KA-v-Department for Communities (PIP) [2018] NICom 29

Decision No:  C1/17-18(PIP)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

PERSONAL INDEPENDENCE PAYMENT

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 16 June 2017

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 16 June 2017 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 Personal Independence Payment (PIP), for a particular period, remains to be determined by another appeal tribunal.

	Background

5.	On 25 October 2016 a decision maker of the Department decided that the appellant was not entitled to PIP from and including 25 July 2016.  Following a request to that effect and the receipt of additional medical evidence, the decision dated 25 October 2016 was reconsidered on 9 January 2017 but was not changed.  An appeal against the decision dated 25 October 2016 was received in the Department on 27 February 2017.

6.	Following an earlier adjournment, the substantive appeal tribunal hearing took place on 16 June 2017.  The appellant was present and was represented by Mr Higgin of the Citizens Advice organisation.  There was no Departmental Presenting Officer present.  The appeal tribunal disallowed the appeal and confirmed the decision dated 25 October 2016.

7.	On 18 October 2017 an application for leave to appeal to the Social Security Commissioners was received in the Appeals Service (TAS).  On 16 November 2017 the application for leave to appeal was granted by the Legally Qualified Panel Member (LQPM).  When granting leave to appeal the LQPM identified the following point of law:

‘Activity 3 of the daily living component – managing therapy – has not been dealt with in the statement of reasons.’

	Proceedings before the Social Security Commissioner

8.	On 13 December 2017 the appeal was received in the Office of the Social Security Commissioners.  On 30 January 2018 observations on the application for leave to appeal were requested from Decision Making Services (‘DMS’).  In written observations dated 20 February 2018, Mr Hinton, for DMS, supported the application for leave to appeal.  Written observations were shared with the appellant and Mr Higgin on 22 February 2018.  On 5 June 2018 I determined that an oral hearing of the appeal would not be required and invited a final submission from the appellant and/or Mr Higgin.  Further correspondence was received from Mr Hatton on 11 June 2018 in which he indicated that he had no further submission to make.

	Errors of law

9.	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?

10.	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

11.	This appeal can be dealt with in short order.  The LQPM, the appellant’s representative and the Department are all in agreement that there has been an error of law.  The error is the failure by the appeal tribunal to address, in the statement of reasons for its decision, an issue raised by the appeal.  That issue was the potential application of activity 3 in part 1 of Schedule 1 to the Personal Independence Payment Regulations (Northern Ireland) 2016.

	Disposal

12.	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 25 October 2016, which decided that the appellant was not entitled to PIP from and including 25 July 2016;

	(ii)	the Department is directed to provide details of any subsequent claims to PIP and the outcome of any such claims to the appeal tribunal to which the appeal is being referred;

	(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

26 June 2018