NMcC-v-Department for Social Development (DLA) [2010] NICom 94
Decision No:  C61/10-11(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 17 June 2009

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	Having considered the circumstances of the case, I am satisfied that the application can properly be determined without a hearing.

2.	I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.

3.	The decision of the appeal tribunal dated 17 June 2009 is in error of law.  The error of law identified will be explained in more detail below.

4.	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.

5.	I am able to exercise the power conferred on me by Article 15(8)(a)(i) 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 having made further findings of fact.

6.	My substituted decision is that the appellant satisfies the conditions of entitlement in section 72(2)(b)(i) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 and, accordingly, is entitled to the middle rate of the care component of disability living allowance (DLA).  I limit the award to the period from 2 October 2008 to 1 April 2010.

Background

7.	On 10 February 2009 a decision-maker of the Department decided that the applicant was entitled to the lowest rate of the care component of DLA from 2 October 2008 to 1 April 2010.  An appeal against the decision dated 10 February 2009 was received in the Department on 23 February 2009.

8.	The substantive appeal tribunal hearing took place on 17 June 2009.  The applicant was present with her partner and was represented.  The appeal tribunal disallowed the appeal and confirmed the decision dated 10 February 2009.

9.	On 1 October 2009 an application for leave to appeal to the Social Security Commissioner was received in The Appeals Service.  On 12 October 2009 the application for leave to appeal was refused by the legally qualified panel member (LQPM).

	Proceedings before the Social Security Commissioner

10.	On 20 November 2009 a further application for leave to appeal to the Social Security Commissioner was received in the Office of the Social Security Commissioners and Child Support Commissioners.

11.	On 25 February 2010 observations were sought from Decision Making Services (DMS) and these were received on 24 March 2010.  DMS opposed the application on most of the grounds submitted by the applicant.

12.	Observations were shared with the applicant and the applicant’s representative on 20 April 2010.  On 20 May 2010 a further submission was received from the applicant’s representative which was shared with DMS on 3 June 2010.  A further submission was received from DMS on 18 June 2010.

	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.

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.”

	Was the decision of the appeal tribunal in the instant case in error of law?

	The submissions of the parties

15.	In the application for leave to the Social Security Commissioner, the appellant’s representative has submitted that the decision of the appeal tribunal is in error of  law on the basis that:

(i)	the appeal tribunal failed to properly consider and explain disputes between the evidence.  Although the statement of reasons indicates that the tribunal noted the contents of the letters from the general practitioner (GP) and rheumatologist, it failed to properly consider and explain the disputes between the evidence.

(ii)	with regards to an award of middle rate care component, the tribunal did not consider the pattern of needs required throughout the day nor did they give an indication of the length of time spent on these care needs;

(iii)	given the support from the GP and rheumatologist, the tribunal failed to explain why it felt the examining medical practitioner’s (EMP’s) indication that the claimant can cope alone in the toilet is more reliable;

(iv)	with regards to the mobility component, some of the facts recorded in the statement of reasons are disputed.

16.	The applicant’s representative expanded on these arguments in a further submission in reply to the written observations from DMS.

17.	In written and further observations, DMS opposed the application for leave to appeal on all of the grounds submitted by the appellant’s representative.

	Analysis

18.	I would begin by recording that I find no fault with the appeal tribunal’s decision with respect to the mobility component of DLA, and the statement of reasons for that decision.

19.	In respect of the mobility component, it is clear that the appeal tribunal undertook a rigorous and rational assessment of all of the evidence before it.  The appeal tribunal gave a sufficient explanation of its assessment of the evidence, explaining why it took the particular view of the evidence which it did.  Any conflict in the evidence before the appeal tribunal has been clearly resolved and explained.  The appeal tribunal made sufficient findings of fact, relevant to its decision, all of which are wholly sustainable on the evidence, and all of which are supported by relevant evidence.  None of the appeal tribunal’s findings are irrational, perverse or immaterial.  All issues raised in respect of the mobility component, either expressly or apparent from the evidence were fully examined by the appeal tribunal in conformity with its inquisitorial role.  The appeal tribunal’s application of the applicable legal rules and principles was wholly accurate.

20.	The challenge by the applicant’s representative to the appeal tribunal’s decision with respect to the mobility component of DLA is predicated on disagreement with the recording of the evidence from the applicant in respect of distances which she stated she could walk.  I do not think that the challenges which have been made by the appellant’s representative are justified.  Having considered the record of proceedings and the appellant’s renewal claim to DLA, I am of the view that the record of the evidence made by the LQPM is as inaccurate as has been submitted by the appellant’s representative.

21.	In any event, it is important to note that distance is but one factor to be taken into account in assessing whether an individual satisfies the conditions of entitlement to the higher rate of the mobility component of DLA.  In this respect the comments of Commissioner Rowland in CDLA/4388/1999, a Great Britain case, at paragraph 4, are apposite:

‘Too much weight tends to be put upon the distance a person can walk when that is but one of four criteria and I suspect that is because estimates of distance are considered to be precise.  In reality, a precise finding as to the distance a person can walk is no more attainable than a precise finding as to the speed of walking.  Estimates are usually of doubtful accuracy and walking ability may be variable.’

22.	In my view, read as a whole, the statement of reasons for the appeal tribunal’s decision with respect to the mobility component provides a detailed explanation of the basis on which the appeal tribunal arrived at its conclusions on the issues before it.

23.	In relation to the appeal tribunal’s reasons with respect to the care component of DLA, the major part of the reasons is taken up with a recital of the evidence which was before the appeal tribunal.  That evidence included two reports which had been adduced by the appellant’s representative specifically for the appeal tribunal hearing.  In the final paragraph, the appeal tribunal gives its reasons in relation to its decision with respect to the care component of DLA.  After accepting that the appellant should have an entitlement to the lowest rate of the care component on the basis of either of the two tests set out in section 72(1)(a) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended.

24.	The appellant, of course, was seeking an entitlement to the middle rate of the care component of DLA.  The appeal tribunal’s reasons for rejecting entitlement to the middle rate of the care component were as follows:

‘… However the Tribunal did not accept that throughout the day she required frequent attention from another person in connection with her bodily functions, or that she required continual supervision from another person to prevent substantial danger to herself and others.  She continues to drive.  She had returned to work in February 2009, working 5 hours per week for approximately 6 weeks, in the capacity of a Manageress of a Nursery.  She had told the Examining Medical Practitioner that apart from difficulty with washing her hair, dressing and preparing a main meal, she could attend to all of her bodily functions unaided and the Tribunal accepted that this was a fair reflection of her position.’

25.	Accordingly, the evidential basis upon which the appeal tribunal concluded that the appellant did not satisfy the conditions of entitlement to the middle rate of the care component of DLA was that (i) she could drive; (ii) she worked for a 6 week period for 5 hours per week; and (iii) the evidence which she gave to the EMP did not support the conditions of entitlement to the middle rate of the care component.

26.	I do not consider the appeal tribunal’s general conclusions with respect to an ability to drive, and an ability to work as considerations which it is entitled to take into account, as being problematic – see my decision in C12/08-09(DLA).  In respect of the relationship between entitlement to DLA and work, I stated, at paragraphs 66 to 67 and 82 to 85:

’66.	The rules of entitlement to certain social security benefits have a specific link to work or employment.  That link - as in entitlement to income support - may involve a prohibition on entitlement if the claimant is in work, although much may turn on the number of hours, amounts of specific earnings etc.  The rules of entitlement to other social security benefits may have a connection with work in that they are designed to be available for those incapable of work - incapacity benefit or employment & support allowance – or to provide an income while looking for work or seeking to return to employment – jobseeker’s allowance.  Support to obtain employment or remain in work may be provided through the tax credits scheme.  Finally, there may be an entitlement to certain social security benefits – industrial injuries disablement benefit – because of the occurrence of an industrial accident or the onset of a prescribed disease.

67.	The rules of entitlement to DLA have no specific connection to work in that participation in full or part-time employment does not prohibit entitlement to DLA.  Indeed it is the case that there are many claimants to DLA who have a valid and legal entitlement, satisfying the legislative rules of entitlement, and, who are also working.

….

82.	In R2/05(DLA)(T), a Tribunal of Commissioners confirmed that it is proper for an appeal tribunal to seek to build up a picture of a claimant’s lifestyle and general level of ability and to draw inferences as to needs from them.  At paragraph 38 they stated:

‘…Criticism is made of the appeal tribunal for enquiring about activities other than those relating to the claimant’s care and mobility needs.  It is perfectly proper for a tribunal to seek to build up a picture of an appellant’s lifestyle and general level of ability.  A tribunal is entitled to make findings and draw inferences as to care and mobility needs from the answers obtained.  For example, someone who says that they are unable to cook a main meal may accept that they have hobbies involving many actions similar to those used in cooking.  The ability to perform those actions may be directly relevant to the ability to cook.  Again, it is not uncommon for appellants to claim that they need guidance and supervision when walking outside due to confusion but to admit that they are able to drive.  In the present appeal we consider that the appeal tribunal made perfectly proper use of the information which it obtained and reached conclusions which it was entitled to reach.’

83.	A logical extension of the principle that an appeal tribunal is permitted to ‘build up a picture of an appellant’s lifestyle and general level of ability’ is authorization to include within that picture evidence relating to a person’s employment, where relevant.  More importantly, the appeal tribunal will be permitted to adduce evidence of the level of functional ability arising from the work requirements, make findings on that level of functional ability and draw inferences concerning care and mobility needs.

84.	It will and must not always be the case that the inference to be drawn is an adverse one.  It may be the case that an individual is only able to work because necessary adjustments have been made to accommodate a disability, which might involve the provision of such attention in connection with bodily functions, or supervision, that would satisfy the legislative tests even outside of the employment environment.  Equally an appeal tribunal might conclude that evidence of functional ability associated with the requirements of a job, particularly where the employment is physically demanding, might be sufficient to determine that the relevant legislative tests cannot be satisfied.

85.	As with all decision-making in relation to entitlement to DLA, evidence concerning work requires rigorous assessment, and proper fact-finding, followed by an accurate application of the relevant law.’

27.	Based on those principles, I have difficulty with the appeal tribunal drawing inferences from the evidence that the appellant was engaged in work for a six week period for five hours per week without further rigorous assessment and proper fact-finding concerning the nature of the work, and any adjustments which may have been made to facilitate involvement in employment.

28.	I turn, however, to the appeal tribunal’s third evidential basis for concluding that the appellant did not have an entitlement to the middle rate of the care component of DLA – that the evidence which she gave to the EMP did not support the conditions of entitlement to that component.  The evidence which the appellant gave to the EMP, and as recorded by the EMP was but one part of the report prepared as a result of that examination.

29.	At Part 7 of the report, the EMP is asked to give his opinion as to whether the evidence showed that the appellant could safely without someone’s help, or only with someone’s help, attend to certain of her bodily functions.  The EMP gave his opinion that the appellant required assistance with washing and cleaning her teeth, cutting up food, peeling and chopping vegetables, coping with hot pans, dressing, undressing and taking a bath or shower.  The EMP based that opinion on both the evidence which had been given to him by the appellant, and on the clinical findings of the medical examination which had been conducted by him, and which are set out at section 2 of the report.  The attention which the EMP opinioned was reasonably required and was certainly greater than that which the appeal tribunal determined.

30.	More importantly, the appeal tribunal had before it additional evidence from:

(i)	the appellant’s GP, by way of a report  dated 15 December 2008, which included further medical reports from a consultant rheumatologist;

(ii)	the appellant’s GP, by way of report dated 1 May 2009;

(iii)	a consultant rheumatologist, dated 18 June 2009.

31.	In the statement of reasons for the appeal tribunal’s decision with respect to the care component of DLA, the appeal tribunal makes reference to having had sight of these reports.  In C8/08-09(IB), I stated, at paragraphs 60-61:

‘60.	The reason for my rejection of the DMS submission is that there is a clear duty on appeal tribunals to undertake a rigorous assessment of all of the evidence before it and to give an explicit explanation as to why it has preferred, accepted or rejected evidence which is before it and which is relevant to the issues arising in the appeal.

61.	In R2/04(DLA) a Tribunal of Commissioners, stated, at paragraph 22(5):

	‘ … there will be cases where the medical evidence before a particular tribunal will be unsatisfactory or deficient in an important respect.  It will often be open to the tribunal hearing such a case to reject the medical evidence for that reason.  Indeed, it will sometimes be its duty to do so.  However, and in either case, the tribunal cannot simply ignore medical evidence which is not obviously irrelevant.  It must acknowledge its existence and explain its reasons for rejecting it, even if, as will often be appropriate, such reasons are fairly short.  We repeat, the decision whether a person suffers from a particular medical condition is a matter for the tribunal.  That body must have regard to the whole of the evidence, including the medical evidence.  Where it rejects medical evidence it must, unless the reasons are otherwise apparent, explain why it does so.  Anything less is likely to result in an appeal being brought on the grounds that the tribunal has not given adequate reasons or that its decision is against the weight of the evidence.’’’

32.	In the instant case, the medical evidence which had been adduced to the appeal tribunal by the appellant’s representative was very supportive of her claims to entitlement to the middle rate of the care component of DLA.  It was, in my view, incumbent on the appeal tribunal to undertake an assessment of that evidence, and in the statement of reasons for its decision, give an explanation as to what it made of that evidence.  The statement of reasons gives no indication as to how that medical evidence was assessed and whether or not it was accepted or rejected, and accordingly, the reasons are inadequate.

33.	Having found that the appeal tribunal was under a duty to consider the relevant evidence, and having failed to indicate that it did consider that evidence, and explain, in its statement of reasons, that it has so considered it, I find that the decision of the appeal tribunal is in error of law.

	My substituted decision

34.	I accept and adopt the clinical findings of the EMP, as set out in section 2 of the report of the medical examination undertaken on 31 January 2009.  I accept and adopt the contents of the following medical reports:

(i)	the appellant’s GP, by way of a report  dated 15 December 2008, which included further medical reports a consultant rheumatologist;

(ii)	the appellant’s GP, by way of report dated 1 May 2009;

(iii)	a consultant rheumatologist, dated 18 June 2009.

35.	Based on all of the above, I find that the appellant has a significant problem with rheumatoid arthritis which has resulted in substantial impairment to the joints of both of her hands.  I find that the appellant has a reasonable requirement for attention in connection with washing and cleaning her teeth, cutting up food, peeling and chopping vegetables, coping with hot pans, dressing, undressing, taking a bath or shower, washing and drying her hair and, on occasions, using the toilet.  I find that the attention, apart from that involving the toilet, would be reasonably required each day.

36.	In C40/10-11(DLA), I confirmed that the proper approach to section 72 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, was as set out in R(DLA) 5/05 and Moyna v Secretary of State for Work and Pensions [2003] UKHL 44, [2003] 1 WLR 1929, and involves, after consideration of the relevant period, taking a ‘broad’ or ‘common sense’ view.  Taking such a view I find that the appellant satisfies the conditions of entitlement in section 72(2)(b)(i) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, and, accordingly is entitled to the middle rate of the care component of DLA.  I limit the award to the period from 2 October 2008 and 1 April 2010 as the appellant was the subject of ongoing hospital treatment, and changes in her medical condition may, or may not be expected.

	Disposal

37.	The decision of the appeal tribunal dated 17 June 2009 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.

38.	I am able to exercise the power conferred on me by Article 15(8)(a)(i) 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 having made further findings of fact.

39.	My substituted decision is that the appellant satisfies the conditions of entitlement in section 72(2)(b)(i) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, and, accordingly is entitled to the middle rate of the care component of DLA.  I limit the award to the period from 2 October 2008 and 1 April 2010.

(signed)  K Mullan

Commissioner

7 October 2010