EC-v-Department for Communities (DLA) [2018] NICom 8

Decision No:  C74/17-18(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 6 April 2017

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 Dungannon.

2.	For the reasons I give below, I grant leave to appeal.  I allow the appeal and set aside the decision of the appeal tribunal.  I remit the appeal to a newly constituted tribunal for determination.

REASONS

	Background

3.	The applicant claimed disability living allowance (DLA) from the Department for Social Development (the Department) from 22 July 2011 and was awarded high rate mobility component and middle rate care component for a four year period.  She made a renewal claim for the period from 22 July 2015 on the basis of needs arising from breast cancer and haemorrhoids.  The Department obtained a report from the applicant’s general practitioner (GP) on 6 July 2015.  On 16 July 2015 the Department decided on the basis of all the evidence that the applicant did not satisfy the conditions of entitlement to DLA from and including 22 July 2015.  The applicant appealed.

4.	The appeal was considered by a tribunal consisting of a legally qualified member (LQM), a medically qualified member and a disability qualified member.  After a hearing on 18 December 2015 the tribunal disallowed the appeal.  However, the decision of the appeal tribunal was later set aside by Chief Commissioner Mullan on 7 February 2017 and the appeal was remitted to a newly constituted tribunal for determination.

5.	The appeal was considered by a newly constituted tribunal, again consisting of a legally qualified member (LQM), a medically qualified member and a disability qualified member.  After a hearing on 6 April 2017 the new tribunal disallowed the appeal.  The applicant then requested a statement of reasons for the tribunal’s decision and this was issued on 26 June 2017.  The applicant 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 19 September 2017.  On 23 October 2017 the applicant applied to a Social Security Commissioner for leave to appeal.

	(The Department was renamed the Department for Communities from 8 May 2016).

	Grounds

6.	The applicant submits that the tribunal has erred in law on the basis that the new tribunal had considered the proceedings of the previous tribunal and was therefore not independent.

7.	The Department was invited to make observations on the applicant’s grounds.  Ms Coulter of Decision Making Services (DMS) responded on behalf of the Department.  Ms Coulter submitted that the tribunal had erred in law on the basis that it had not made specific findings as to the applicant’s speed and manner of walking and the distance and time she could walk without the onset of severe discomfort.  Ms Coulter indicated that the Department supported the application for 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 a factual report from the applicant’s GP, with a subsequent addition by the GP.  It further had sight of the applicant’s general practitioner records, a copy of the last tribunal’s summary decision and a copy of the decision of Chief Commissioner Mullan setting that tribunal decision aside.  The tribunal also had a copy of that tribunal’s statement of reasons, submitted by the applicant at hearing.

9.	The applicant claimed high rate mobility on the basis of severe pain from haemorrhoids.  The tribunal noted references to her participating in karate and yoga, but these were disputed by the applicant and the tribunal based no part of its decision on this.  The tribunal noted that the GP, while indicating that the applicant had constant pain and discomfort from piles, had made no reference to this impacting on walking, until a handwritten note to this effect was later produced at the applicant’s request.  She had been discharged from consultant care in December 2013, had been on holiday abroad in June 2015 without difficulty travelling, and had caring responsibilities for her four children and her parents, driving a 26-mile round trip to their home daily.  The tribunal decided that the applicant had exaggerated her evidence concerning the extent of her limitations.  It did not accept that she was virtually unable to walk.  It found that she had no attention needs or limitations cooking which would entitle her to the care component.  It disallowed the appeal therefore.

	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.
…

	The test for the mobility component is amplified in regulation 12 of the Social Security (Disability Living Allowance) Regulations (NI) 1991 (the DLA Regulations), as follows:

12.—(1) A person is to be taken to satisfy the conditions mentioned in section 73(1)(a) (unable or virtually unable to walk) only in the following circumstances—

(a) his physical condition as a whole is such that, without having regard to circumstances peculiar to that person as to place of residence or as to place of, or nature of, employment—

(i) he is unable to walk,

(ii) his ability to walk out of doors is so limited, as regards the distance over which or the speed at which or the length of time for which or the manner in which he can make progress on foot without severe discomfort, that he is virtually unable to walk, or

(iii) the exertion required to walk would constitute a danger to his life or would be likely to lead to a serious deterioration in his health; or

(b) he has had both legs amputated at levels which are either through or above the ankle, or he has one leg so amputated and is without the other leg, or is without both legs, to the same extent as if it, or they, had been so amputated.
…

	Assessment

11.	An appeal lies to a Commissioner from any decision of an appeal tribunal on the ground that the decision of the tribunal was erroneous in point of law.  However, the party who wishes to bring an appeal must first obtain leave to appeal. 

12.	Leave to appeal is a filter mechanism.  It ensures that only applicants who establish an arguable case that the appeal tribunal has erred in law can appeal to the Commissioner.

13.	An error of law might be that the appeal tribunal has misinterpreted the law and wrongly applied the law to the facts of the individual case, or that the appeal tribunal has acted in a way which is procedurally unfair, or that the appeal tribunal has made a decision on all the evidence which no reasonable appeal tribunal could reach.

14.	While not accepting the applicant’s principal ground of application, Ms Coulter for the Department submits that the tribunal erred in law because it has not made specific findings of fact relevant to the applicant’s ability to walk.  While making generalised findings about her lifestyle at the relevant time, and about the level of treatment the applicant received, it does not appear that it has made particular findings addressed the criteria in regulation 12 of the DLA Regulations.

15.	As stated by Upper Tribunal Judge Jacobs, in DC v Secretary of State for Work and Pensions [2009] UKUT 45, at paragraphs 21-22:

21.	The proper approach for a tribunal is to apply the statutory test in regulation 12(1)(a)(ii) of the Social Security (Disability Living Allowance) Regulations 1991 – is the claimant virtually unable to walk? In applying that test, it has to take account of such of the factors listed there – time, speed, manner and distance of walking - as are relevant to the case.  In addition, it has to consider any other factor that affects how the claimant makes progress on foot out of doors.  The legislation is drafted in broad concepts, not in terms of precise distances and times. [In this respect it is different from incapacity benefit and employment and support allowance, both of which require greater precision.]
22.	In order to apply that test, the tribunal has to make findings of fact on the relevant factors.  That involves analysing the evidence as a whole to the extent that it can properly be subjected to analysis.  The findings of fact can be made with no greater precision than the law requires and the evidence allows.  If that means that the findings cannot be expressed in terms of metres per minute or any other precise terms, so be it.  All that is necessary is that the findings should be sufficient to support the tribunal’s decision whether or not the claimant is virtually unable to walk…

16.	There is ambiguity in the applicant’s position, saying in her letter “I did not claim DLA on the basis that I could not walk or was virtually unable to walk, but because I was in constant pain”.  The mobility component of DLA, of course, is not awarded because someone is in constant pain.  It can only be awarded where that pain renders them unable to walk or virtually unable to walk.  By applying that test in isolation of specific findings about the distance, speed, time and manner of the applicant’s walking before the onset of severe discomfort, the Department submits that the tribunal has erred in law.  This is an arguable error of law and I grant leave to appeal on this basis.

17.	Whereas the applicant says that she did not claim DLA on the basis that she was virtually unable to walk, she stated in her claim form that she could not walk more than between 0 to 15 metres without severe discomfort, in 0 – 5 minutes, at a pace of 40-60 metres a minute, often in a “stalling” way.  Having considered the statements in the claim form, the medical evidence and aspects of the applicant’s lifestyle, the tribunal found that the applicant “was grossly exaggerating the extent of her limitations and that she was neither unable nor virtually unable to walk”.  The difficulty with the tribunal’s decision is that it moves to a conclusion on the statutory test on the basis of a rejection of the applicant’s evidence, but without making specific findings of its own.

18.	I consider that it has erred in law in that basis and that I must allow the appeal and set aside the decision of the appeal tribunal.  I remit the appeal to a newly constituted tribunal for determination.

(signed):  O Stockman

Commissioner

22 March 2018