MH-v-Department for Communities (DLA) [2018] NICom 12

Decision No:  C65/17-18(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 6 December 2016

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 6 December 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.	I would ask the Legally Qualified Panel Member (LQPM) to note that I am setting aside the decision of the appeal tribunal with a degree of reluctance given the appeal tribunal’s careful and judicious management of the other aspects of the appeal and its circumspectly prepared statement of reasons.  As will be noted below, however, the principle of law which the appeal tribunal omitted to apply is an important one.  

3.	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. 

4.	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.

5.	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

6.	On 17 December 2015 a decision maker of the Department decided that the appellant was not entitled to DLA from and including 16 November 2015.  The decision dated 17 December 2015 was reconsidered on 24 February 2016.

7.	Following an earlier postponement and an adjournment, the substantive hearing of the appeal took place on 6 December 2016. The appellant was present and was represented.  There was no Departmental Presenting Officer present.  The appeal tribunal allowed the appeal in part, making an award of an entitlement to the lowest rate of the care component of DLA from 16 November 2015 to 15 November 2016.

8.	On 13 April 2017 an application for leave to appeal to the Social Security Commissioner was received in TAS.  On 27 April 2017 the application for leave to appeal was refused by the LQPM.

	Proceedings before the Social Security Commissioner

9.	On 2 June 2017 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 29 June 2017 observations on the application for leave to appeal were requested from Decision Making Services (DMS).  In written observations dated 20 July 2017, Mr Hinton, for DMS, supported the application on one of the grounds submitted by the appellant.  The written observations were shared with the appellant and his representative on 20 July 2017.

10.	On 1 November 2017 I granted leave to appeal.  When granting leave to appeal I gave, as a reason, that it was arguable that the appeal tribunal has failed to properly apply article 13(8)(b) of the Social Security (Northern Ireland) Order 1998, as amended.  On the same date I determined that an oral hearing of the appeal would not be required.

	Errors of law

11.	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?

12.	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.” 

	The error of law in the instant case

13.	In his written observations on the application for leave to appeal, Mr Hinton made the following submissions:

‘I now turn to (the appellant’s) contention that the tribunal in limiting the award of low rate care to a one year period did so on an arbitrary basis without giving due consideration to the proper facts and medical evidence.  Furthermore it made the award based on an isolated comment in a report dated 29 September 2016.

The tribunal in its reasoning explained why it felt an award of low rate care was appropriate and why it limited this award to one year.

“Having considered all of the evidence before it the Tribunal is satisfied that the appropriate award in this case is one of low rate care.  The award is not provided or given because of any of the Appellant’s physical health problems.  The Tribunal does not accept that such problems are so significant so as to attract any award.  From the mental point of view the Tribunal is satisfied that in or about the date of the application the Appellant did require considerable motivation and support from the mental point of view for a significant portion of the day in connection with his bodily functions whether during one period or a number of periods.

The reason for coming to this conclusion is that there is considerable medical evidence before the Tribunal that the Appellant was at that time having fairly serious mental health problems which the GP described in his report as moderate to severe.  The letter from Mrs McC also confirms that the Appellant’s mental health problems at that time had a significant impact on his daily life and ability to function and taking these comments along with the GP’s description into consideration the Tribunal is convinced that this Appellant did need quite a lot of support and motivation at that time because of his mental health condition.  The Tribunal is not however convinced for the reasons given that the motivation etc was required throughout the day but the Tribunal is convinced that certainly throughout certain periods of the day this motivation and support was required.  The Tribunal makes the award from 16 November 2015 to 15 November 2016.  The reason for making this award for a period of one year is that generally speaking and trying to its best in the circumstances the Tribunal do feel that a year is a reasonable period taking into consideration the psychiatrist’s comments in the notes and records dated 29 September 2016.  At that time the Appellant was described as having a moderate episode of depression and good improvement was confirmed although there was still a lot of anxiety symptoms.  Trying to be as fair as it can to the Appellant and doing its best in the circumstances the Tribunal feel that a period of one year award in respect of low rate mobility is reasonable and that is the reason why the appropriate award was made for this period of time”.

The tribunal in the above reasoning referred to the “letter from Mrs McCagney”.  This should actually read Mrs McKe and it refers to correspondence dated 30 October 2015 attached to (the appellant’s) self-assessment form (tabbed document 2).  Furthermore, the last sentence of this reasoning refers to the one year award in respect of low rate mobility.  I would contend this is a typographical error and is intended to read as low rate care.

The tribunal in its reasoning referred to above considered that an award of low rate care was appropriate taking into account the letter from Mrs McKechnie along with the GP factual report; both of these sources of evidence identified (the appellant) as suffering from a moderate to severe mental health condition.  Consequently I would contend the tribunal was correct to make an award of low rate care based on this evidence.  However, where it has erred is its reasoning in limiting the award from 16 November 2015 to 15 November 2016.  I re-iterate how the tribunal justified this as follows:

“…The reason for making this award for a period of one year is that generally speaking and trying to its best in the circumstances the Tribunal do feel that a year is a reasonable period taking into consideration the psychiatrist’s comments in the notes and records dated 29 September 2016.  At that time the Appellant was described as having a moderate episode of depression and good improvement was confirmed although there was still a lot of anxiety symptoms.  Trying to be as fair as it can to the Appellant and doing its best in the circumstances the Tribunal feel that a period of one year award in respect of low rate mobility is reasonable and that is the reason why the appropriate award was made for this period of time”.

It is my contention that the tribunal used evidence relating to a change of circumstances that post-dated the date of decision to justify limiting the award to one year.

Article 13(8)(b) of the Social Security (Northern Ireland) Order 1998 states:

“In deciding an appeal under this Article, an appeal Tribunal – 

(a)…
(b) shall not take into account any circumstances not obtaining at the time when the decision appealed against was made”

In reported GB Commissioner’s decision R(DLA)3/01, Commissioner Jacobs considered the equivalent GB provision (Section 12(8)(b) of the Social Security Act 1998) and stated at paragraph 58:

“Section 12(8)(b) limits an appeal’s tribunal’s jurisdiction by preventing it taking into account a fresh circumstance.  It is only concerned with evidence in this respect:  evidence is not admissible unless it relates to circumstances obtaining at the date of the decision under appeal.  I stand by the statement of the law that I set out in CDLA/2934/1999, para 9:

“In the case of a claim for disability living allowance, the jurisdiction [of an appeal tribunal] is limited to the inclusive period from the date of claim to the date of the decision under appeal.  The effect is also to limit the evidence that is relevant to the appeal.  The only evidence that is relevant is evidence that relates to the period over which the tribunal has jurisdiction.  However, it is the time to which the evidence relates that is significant, not the date when the evidence was written or given.  It does not limit the tribunal to the evidence that was before the officer who made the decision.  It does not limit the tribunal to evidence that was in existence at that date.  If evidence is written or given after the date of the decision under appeal, the tribunal must determine the time to which it relates.  If it relates to the relevant period, it is admissible.  If it relates to a later time it is not admissible”.

The tribunal referred to a psychiatrist’s comments in notes and records dated 29 September 2016 – some 10 months after the date of decision.  The psychiatrist confirmed good improvement in (the appellant’s) mental condition which I contend constituted a fresh change of circumstances.  However, this change of circumstances did not relate to the date of decision under appeal – it related to a later date.

In paragraph 31 of unreported GB Commissioner’s decision CDLA/2878/2000 Commissioner Angus considered section 12(8)(b) and its limitations and in remitting the case to a tribunal gave the following guidance: 

“…The tribunal…will make findings in fact as to:-

(a)	 whether at the date of claim the claimant satisfied the relevant disability conditions and had done so for the previous 3 months and

(b)	 whether on the basis of what was known at the date of claim the claimant was, at that date, likely to continue to satisfy those conditions for the following 6 months.

If the tribunal finds that the answers to both (a) and (b) are in the affirmative it should award benefit from the date of claim to the date on which the claimant, on the evidence, ceased to satisfy the relevant conditions for entitlement provided the date of cessation falls before the date of the decision maker’s determination.  If the date of cessation falls after the date of the decision maker’s determination the tribunal must make an open-ended award of benefit and leave it to the Secretary of State to supersede the award with effect from the date of cessation.  This is because section 12(8)(b) of the 1998 Act prohibits the tribunal from making a decision wholly or partly on the basis of circumstances arising after the date of the adjudication officer’s decision”.

Therefore, in line with the above the tribunal in this case should not have limited the award of Disability Living Allowance to one year - it should have made an open-ended award and remitted the case to the Department to take account of any changes of circumstances that has occurred since the date of decision that was subject to the appeal.  The tribunal’s failure to correctly apply the legislative requirements in article 13(8)(b) of the Social Security (Northern Ireland) Order 1998 renders its decision erroneous in law.’

14.	I agree with Mr Hinton’s careful analysis and for the reasons which have been set out by him agree that the decision of the appeal tribunal is in error of law.  The decision of the Commissioner in CDLA/2878/2000 has never been doubted.  It is noted, together with the parallel decision in R(DLA) 3/01 in the annotation to section 12(8)(b) of the Social Security Act 1998 (the equivalent of article 13(8)(b) of the Social Security (Northern Ireland) Order 1998) in paragraph 1.442 of Volume III of Social Security Legislation 2017/2018.  I accept that the principles set by the Commissioner apply in Northern Ireland and represent the proper approach to be taken by decision-making authorities, including appeal tribunals, in Northern Ireland.

15.	Having found, for the reasons which are set out above, that the decision of the appeal tribunal is in error of law, I do not have to consider the appellant’s other grounds for appealing. I would indicate, however, that I would not have found the decision of the appeal tribunal to be in error of law on the other grounds cited by the appellant. 

Disposal

16.	The decision of the appeal tribunal dated 6 December 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. 

17.	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 17 December 2015 in which a decision maker of the Department decided that the appellant was not entitled to DLA from and including 16 November 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 April 2018