CD-v-Department for Communities (PIP) [2018] NICom 30

Decision No:  C5/18-19(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 4 August 2017

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 4 August 2017 is in error of law. The error of law identified will be explained in more detail below.

2.	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. 

3.	I am able to exercise the power conferred on me by Article 15(8)(a)(ii) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given as I can do so having made fresh or further findings of fact.

4.	My substituted decision is that the appellant is entitled to the standard rate of the daily living component and the standard rate of the mobility component of Personal Independence Payment (PIIP) from 12 April 2017 to 11 April 2019.

	Background

5.	On 11 March 2017 a decision maker of the Department decided that the appellant was not entitled to PIP from and including 13 January 2017. Following a request to that effect the decision dated 11 March 2017 was reconsidered on 5 March 2017 but was not changed. An appeal against the decision dated 11 March 2017 was received in the Department on 19 April 2017.

6.	The appeal tribunal hearing took place on 4 August 2017. The appellant was present and was accompanied by her daughter.  There was no Departmental Presenting Officer present.  The appeal tribunal allowed the appeal in part, making an award of entitlement to the mobility component of PIP at the standard rate but disallowing entitlement to the daily living component of PIP.  The appeal tribunal did apply a descriptor from Part 2 of Schedule 2 to the Personal Independence Payment Regulations (Northern Ireland) 2016 (‘the 2016 Regulations’) which the decision maker had not applied.  The score for this descriptor, combined with the scores for two descriptors which had been applied by the decision maker, was insufficient for an award of entitlement to the daily living component of PIP at the standard rate – see article 83 of the Welfare Reform (Northern Ireland) Order 2015 and regulation 5 of the 2016 Regulations.   

7.	On 29 November 2017 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS).  On 13 December 2017 the application for leave to appeal was refused by the Legally Qualified Panel Member (LQPM). 

	Proceedings before the Social Security Commissioner

8.	On 23 January 2018 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  The appellant was represented in this application by Mr O’Farrell of the Citizens Advice organisation.  On 7 February 2018 observations on the application were requested from Decision Making Services (DMS).  In written observations dated 21 February 2018, Mr Arthurs, for DMS, supported the application on two of the grounds advanced on behalf of the appellant. 

9.	The written observations were shared with the appellant and Mr O’Farrell on 23 February 2018.  E-mail correspondence was received from Mr O’Farrell on 2 March 2018.  In this correspondence, Mr O’Farrell noted the Departmental support for the application and requested that in light of that support the Commissioner should consider making the decision which the appeal tribunal ought to have made. 

10.	On 12 April 2018 an amended version of the written observations was received. The amendments were not substantive.

11.	On 15 May 2018 Mr O’Farrell’s e-mail correspondence of 2 March 2018 was shared with Mr Arthurs with a request for his views as to whether it was appropriate for the Commissioner to make the decision which the appeal tribunal ought to have made.  In an e-mail response dated 16 May 2018, Mr Arthurs submitted that if the Commissioner agreed with the Department’s submission that the decision of the appeal tribunal was in error of law and that the Commissioner was of the view that additional points should be awarded through the application of descriptors 5(b) and 9(c) then the Commissioner might wish to consider substituting his own decision.  Mr Arthurs added that the Department would have no objection to this course of action. 

12.	On 22 June 2018 I granted leave to appeal.  When granting leave to appeal I gave as a reason that the second and third grounds of appeal, as set out in the application for leave to appeal, were arguable.  On the same date I determined that an oral hearing of the appeal would not be required.

	Errors of law

13.	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?

14.	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 submissions of the parties

15.	The second and third grounds of appeal advanced on behalf of the appellant were as follows:

‘Secondly, the Tribunal, in investigating Activity 5 (Managing Toilet needs and Incontinence), concerned itself solely with my physical ability to use a toilet.  In my PIP2 claim form and in the PA4 V3 capita report, I stated that I had to use incontinence pads and was referred to the Continence Advisory Service.  I see nothing within the Statement of Reasons and Record of proceedings to indicate that the Tribunal had assessed my need for these aids in dealing with my incontinence issues.  I have no doubt that from the GP notes and records, to which I had given the Tribunal full access, the evidence of my referral to said service and the reasons for same, would be obvious.

Furthermore, I believe the Tribunal has erred in its award of descriptor (b) rather than descriptor (c) of activity 9 (Engaging with others face to face).  There was no regard for the experience of my daughter, upon whom I am solely reliant on, in helping me cope with any form of social engagement.  I believe that Judge Hemingway in [2016] UKUT 0147 (AAC) has addressed this issue and I believe that, taking into account this decision, the proper award for this particular activity would be 9 (c).’

16.	In his written observations in response to these grounds of appeal, Mr Arthurs made the following submissions:

‘Issue 2

The tribunal has erred in its inquisitorial duty, having failed to consider her incontinence and the aids and assistance necessary to deal with this.

In (the appellant’s) claim form she recorded that she uses incontinence pads due to her proneness to soil herself. She also requires her daughter’s assistance in cleaning up after such an incident, as well as helping her put on new incontinence pads. 

The Disability Assessor does note this in their report, however they make reference to the General Practitioner Factual Report and the lack of any prescribed aids or treatments.  There does not appear to be any diagnoses of incontinence in any of the medical evidence presented that was available to the tribunal.  The Assessor’s medical report, in ‘History of Conditions’, notes that: 

“…….she was diagnosed with weak bladder in 2009 by GP after presenting with symptoms of loss of control of bladder. It was treated with pads and she was referred to a Continence advisory service, she missed 2 appointments due to anxiety and was discharged.  She has been referred and is awaiting an appointment at present.  Treatment was found to have no effect.  Current symptoms are loss of control a couple of times a day. Current treatment is incontinence pads.  This condition is monitored by GP.  Next review is due routinely.  She reports no fluctuation in symptoms giving rise to all days being the same.  Today is a typical day.  No hospital admissions hospital in the last 12 months.  No functional impact.” 

In her Appeal letter of 18 April 2017 (the appellant) states, in the handwritten notes on the attached copy of the Mandatory Reconsideration Notice, that her mother 

“ has week blater and wheres nappys [sic] – I help her all the time due to her arm and back pain.”

The tribunal could also have referred to Upper Tribunal Judgment BS v The Secretary of State for Work and Pensions (PIP) [2016] UKUT 0456 (AAC) in which Judge Rowley stated: 

“1. Does a claimant who needs to use incontinence pads to be able to manage incontinence fall within descriptor 5b of the daily living activities of PIP?  I have decided that the answer to this question is yes.”

and

“9. It seems to me that an incontinence pad falls squarely within the definition of an “aid.”  It constitutes a device which improves a claimant’s impaired physical function of control of the bladder or bowel.”

In support of his views Judge Rowley goes on to refer to various Government consultations and guides.

Part 2 of The Personal Independence Payment Regulations (Northern Ireland) 2016, sets out the various daily living activities and associated descriptors under which points may be scored.  Descriptor 5b of the Daily Living Activities provides that a person shall score 2 points where they need to use an aid or appliance to be able to manage toilet needs or incontinence. 

With (the appellant) having identified the use and necessity of incontinence pads, and with knowledge of the classification of incontinence pads as aids I believe that the tribunal has erred in law by not making further enquiries with the claimant at the minimum, and could have erred in law by not awarding the 2 points as required by The Personal Independence Payment Regulations (Northern Ireland) 2016.

In view of the above I would agree that the tribunal has erred in law in failing to fulfil its inquisitorial role. 
 
Issue 3

The tribunal has erred in the award of points under the daily living activity ‘Engaging with others face-to-face’; descriptor 9 (c) was the appropriate descriptor rather than 9(b).

The tribunal awarded two points under descriptor 9 (b) Engaging with other people face to face.  The claimant feels that a more suitable award would be 9 (c) for four points.  The reasoning behind this is that (the appellant) requires social support, provided by her daughter …, to undertake any effort to engage with other people.

Initially, I will draw attention to the mental conditions extracted from the General Practitioner notes and records, as per the Record of Proceedings:

“Anxiety state, crippling, unable to attend family events, funerals, weddings, dependant on other for shopping, rarely leaves house.”

Descriptor 9(b) provides that the claimant

“Needs prompting to be able to engage with other people

Whilst descriptor 9 (c) provides that the claimant:

“Needs social support to be able to engage with other people”

Social Support is defined in Schedule 1 of the Personal Independence Payment Regulations (NI) 2016 as follows:

“social support” means support from a person trained or experienced in assisting people to engage in social situations”

In their decision the tribunal for (the appellant’s) appeal stated that:  

“On the evidence the Tribunal accepted that (the appellant) needed prompting to be able to engage with other people.  The Tribunal concluded that (the appellant) could engage with other people with the support of her family and that she did not require support from a person trained or experienced in assisting people to engage in social situations.”

The inference of the tribunal’s decision is that a family member’s ability is limited to prompting, and social support can only be provided by an individual/individuals trained or experienced in assisting people to engage in social situations i.e. a professional.

The definition of ‘social support’ has previously been a point of contention in SL v The Secretary of State for Work and Pensions (PIP) [2016] UKUT 0147 (AAC), and this is referred to by the claimant in their request for leave to appeal to the Commissioner.  In this decision Judge M R Hemmingway states in paragraph one that:

“1. The primary issue which I have considered in this decision and the only one which may be of wider interest to persons other than the parties, is whether or not “social support” for the purposes of descriptor 9(c) relates only to assistance provided by a person who has relevant training or specific expertise (perhaps obtained professionally) or whether the requirements of the descriptor may be met, in appropriate circumstances and on appropriate findings, if the social support received is from friends or family.  I have concluded, for reasons which are set out below, that the concept of “social support” is not limited to support provided by persons with particular training or expertise or which is provided professionally and that the descriptor may, indeed be satisfied on appropriate findings where the support is provided by family or friends.” 

Judge Hemmingway proceeded to outline the reasons for his decision in paragraphs 19 to 23 where he states:

19.	The descriptor itself, on a plain reading, does not give a clue as to who it is envisaged will be supplying the social support.  The definition within Schedule 1 refers to “a person trained or experienced in assisting people to engage in social situations”.  The use of the word “or” makes it entirely clear that such a person does not have to be trained and that experience without training will do. There is nothing in that definition to suggest that the experience necessary has to be derived from any sort of professional work and there is nothing in the wording to point to lay persons, such as family or friends, being excluded so long as they do, as a matter of fact, have the requisite experience.  I did wonder whether the words “assisting people” (my underlining) might point to the provider of the social support having to have experience of providing support for more than one person, which might be thought to support the proposition that the provider has to be engaged in providing support in some professional capacity as opposed to a person whose experience is simply derived from supporting one person close to him or her (perhaps a partner).  However, I think the word “people” is probably simply there to indicate that the person providing the support does not have to be providing it only to one person.  So a reading of the relevant definition when taken alongside the wording in the descriptor itself points to it being perfectly permissible for the support to come from a lay person who has derived experience simply from assisting an individual close to him or her. That is, in my view, of itself sufficient to resolve the matter in favour of the appellant.

20.	Additionally and in any event, there is the Government’s response to the consultation on the personal independence payment assessment criteria.  As Ms Pepper points out, the part of that document from which she quotes is entirely supportive of the contentions made on behalf of the appellant to the Upper Tribunal.  It clearly and strongly supports the contention that it was the intention, when the relevant definition and the descriptor were drafted, that the support could be provided by a friend or family member who had derived experience of providing such support to a single individual on an informal basis.  I would not go so far as to say that the content of the Government’s response will always be determinative of this sort of interpretation issue as Ms Pepper appears to suggest, but it is certainly, in my view, relevant to interpretation because it demonstrates the intention behind the definition.  So, if it is necessary to take a purposive view that too leads to the appellant succeeding on ground 1. 

21.	Finally, on this point, there is the decision of the Upper Tribunal in PR, cited above.  In that decision Judge Mark, said this:

“29.	On this appeal, both the representative of the claimant and the representative of the Secretary of State have drawn my attention to p.38 of the Government’s response to the consultation on PIP assessment criteria where it is stated ‘some respondents were concerned that our definition of social support excludes friends and family.  This is not the case, we recognise the importance of friends and family and that is why our definition of social support is:  ‘support from a person trained or experienced in assisting people to engage in social situations’.  By referring to ‘experienced’ we mean both people such as friends and family who know the individual well and can offer support, or those who do not know them but are more generally used to providing social support for individuals with health conditions or impairment.’  The representative of the Secretary of State states that this represents the present position of the Secretary of State and supports the contention made on behalf of the claimant that the tribunal failed to take into account support available from members of the claimant’s family, such as her sister‑in‑law.

30.	The problem with this in the present case is that almost all the evidence indicated that the claimant was getting very little support from members of her family who seem to have lacked any empathy with her.  On the evidence before the tribunal, I can see nothing to indicate that there was any member of her family who could be described as experienced in assisting people to engage in social situations, or at any rate if they were so experienced they do not appear to have deployed that experience very much to assist the claimant. 

31.	That, however, is not the end of the matter.  There is nothing in the descriptor to suggest that the social support has to be provided at the moment when the claimant might be expected to engage face‑to‑face with other people.  The claimant was clearly receiving social support from at least a support worker and a social worker, as I have described them, throughout the period in question.  The tribunal needed to ask not ‘were they there at the time of the engagement?’ but ‘would the claimant have been able to engage with other people without the social support she received?’ the tribunal erred in failing to ask the right questions.”

22.	It is not necessary, for the purposes of this appeal, for me to express any opinion at all as to whether Judge Mark was correct in his view that a person providing the social support did not have to be doing so at the point of engagement for the requirements of the descriptor to be met.  That has not been raised as an issue in this appeal to the Upper Tribunal. It does seem to me, though, that Judge Mark was not definitively deciding that social support could come from family or friends because, on the facts he did not have to, his having concluded that there was no evidence to indicate any meaningful support had ever been provided by such persons.  That is probably why the parties seem keen for me to rule on the point.  It does seem to me to be very likely that had he had to decide the issue he would have resolved it in the same way I have.  Certainly, there is nothing at all in what he had to say which would preclude the interpretation that the appellant’s representatives and, indeed, the representative of the Secretary of State urge upon me.

23.Putting everything together I am satisfied that on appropriate findings a friend, a family member or some other type of lay person can provide the requisite “social support” thus, enabling a claimant, on the right facts, to satisfy descriptor 9(c) without any form of professional or specialist input.  I so decide. It is worth pointing out though that the requirement for such a person to be “experienced” should not be ignored and evidence about the length of time a friend, family member or other lay person has been providing support and the frequency with which it is provided might well have to be evidenced before decision makers and first instance tribunals.”   

	Taking account of the reasoning in Judge Hemmingway’s decision it would appear that the assistance provided by (the appellant’s) daughter, would fall into the definition of social support.  It is therefore my submission that the tribunal has erred in law in its interpretation of daily living descriptor 9(c).’

	Analysis

17.	I agree with the judiciously prepared submissions and for the reasons which have been set out agree that the decision of the appeal tribunal is in error of law.  The principles in BS v the Secretary of State for Work and Pensions (PIP) and SL v the Secretary of State for Work and Pensions (PIP) have not been doubted – see the endorsement in paragraphs 4.237 and 4.241 of Volume 1 of Social Security Legislation 2017/2018.  I adopt and accept the reasoning and analysis in both decisions, which, in my view, properly reflect the law in Northern Ireland.

	My further findings in fact

18.	On the basis of all of the evidence which is before me I am satisfied that the appellant needs to use an aid or appliance to be able to manage toilet needs or incontinence.  In addition she needs social support to be able to engage with other people. 

	My substituted decision

19.	The appellant satisfies the requirements of descriptor 5(b) and 9(c) in Part 2 of Schedule 2 to the 2016 Regulations.  The appeal tribunal found that she also satisfied descriptors 3(b)(ii) and 4(b), and I endorse that finding.  The appellant’s combined score from the application of these descriptors is 9 Points.  Accordingly the appellant has limited ability to carry out daily living activities and satisfies the conditions of entitlement to the daily living component of PIP at the standard rate – see Article 83 of the Welfare Reform (Northern Ireland) Order 2015 and regulation 5 of the 2016 Regulations. 

20.	I have noted that the appeal tribunal had made an award of entitlement to the standard rate of the mobility component made by the appeal tribunal i.e. from 12 April 2017 to 11 April 2019.  Given that the date of claim was 13 January 2017 I sought clarification from the Department as the reason for the appeal tribunal’s award start date of 12 April 2017.  In e-mail correspondence dated 3 July 2018, Mr Arthurs made the following submission:  

‘The tribunal, in their decision, made an award of the mobility component from 12 April 2017.  Whilst it did not clarify how they arrived at this date, it would appear that it was taken from the Department’s submission in which they advised that (the appellant) had been disallowed PIP from 13 January 2017.  However in accordance with Regulation 17 of the PIP (Transitional Provisions) Regulations (NI) 2017, as she was receiving DLA (Middle Rate Care and Lower Rate Mobility from 26 Feb 2015 to 11 April 2017), she was entitled to receive this benefit for a further 28 days starting from the first payday after the DM made their determination.  In this case the determination was made on 15 March 2017, therefore (the appellant) was entitled to receive DLA until 11 April 2017.

In view of the above, should the Commissioner be mindful of making an award of PIP, any such award should be effective from 12 April 2017.’

21.	In light of this very helpful clarification, I am satisfied that the period of the award of entitlement to the standard rate of the daily living component should reflect the period of the award of entitlement to the standard rate of the mobility component made by the appeal tribunal i.e. from 12 April 2017 to 11 April 2019.

(Signed) K Mullan

Chief Commissioner

4 July 2018