SG-v-Department for Communities (DLA) [2018] NICom 3

Decision No:  C70/17-18(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 26 September 2016

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is a claimant’s application for leave to appeal from the decision of an appeal tribunal sitting at Enniskillen.

2.	For the reasons I give below, I grant leave to appeal.  However, I disallow the appeal.

REASONS

	Background

3.	The appellant claimed disability living allowance (DLA) from the Department for Social Development (the Department) from 25 January 2010 and was awarded high rate mobility component and middle rate care component until 28 March 2011.  She was subsequently awarded high rate mobility component and middle rate care component for a two-year period until 28 March 2013.  She made a renewal claim from 29 March 2013 on the basis of needs arising from a compression fracture, thoracic osteoarthritis, cervical loss of lordosis, knee osteoarthritis, bone and cartilage damage, sciatica, disc degeneration, facet joint degeneration and spinal canal compromise, osteochondritis, a sleeping disorder, migraine, bilateral hand osteoarthritis, bilateral tarsal tunnel syndrome, bilateral carpal tunnel syndrome, bilateral plantar fasciitis, irritable bowel syndrome, irritable bladder, chronic pelvic pain, bilateral ovarian cysts, chronic pelvic adhesions, endometriosis, acid reflux, dry eye syndrome, chronic sinusitis, tinnitus, stress, temporomandibular joint dis-function, eczema, dermatitis, rosacea, xanthelisma and excessive facial hair. The Department obtained a report from the appellant’s general practitioner (GP) on 8 February 2013.  The Department obtained a report from a physiotherapist on 26 March 2013.  On 11 April 2013 the Department decided on the basis of all the evidence that the appellant satisfied the conditions of entitlement to the low rate mobility component and the middle rate care component of DLA from 29 March 2013 to 28 March 2015.  The appellant appealed.

4.	An initial appeal was considered by a tribunal on 4 February 2015.  However, on 22 March 2016, I set aside the decision of the appeal tribunal under Article 15(7) of the Social Security (NI) Order 1998 and remitted the appeal for redetermination.  The appeal was reconsidered by a newly constituted tribunal consisting of a legally qualified member (LQM), a medically qualified member and a disability qualified member.  After a hearing on 26 September 2016, which the appellant did not attend, the tribunal disallowed the appeal, awarding low rate mobility component and middle rate care component from 29 March 2013 to 28 March 2015.  The appellant then requested a statement of reasons for the tribunal’s decision and this was issued on 24 November 2016.  The appellant 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 16 January 2017.  On 25 January 2017 the appellant 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 appellant submits that the tribunal has erred in law on the basis that:

(i)	She was not present at the tribunal hearing;

(ii)	The tribunal unfairly considered matters outside the relevant timeframe of 29 March 2013 to 20 January 2015;

(iii)	The tribunal unfairly considered all of her medical records whereas she had only consented to the release of restricted part of the notes;

(iv)	The tribunal made an irrational decision;

(v)	The tribunal did not apply the correct law, made perverse findings and mistakes of fact;

(vi)	The tribunal failed to exercise its inquisitorial jurisdiction;

(vii)	The tribunal did not give adequate reasons for tits decision;

(viii)	The tribunal had failed to properly apply my directions when remitting the case for determination in decision SG v Department for Social Development [2016] NI Com 23.

6.	The Department was invited to make observations on the appellant’s grounds.  Ms Adams of Decision Making Services (DMS) responded on behalf of the Department.  Ms Adams submitted that the tribunal had erred in law on a different basis to any ground submitted by the appellant, and indicated that the Department supported the application.  The basis for the support of the Department was that the tribunal had not adequately dealt with the issue of high rate care component and had not given adequate findings and reasons for its decision on this aspect of the claim.  The appellant in turn responded to Ms Adams’ submissions, and Ms Adams replied.

7.	In light of the submissions on the question of whether high rate care component should have been considered by the tribunal I accept that there is an arguable point of law arising, and I grant leave to appeal.

	The tribunal’s decision

8.	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, containing the claim form and factual reports from the appellant’s GP and physiotherapist, together with various submissions and written information submitted by the appellant.  The tribunal further had sight of the appellant’s medical records.  The appellant did not attend the hearing due to ill health but relied on the written submissions to the tribunal.  The tribunal noted that, while it had previously adjourned to encourage the appellant to give oral evidence, she had consented to it proceeding in her absence.  The tribunal noted that the appellant – having been awarded middle rate care component and low rate mobility component - only wished it to consider the aspect of high rate mobility component.  In addition the tribunal noted that the appellant had subsequently been awarded high rate mobility component from 21 January 2015 to 20 January 2017, meaning that it was dealing with a closed period from 29 March 2013 to 20 January 2015.

9.	In the absence of the appellant, there was no oral evidence.  The tribunal considered the appellant’s medical records in some detail.  It considered the restrictions described by her in her claim form of 14 January 2013.  It considered the GP factual report of 8 February 2013 and the physiotherapy report of 26 March 2013.  It further took note of a physiotherapy discharge report which indicated that the appellant had responded excellently to hydrotherapy, was fully independent with her exercise programme including aqua jogging and used the local pool daily.  The tribunal observed the evidence of flare-ups of neck pain, which was to the effect that a flare-up lasting 12 weeks occurred every 3-4 weeks.  The evidence of Dr I… was that the appellant sometimes experienced an increase in pain when she walked.  The evidence of Dr M… was that the appellant experienced shortness of breath on moderate exertion.  The tribunal found that this meant that the appellant was able to walk without pain and was not short of breath on minimal exercise, concluding overall that the appellant was not virtually unable to walk.

	Relevant legislation

10.	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

11.	The appellant submits a number of grounds, as set out above.  She has elaborated on these in further written submissions. 

12.	I directed an oral hearing on the specific issue raised by both parties, namely the question of whether the tribunal should have considered the high rate care component.  The appellant did not attend the hearing before me due to ill health. I heard submissions from Ms Adams.  Before I deal with that aspect of the case in detail, I shall consider the unsupported submissions of the appellant.

13.	Firstly, the appellant submits that there was procedural unfairness in the conduct of her appeal as she was not present at the tribunal hearing of 26 September 2016.

14.	The appellant had written to the tribunal in advance of the hearing saying, “The appellant will not be attending the proposed hearing in Enniskillen due to ill health reasons… The appellant consents to the tribunal proceeding in her absence”.

15.	She submits that she felt obliged not to ask for an adjournment as she felt under duress, due to words used by the tribunal when adjourning a previous hearing on 8 June 2016.  On that occasion the tribunal observed that the appellant had qualified her consent to it proceeding without her.  She had said, “I trust that if the tribunal is considering making a negative judgment… in my absence that I will be given the chance to clarify any discrepancies the tribunal may have before finalising any decision of a negative outcome to my appeal”.  By qualifying her consent to the tribunal proceeding in her absence, the appellant was effectively saying that she did not so consent if the tribunal was minded to find against her, and required to be given an opportunity to make oral submissions in such an eventuality.  The appellant had used a similar expression at an earlier stage in the proceedings.  This form of words qualified her consent to the tribunal proceeding in her absence and led in part to the decision of the previous tribunal being set aside, as the earlier tribunal did not engage with the qualified nature of the consent to proceed in absence.

16.	On 8 June 2016, the tribunal was correctly concerned to point out that it did not accept the qualified basis on which the appellant wished to proceed.  The tribunal had said, “Inexcusable delay is not acceptable and is [a] strong impediment to justice and fairness in any proceedings”.  It adjourned in order to give the appellant the opportunity to attend a new hearing, while indicating that the case would not be adjourned further on the basis of qualified consent.

17.	No application for postponement or adjournment of the hearing of 26 September 2016 was made.  It is for the LQM of the tribunal to determine the procedure at an oral hearing under regulation 49 of the Social Security and Child Support (Decisions and Appeals) Regulations (NI) 1999.  By regulation 49(4), if a party fails to attend a hearing, the tribunal may proceed in the absence of that party.  It is clear that the tribunal discussed what to do in the appellant’s absence, noted that the appellant had agreed to the tribunal proceeding in her absence and decided to proceed with the hearing having regard to all the circumstances.  I do not consider that the tribunal has arguably proceeded unfairly.  It cannot have known what influenced the appellant’s decision not to apply for a further postponement.  I consider that the tribunal’s statement about inexcusable delay is not directed at any particular party and is a neutral statement of principle.  I do not consider that it is arguable that the tribunal has proceeded unfairly in all the circumstances of the case.

18.	Secondly, the appellant submits that the tribunal did not observe the rules of natural justice.  Specifically, she submits that the tribunal failed to inform the parties that it would address matters outside the relevant timeframe of 29 March 2013 to 20 January 2015.  This is a reference to the tribunal’s consideration of entries in the appellant’s medical records.  The appellant submits that she had no knowledge of or access to this material.  She further submits that she gave consent only to part of her notes being released to the tribunal, whereas the tribunal had access to all of her records.

19.	The tribunal had an obligation to consider all the evidence before it.  The appellant had given consent to the tribunal seeing her medical records.  While the tribunal was addressing the issue of entitlement for the period from 29 March 2013 to 20 January 2015, it was entitled to consider all evidence that tended to establish the circumstances obtaining during that period, whether or not it originated within that period.  I see no unfairness arising from the fact of the tribunal considering objective and relevant medical evidence.

20.	In order to understand the second aspect of this submission, I requested sight of the medical records consent form issued to the appellant by the Appeals Service.  This was signed by the appellant on 17 April 2016.  She has ticked a box which indicates “There are parts of my notes which I do not want to release to the Appeal Tribunal.  I will discuss this with my doctor”.  It is understandable that a party to a tribunal might wish certain aspects of their medical records to remain private.  I acknowledge that this was her wish.  However, the appellant would have needed to discuss this wish with her doctor in order to put it into effect.  If she did not do that, or did but by an oversight at her doctor’s surgery the relevant information was not withheld, I do not consider that it is arguable that this was an error of law by the tribunal.  The appellant had not identified any sensitive information that was released or any effect that it had on the fairness of the tribunal proceedings.  I do not consider that she establishes an arguable error of law on this basis.

21.	Thirdly, the appellant submits that the tribunal made a decision which was unsupported by evidence, disregarded essential facts, failed to take into account further relevant facts, misinterpreted evidence and took into account irrelevant evidence.  In this context she submits that the tribunal failed to act inquisitorially and to deal with the question of how likely it was that the appellant’s condition had improved [since she was previously awarded high rate mobility component].  She submits that the tribunal did not consider the evidence in connection with falls and did not properly consider the effect of neck pain on her mobility.

22.	In relation to the first specific aspect raised under this ground, the tribunal referred to the previous award of high rate mobility component and indicated that this did not give rise to any presumption in the claimant’s favour.  It found that there was no evidence whatsoever in medical reports that the appellant’s conditions affected her to such an extent that she was unable to walk or virtually unable to walk.  A tribunal is charged with determining entitlement at the dates relevant to a particular appeal.  It is not required to establish that there has been a change in circumstances, other than in a supersession appeal.

23.	The appellant submits that the tribunal did not deal with the issue of falls.  In her renewal claim she referred to fear of falling, arising from vertigo and dizzy spells.  The tribunal referred to unpredictable flare-ups of vertigo.  It maintained the award of low rate mobility component, which was premised on anxiety and increased risk of falling.  I accept that the tribunal did not refer to falls in the specific context of high rate mobility.  However, there were multiple conditions relied upon by the appellant and most of the appellant’s case was premised on walking limitations arising from factors other than falls.  In order to succeed on the issue of falls, the appellant would have needed to persuade the tribunal that the manner of the appellant’s walking was impeded by falls to the extent that she was virtually unable to walk.  The evidence did not indicate this. I cannot fault the tribunal for not specifically referring to the issue of falls in the context of high rate mobility.  It is clear that it has been aware of the issue and has made a reasoned decision which is open to it on all the evidence.

24.	The appellant further submits that the tribunal had failed to deal properly with the issue of mobility restrictions arising from neck pain.  On any objective reading of the statement of reasons, this is simply not arguable.

25.	Fourthly, the appellant submits that the tribunal did not apply the correct law to her case.  This point is developed by reference to the comments of Ms Hulbert of the Department in response to the application made by the appellant in her previous proceedings in SG v Department for Social Development [2016] NI Com 23.  It concerns the question of whether the tribunal should have considered the high rate care component, the point further raised by Ms Adams in the present proceedings, and I will deal with it below.

26.	Also under this heading she submits that the facts did not justify the conclusion drawn and that the tribunal made numerous misinterpretations of evidence.  The appellant refers to the physiotherapy report of Mr O…, which the appellant submits dealt with a period other than the period in issue and with a specific condition of neck pain.  She submits that the report did not address the cumulative effect of all her medical conditions.  As far as the physiotherapy report is concerned, I am satisfied that the tribunal was entitled to consider it and to draw any relevant conclusions from it.  Giving consideration to Mr O…’s report, among other evidence, did not demonstrate any failure to apply correct law to the case.  I am satisfied that the tribunal did not reach an irrational decision which was not supported by the evidence, and that no material misinterpretation of evidence is evident from the tribunal’s decision.

27.	Fifthly, the appellant submits that the tribunal erred by failing to exercise its inquisitorial role in connection with co-existing cumulative medical conditions and their effects as a whole.  She submits that the tribunal did not resolve conflicts in opinion or evidence and that it failed to investigate the effects of fatigue and of the appellant’s medication.

28.	The optimum way for a tribunal to exercise its inquisitorial role is for it to ask questions of an appellant concerning the facts relevant to the appeal.  It is difficult to see what more it could have done with the documents before it, since they do not answer questions, in order to fulfil its inquisitorial role.  I see nothing to suggest that the tribunal has not engaged with the totality of the evidence before it in order to assess the cumulative effect of the appellant’s medical conditions on her care and mobility needs.  I can see no way in which it could have determined the issues before it differently.  I consider that the appellant’s submissions relating to fatigue and to side effects of medication amount to a re-arguing of the facts before the tribunal and do not demonstrate arguable error of law.

29.	Sixthly, the appellant submits that the tribunal did not give adequate reasons.  It is not obvious from her submissions what aspect of the reasons given by the tribunal is said to be inadequate.  She elaborates on this point by way of submissions addressed to the relevance and reliability of the evidence of the physiotherapist.  In this regard, it appears that the appellant is taking issue with the merits of the reasoning of the tribunal as opposed to the comprehensibility of its reasons.  I do not consider that it is arguable that the reasons of the tribunal are not adequate.

30.	Finally, the appellant submits that the tribunal has not had regard to directions which I gave in a previous appeal in which the issue of the variability of the appellant’s condition was addressed (SG v Department for Social Development [2016] NI Com 23).  I remitted the appeal to a newly constituted tribunal.  In remitting the appeal I did not rule that the previous tribunal had erred in law.  It appeared in all the circumstances on that occasion that it was appropriate to exercise my power under Article 15(7) of the Social Security (NI) Order 1998 to set aside the decision of the tribunal on the basis that the appellant and Department agreed that the tribunal had erred in law.  I gave no specific directions, except to encourage the appellant to attend the hearing of her appeal.  I do not consider that she established an arguable error of law under this heading.

31.	Returning to the matter referred to above, which was raised by Ms Hulbert in the proceedings in SG v Department for Social Development [2016] NI Com 23, and now by Ms Adams in the present appeal, there is the question of whether the tribunal has erred in law by not addressing the issue of entitlement to the high rate care component.

32.	In this case, the appellant completed a DLA renewal claim form and at pages 29, 30 and 31 she answered the questions aimed at adducing information relevant to the high rate care component.  Her answers indicated that she required between 7 and 11 hours attention each night in connection with the bodily functions of turning in bed, sleeping comfortably, toilet needs, incontinence needs, taking medication, with treatment or therapy and with reminding about medication or medical treatment.  She further stated that she needed someone to be awake to watch over her for between one and two hours in order to prevent danger to herself or others and because of confusion.

33.	The appellant was awarded low rate mobility component and middle rate care component.  In the appellant’s letter of appeal, she stated that “I do not wish to appeal the current decision giving me entitlement to middle rate care.  I am only asking for a revision of the “mobility component” [her emphasis].

34.	A relevant provision is Article 13(8)(a) of the Social Security (NI) Order 1998. Article 13(8)(a) provides that: 

(8) In deciding an appeal under this Article, an appeal tribunal— 

(a) need not consider any issue that is not raised by the appeal; …

35.	In this case, a relevant question is whether the issue of entitlement to the high rate care component was “raised on the appeal”, within the meaning of Article 13(8)(a).  This phrase was considered by the Court of Appeal in the case of Mongan v Department for Social Development [2005] NICA 16. Lord Kerr said at paragraph 14,

“The terms of article 13 (8) (a) of the 1998 Order make it clear that issues not raised by an appeal need not be considered by an appeal tribunal.  The use of the phrase "raised by the appeal" should be noted.  The use of these words would tend to suggest that the tribunal would not be absolved of the duty to consider relevant issues simply because they have been neglected by the appellant or her legal representatives and that it has a role to identify what issues are at stake on the appeal even if they have not been clearly or expressly articulated by the appellant.  Such an approach would chime well with the inquisitorial nature of the proceedings before the tribunal”.

36.	He further said 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 inquiry 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”.

37.	The question in Mongan was whether, when the high rate mobility component had been claimed, but low rate mobility component had not expressly been claimed, a tribunal might nevertheless have an obligation to investigate that matter when an adverse decision on the high rate had been reached.  Even though the parties in that case had not raised the issue of low rate mobility, the Court of Appeal held that it was raised by the appeal if it was clearly apparent from the evidence that it might be relevant.  This finding by the Court of Appeal was obviously made in the claimant’s interests.

38.	The issue here is somewhat different.  By her letter of appeal, the appellant sought to protect her existing entitlement to middle rate care component and only to contest the decision refusing high rate mobility.  Whereas the appellant had raised the high rate care component in her renewal claim, she expressly did not raise it on the appeal.  Her reasons for doing that are doubtless that, had the tribunal opened the issue of entitlement to the care component it might have reduced her entitlement and left her more dissatisfied with her award than before the appeal. Article 13(8)(a) gives a discretion to tribunals which serves two sensible purposes.  Firstly, it avoids the tribunal having to address issues which are not disputed and, secondly, it encourages appeals which are confined to discrete aspects of entitlement by protecting awards already made.  It has a useful purpose therefore of making tribunal hearings more efficient and of encouraging the exercise of appeal rights where part of an award might otherwise be at risk.

39.	It seems to me that this was not the type of case envisaged by the Court of Appeal in Mongan.  In the light of the clear intentions expressed in the letter of appeal, the appellant was satisfied with the middle rate care component and the issue of high rate care component was not raised by the appeal.

40.	Even if I am wrong about that, it seems to me that the investigation by the tribunal in this case reached the threshold of a “perfunctory examination” as required by the Court of Appeal.  The tribunal stated “The Tribunal did not believe that an award of the High Rate Care Component was appropriate in any event for the appropriate period and solely concentrated its deliberations on the issue of the award of the High Rate Mobility Component”.  This was not a case where no consideration was given to the high rate care component.

41.	I do not consider that the tribunal has erred in law on any of the grounds advanced by the parties and it follows that I must disallow the appeal.

(signed):  O Stockman

Commissioner

16 February 2018