TG-v-Department for Communities (DLA) [2017] NICom 69

Decision No:  C66/17-18(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 4 August 2016

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application by the claimant for leave to appeal from the decision of an appeal tribunal sitting at Craigavon under Appeals Service file reference CN/7026/16/37/D.

2.	For the reasons I give below, I grant leave to appeal and I set aside the decision of the tribunal under Article 15(7) of the Social Security (NI) Order 1998, and I refer the appeal to a newly constituted tribunal for determination.

REASONS

	Background

3.	The applicant claimed disability living allowance (DLA) from the Department for Social Development (the Department) from 11 January 2016 on the basis of needs arising from angina, heart problems, swollen joints, mobility difficulties, arthritis, and kidney problems.  In his claim form, the applicant further referred to suicidal thoughts.  The Department obtained a report from the applicant’s general practitioner (GP) on 25 February 2016.  On 8 March 2016 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 11 January 2016.  The applicant appealed.

4.	The appeal (under reference CN/7026/16/37/D) was considered by a tribunal consisting of a legally qualified member (LQM), a medically qualified member and a disability qualified member.  The appeal was heard together with another appeal relating to an earlier claim (under reference CN/3486/16/37/D) on 4 August 2016.  The tribunal disallowed the appeals.  The applicant then requested a statement of reasons for the tribunal’s decision.  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 it did not find his evidence credible despite being supported by:

	(i)	an Employment and Support Allowance (ESA) report which stated suicidal thoughts at present and likely fragile mental state at this time;

	(ii)	a psychiatrist’s report which stated that he had suicidal ideation, auditory hallucinations, depression and anxiety;

	(iii)	the GP records which referred to him buying a rope with plans to take his own life and hearing voices telling him to do so;

	(iv)	GP records documenting that he pulled two healthy teeth from his mouth when suicidal.

6.	The applicant further submits that the tribunal made unreasonable findings about attempts to rearrange a medical examination.  However, this relates to the first appeal only.

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 decisions

8.	The LQM has prepared a statement of reasons for the tribunal’s decision.  From the statement of reasons I can see that the tribunal had documentary material before it consisting of the Department’s submissions, which contained the relevant claim forms and factual reports from the applicant’s GP dated 11 January 2016 and 25 February 2016.  It further had sight of the applicant’s medical records.  It also had an ESA85 report dated 30 March 2015, which had been prepared by a healthcare professional for the purposes of an ESA claim, and a further ESA85A report dated 10 March 2016.  The tribunal also had a report dated 15 May 2016 in the form of a questionnaire directed to the applicant’s GP by his representatives and a similar undated report from the applicant’s psychiatrist’s senior houseman.  The applicant had attended the tribunal, accompanied by his niece, and was represented by Mr McCloskey of Citizens Advice.  He gave oral evidence through a Polish interpreter.  The Department was not represented.

9.	The tribunal indicates that it did not find the applicant to be a credible witness and that it did not believe much of his evidence.  While it found the applicant’s evidence to be contradictory, it found that in the main he accepted that he could and did look after himself on a day to day basis.  It found that he was able to attend to all his self-care needs, with the possible exception of getting in and out of the bath.  It found that it had not been established that he would not perform his own bodily functions without encouragement.  It found that the applicant did not reasonably require supervision day or night.  On the basis of the evidence it found that he did not satisfy the conditions of entitlement for any rate of the care component.

10.	In relation to mobility the tribunal did not accept the opinion of the GP, as set out in the pro forma report of 17 May 2016, that the applicant was restricted to walking less than 50 metres due to breathlessness and joint pains, noting that this opinion referred to a period some five months earlier and seeing no corroboration in the GP notes and records that the applicant’s mobility was so restricted.  The tribunal disregarded a report prepared for ESA purposes in March 2015 which referred to restricted mobility due to breathlessness, as this pre-dated the insertion of stents.  It further found that the exertion required to walk would not constitute a danger to the applicant, contrary to the submission made.  It considered the report of January 2016 which referred to “current low mood” and “suicidal” but considered that this was not relevant as it was “after the date of disallowance”.  It refers to the GP records of February 2016 which indicates “that weeks can go by when he sees nobody … he has no current suicidal intent … he doesn’t feel depressed”.  The tribunal accepted that the applicant had mental health problems but found that he did not reasonably require guidance or supervision when walking outdoors on unfamiliar routes most of the time.

	Relevant legislation

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

	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.

	…

	Assessment

12.	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.

13.	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.

14.	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.

15.	The Department initially opposed the application for leave to appeal.  Having considered the case in more detail, the Department wrote on 26 October 2017 to indicate support for the application.  The basis for this was that the tribunal, in assessing the applicant’s mental health, had regard to a report which appeared in the medical records but which post-dated the decision under appeal.  While acknowledging that a tribunal could have regard to post-decision evidence if it expressly found that it reflected the circumstances obtaining at the time the decision under appeal was made, it did not make such a finding in this case.  Mr Donnelly for the Department therefore submits that the decision of the tribunal was erroneous in law.

16.	In these circumstances, I set aside the decision of the appeal tribunal and I refer the appeal to a newly constituted tribunal for determination.

17.	Although considered separately, there are common issues between this case and the decision in C63/17-18(DLA).  I consider that it is expedient for the appeal remitted in these proceedings to be heard together by the same tribunal as will decide the applicant’s other appeal.

18.	The new tribunal shall therefore hear the issue of the applicant’s entitlement to DLA from 21 April 2015 and from 11 January 2016 together.

(signed):  O Stockman

Commissioner

20 November 2017