EF-v-Department for Communities (PIP) [2018] NICom 36

Decision No:  C6/18-19(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 27 September 2017

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 27 September 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) 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

5.	On 3 April 2017 a decision maker of the Department decided that the appellant was entitled to the standard rate of the daily living and mobility components of PIP from 3 May 2017 to 6 March 2022. Following a request to that effect, the decision dated 3 April 2017 was reconsidered on 9 April 2017 but was not changed.  There followed further decision-making in the Department based on receipt of medical evidence relating to a claim to Disability Living Allowance (DLA) and supplementary medical reports.  Nonetheless, the substantive decision of 3 April 2017 remained the same.  An appeal against that decision was received in the Department on 16 May 2017.

6.	The appeal tribunal hearing took place on 27 September 2017. The appellant was present and was represented.  There was no Departmental Presenting Officer present.  The appeal tribunal disallowed the appeal and confirmed the decision dated 3 April 2017.

7.	On 2 March 2018 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.  On 13 March 2018 the application for leave to appeal was refused by the Legally Qualified Panel Member (LQPM).  

	Proceedings before the Social Security Commissioner

8.	On 12 April 2018 a further application for leave to appeal was received in the Office of the Social Security Commissioner.  On 3 May 2018 observations on the application were requested from Decision Making Services.  In written observations dated 21 May 2018, Mr Arthurs, for DMS, supported the application for leave to appeal on one of the grounds advanced by the appellant.  Written observations were shared with the appellant on 21 May 2018.  On 30 May 2018 further correspondence in reply was received from the appellant which was shared with Mr Arthurs on 30 May 2018.

9.	On 29 June 2018 I granted leave to appeal.  When granting leave to appeal I gave as a reason that it was arguable that the appeal tribunal had considered evidence which post-dated the decision under appeal in contravention of Article 13(8)(b) of the Social Security (Northern Ireland) Order 1998.  On the same date I determined that an oral hearing of the appeal would not be required.

	Errors of law

10.	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?

11.	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

12.	The appeal tribunal’s analysis was confined to potential entitlement to the enhanced rate of the mobility component of PIP.  In the statement of reasons for its decision, the appeal tribunal set out the following:

‘Also from the General Practitioner notes and records we noted in July 2017 at an asthma review clinic that although she was having both day and night symptoms of poor control that the limitations of her asthma were noted to be “walking up hills or stairs”.  A Peak Flow rate of 170 was prior to taking her inhaler which no doubt would have improved same.’    

13.	As was noted above, the decision under appeal to the appeal tribunal was a decision of the Department dated 3 April 2017.  Accordingly the evidence from the General Practitioner records dated 20 July 2017, which the appeal tribunal took into account in its reasoning, post-dated the decision under appeal. 

14.	Article 13(8)(b) of the Social Security (Northern Ireland) Order 1998 provides – 

‘(8) 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.’

15.	As was noted by Mr Arthurs, in paragraphs 7 to 8 of her decision in C24/03-04(DLA), Mrs Commissioner Brown set out the following principles in relation to Article 13(8)(b): 

‘7.This is a mandatory provision.  It prevents the Tribunal from taking account of circumstances not obtaining at the date of the decision under appeal.  It does not relate to evidence whenever it came into being, which is relevant to what the circumstances were up to the date of the relevant decision.  It does not prevent the Tribunal taking into account evidence obtained after the decision under appeal was made, for the purpose of drawing inferences as to the circumstances obtaining when or before the decision was made.  For example, if a claimant tells the Tribunal that his situation now is the same as it was at the date of the decision under appeal and produces evidence as to his present walking ability, why should that latter evidence if accepted not be used to determine the circumstances at the date of the claim? 

The Tribunal in deciding the appeal must not take into account circumstances which did not obtain at the time of the decision under appeal.  However, it is entitled to take account of any evidence which indicates what those circumstances were.

In this connection I would refer in particular to decision CDLA/4734/99, a decision of Mr Commissioner Jacobs in Great Britain.  As Commissioner Jacobs stated at paragraph 57 of that decision: -

“There is a difference between a circumstance and evidence of that circumstance.”

At paragraph 58 he stated: -

“Section 12(8)(b) [the Great Britain equivalent to Article 13(8)(b)] limits an Appeal 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, paragraph 9: -

“In the case of a claim for a 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.””

8. I can put the matter no better than Mr Commissioner Jacobs did in the above extract with the caveat as regards the final sentence in relation to which I would add only this, that the evidence may relate to the period over which the Tribunal has jurisdiction even though it also relates to a later time so long as it sheds light on the circumstances obtaining at the date of the decision under appeal.’

16.	Although, the principles in the cases cited above were in the context of DLA they are applicable, in my view, to how appeal tribunals in appeals relating to PIP should address the issue of consideration of evidence which post-dates the decision under appeal.

17.	I accept that it is arguable that the appeal tribunal had in mind the principles concerning the application of evidence which post-dates the decision under appeal and that it could be implied from the appeal tribunal’s reasoning that because the evidence which it did consider (i.e. the entry from the GP records dated 20 July 2017) was sufficiently close to the date of the decision under appeal (i.e. 3 April 2017) that it reflected the circumstances obtaining at that time.  What is significant, however, is that the appeal tribunal has adopted the July 2017 entry as part of its reasoning for its decision to refuse entitlement to the enhanced rate of the mobility component of PIP.  It did so without providing a specific indication as to why it concluded that July 2017 was reflective of the circumstances obtaining in April 2017.  In this regard, it is important to note that peak flow rates for the assessment of the symptoms of asthma can and do fluctuate.

18.	Accordingly, and with some regret given the appeal tribunal’s careful and judicious management of the other aspects of the appeal, I find that the decision of the appeal tribunal is in error of law.

19.	I would add that I would not have found the decision of the appeal tribunal to be in error of law on the other grounds advanced by the appellant.
  
Disposal     
 
20.	The decision of the appeal tribunal dated 27 September 2017 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. 

21.	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 3 April 2017, which decided that the appellant was entitled to the standard rate of the daily living and mobility components of PIP from 3 May 2017 to 6 March 2022;

		(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

	23 July 2018