language and there was evidence that he had mental health problems leading to him isolating himself from other people.  It does not entirely surprise me that he would not have responded to a phone call which happened to be from the Department but which would have appeared on his telephone screen as “Unknown number”.  However, the issue before me is not whether he would have had good cause for not answering his phone.

23.	I consider that the real issue is whether any of the incomplete telephone calls, in the course of which it is accepted that no communication was made with the appellant, can have amounted to a request to attend or submit to a medical examination.  It appears to me that a request to attend a medical examination would indicate to a claimant that such an examination had been scheduled and that it would notify the claimant of the place and time of the examination.  It may also be the case that a request would indicate any consequences for failing to attend.

24.	In the circumstances of this case, there is absolutely no evidence that Medical Support Services made any communication to the appellant which could have amounted to a request to attend or submit to a medical examination.

25.	The Department’s submission to the tribunal included a reconsideration decision which reasoned that “the Department has made every reasonable attempt to obtain medical information in relation to this claim and the onus is on the customer to provide sufficient information in relation to this claim …”.  However, I observe that this reasoning has no connection to the requirements of Article 19.

26.	The tribunal included among its reasons that “there is an onus on the appellant to attend for medical examination and he did not do so”.  However, this misstates the legal requirements on the appellant.  There is an onus on an appellant to attend a medical examination where he has been requested to attend one.  In this case no written or spoken request to attend a medical examination was communicated to the appellant following the referral of 12 October 2015.  There can therefore have been no failure on the part of the appellant to comply with any such request.  I consider that the tribunal has erred in law by accepting that the series of incomplete attempts at communication by telephone can have amounted to a request to attend or submit to a medical examination.  I set aside its decision accordingly.

27.	I have not seen a case of this type before and it seems to me that Article 19 may be applied relatively rarely. It further seems to me that if the Department seeks to base a decision on Article 19 that it needs to include among the evidence:

	a)	as here, the DLA146 form referring the claimant to a HCP for examination and report;

	b)	as was not the case here, documentary evidence of the request to the claimant to attend or submit to medical examination, stating the date and time of that examination;

	c)	if the claimant has not attended or submitted to examination at that date and time, evidence to that effect;

	d)	where the claimant has not attended or submitted to examination, evidence such as the DBD44 form which identifies the date on which the applicant was requested to attend or submit for examination, which asks why he or she did not attend and which sets out any reason given by the claimant for non-attendance.

28.	While there was a DBD44 among the papers before the tribunal, referring to the request to submit to examination on 2 September 2015, there was no such document relating to the referral of 12 October 2015.  This is unsurprising, as in my judgement there was no request after that date.

29.	Having set aside the decision of the tribunal, I asked for submissions on how to dispose of the case, given the somewhat unusual circumstances.  In particular, because there was a decision under Article 19, there was no Departmental decision on the merits of the case.  Having considered those submissions, I consider that I should decide the Article 19 aspect myself and to give the decision which the tribunal should have given.  It is my decision that there was no basis in law to disallow the appellant’s claim under Article 19 of the 1998 Order.

30.	In these circumstances, a decision on the substantive merits of the appellant’s claim of 21 April 2015 remains outstanding.

31.	I have reached a determination in the other application concerning the appellant’s claim from 11 January 2016.  It is my decision in that case to remit that appeal to a newly constituted tribunal for determination.

32.	Although I have decided the two cases separately, it appears expedient to similarly remit the question on the appellant’s entitlement to DLA from 21 April 2015 to the same tribunal.

33.	The tribunal shall consider each of the appellant’s claims, namely that from 21 April 2015 and that from 11 January 2016, and determine them on the merits.

34.	The tribunal is not precluded from referring the appellant for medical examination, if it considers that this would be a helpful course of action, bearing in mind that it is charged with considering the appellant’s circumstances as they were from 21 April 2015 and 11 January 2016.

(signed):  O Stockman

Commissioner

14 November 2017