KE-v-Department for Social Development (AA) [2011] NICom 204
Decision No:  C1/11-12(AA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

ATTENDANCE 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 10 February 2010

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

2.	The decision of the appeal tribunal dated 10 February 2010 is not in error of law.  Accordingly the decision of the Department to disallow entitlement to attendance allowance (AA), from and including 16 July 2009 is confirmed.

3.	This decision will come as a disappointment to the appellant but I am obliged, as was the appeal tribunal, to apply the relevant legislative provisions to the facts of the case.

	Background

4.	On 19 August 2009 a decision-maker of the Department decided that the appellant should not have an entitlement to AA on a claim to that benefit made on 16 July 2009.  On 24 September 2009, and following an exchange of information between the appellant and the Department, the appellant was examined by an examining medical practitioner (EMP).  On 1 October 2009 the decision dated 19 August 2009 was reconsidered but was not changed.

5.	Following an earlier adjournment of the appeal, an appeal tribunal hearing took place on 10 February 2010.  The first page of the record of proceedings for the appeal tribunal hearing allows for the insertion of details including those in attendance at the hearing of an appeal.  In the instant case no such details have been inserted in the relevant section of the form.  Nonetheless, from the correspondence which has been received from the appellant it is clear that she was in attendance at the oral hearing of the appeal and that she was represented.  The appeal tribunal disallowed the appeal and confirmed the decision of the Department dated 19 August 2009.  On 15 March 2010 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.  On 18 March 2010 the application for leave to appeal was refused by the legally qualified panel member.

	Proceedings before the Social Security Commissioner

6.	On 30 March 2010 a further application for leave to appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners.  On 9 September 2010 further information in connection with the application was received from the appellant.  On 17 September 2010 observation on the application for leave to appeal were sought from Decision Making Services (DMS) and these were received on 1 October 2010.  In these initial written observations, Mr Hinton, for DMS, opposed the application on the grounds cited by the appellant.  The written observations were shared with the appellant on 7 October 2010.  On 10 November 2010 Mr Hinton was asked by the legal officer to provide further observations on a specific question.  Those further observations were received on 15 November 2010 and were shared with the appellant on 17 November 2010.  On 19 November 2010 further correspondence was received from the appellant.

	Errors of law

7.	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.

8.	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 grounds submitted by the appellant

9.	In the application for leave to appeal to the Social Security Commissioner the appellant has submitted that the decision of the appeal tribunal was in error of law on the basis that:

(i)	the appeal tribunal failed to discuss how her disability affected her and the problems she encountered;

(ii)	the appeal tribunal was at a loss to understand why the male member of the panel asked her how she passed her time;

(iii)	the female member of the panel did not ask her any questions which led her to believe that the decision was pre-determined; and

(iv)	parts of the record of proceedings were inaccurate.

10.	In the written observations on the application for leave to appeal, Mr Hinton, for DMS, has submitted that:

‘I will deal with each of these issues in turn.

Issue 1

The tribunal failed to discuss how her disability affected her and the problems she encountered.

The record of proceedings show Mr McAleese, (the claimant’s) representative setting out her problems which included a torn cartilage in her knee, tinnitus, a fractured ankle in April 2008 and a back problem in which she had a disc removed.  The chairman then invited (the claimant) to state her problems and to relate something of her history which she did.  She was then asked to set out what help she would require regarding her care needs which she did in some detail.  The tribunal in its reasoning took the aforementioned evidence into account and concluded:

“…The Tribunal have had the opportunity to listen and observe the evidence of [the claimant].  They have also taken on board the medical evidence from both her GP the EMP and indeed her medical notes and records and whereas undoubtedly she has had problems in the last few years she was at the date of decision and remains at all times able to tend to all of her care needs safely and unaided both during the day and at night.  The Tribunal are of absolutely no doubt that she is aware of common danger and that any restrictions that she does have are slight.  She is able to wash and dress herself provided she takes her time and she is not at risk either from self harm or self neglect.  She is able to drive a motor car.  She is able to apply for jobs.  There is no question of her either requiring continual supervision during the day or at night nor is there any question of anyone being awake at night to look after her to avoid danger to herself or others.  Accordingly on this basis the Tribunal find her fully independent and she is not entitled to attendance allowance.”

I would contend it is evident from the above that the tribunal took (the claimant’s) medical conditions into account and the problems she encountered.  This was dealt with in some detail in the record of proceedings.  Its role however was also to assess (the claimant’s) needs arising from her medical conditions.  I would contend that the tribunal provided clear and sound reasons as to why (the claimant) did not fulfil the conditions for an award of attendance allowance.  Consequently it has not erred in law in this regard.

Issue 2

(The claimant) was at a loss to understand why the male member of the panel asked her how she passed her time.

(The claimant) stated that the male member of the panel “made a mockery of me” by asking her how she passed her time.  I would contend this was not the case.  Attendance Allowance is paid on the basis of the amount of care a person requires.  The aim of the tribunal’s questioning in this respect was to build up a picture of (the claimant’s) physical and mental abilities which would enable it to form an assessment of her needs.  Consequently the member of the panel was trying to obtain as much information as possible from (the claimant) so that the tribunal could arrive at a fair decision as to whether or not (the claimant) satisfied the entitlement conditions for an award of Attendance Allowance.  In reported decision R2/05 (DLA)(T) a Tribunal of Commissioners held that it was proper for a tribunal to build up a picture of a claimant’s lifestyle so as to draw inferences as to the needs arising.  At paragraph 38 they stated:

“…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…”

In light of the above I would submit that the tribunal was fulfilling its inquisitorial function in this respect; therefore it cannot be said to have erred in law.

Issue 3

The female member of the panel did not ask her any questions which led her to believe that the decision was pre-determined.

I was not present at the hearing; therefore I would not be able to comment on how it was conducted or how the questioning by the panel members was structured.  I would contend however that there has been no evidence presented either in the record of proceedings or the statement of reasons to suggest that the decision to disallow Attendance Allowance was pre-determined.  It is evident that the tribunal gave (the claimant) every opportunity to state her case including how she would require help regarding her care needs.  The tribunal then assessed all the evidence in reaching its decision.  Therefore I would contend it has not erred in law and there is no merit in this ground of appeal.

Issue 4

(The claimant) stated that parts of the record of proceedings were inaccurate.

As I was not present at the hearing I am unable to make any meaningful comment on the accuracy of the record of proceedings.  I would refer to comments made by Chief Commissioner Martin in paragraph 16 of unreported decision C48/99-00(DLA) where he stated:

“…However there is no obligation to make a verbatim record of all that does occur at a Tribunal hearing although the record should summarise all relevant evidence and also note any written evidence and submissions that are received by the Tribunal during the hearing.  It is difficult for a Commissioner, who has only jurisdiction to decide appeals on points of law, to rule on whether something occurred or did not occur at a Tribunal hearing…”

In this case the record of proceedings gave a detailed account of how (the claimant) spent her day.  It also recorded her account of her medical conditions and how they impacted upon her care needs.  Therefore in line with the above I would contend that the record of proceedings set out the relevant evidence in detail including that submitted by (the claimant).  Consequently it is my view that the tribunal has not erred in law regarding this issue.

Finally, I note that (the claimant) has raised concerns about the way she was represented by Mr McAleese at the appeal hearing and the lack of pre-hearing discussion with him.  Had such concerns being raised during the course of the hearing the tribunal in al likelihood would have afforded her the opportunity of an adjournment.  In the absence of such concerns being made to the tribunal it cannot be said to have erred in law.’

11.	I agree with the submissions made by Mr Hinton and also agree with him, for the reasons which he has set out, that the decision of the appeal tribunal could not be said to be in error of law on the basis of the grounds submitted by the appellant.

	The report of the examination conducted by the EMP

12.	As was noted above, as part of the evidence-gathering process giving rise to the making of the decision under appeal, the Department arranged for the appellant to be examined by an EMP.  The examination took place on 24 September 2009 and a report of the medical examination is attached to original appeal submission as Tab No 9.  Following the conduct of a medical examination and the recording of relevant clinical findings, the EMP gave the following summary, at page 26 of the report:

‘… She is making a slow recovery from this but she has some way to go before she will be able to cope adequately with her ADLs and self-care needs.  She lives alone, is quite independent but needs the support of someone to attend her on a daily basis for the foreseeable future.’

13.	The ‘recovery’ referred to was in the context of an operation which the appellant had undergone in September 2009.  I am assuming that ‘ADLs’ is a reference to ‘Activities of Daily Living’.

14.	At first glance, therefore, these conclusions appear to be supportive of a requirement for attention in connection with bodily functions – the basis of one of the legislative tests for entitlement to AA.

15.	How did the appeal tribunal assess this evidence?  In the statement of reasons for the appeal tribunal’s decision, the appeal tribunal has recorded that:

‘… The Tribunal have had the opportunity to listen and observe the evidence of (the claimant).  They have also taken on board the medical evidence both from her GP the EMP and indeed her medical notes and records and whereas undoubtedly she has had problems in the last few years she was at the date of the decision and remains at all times able to tend to all of her own care needs safely and unaided both during the day and at night. … She is able to wash and dress herself providing she takes her time and she is not at risk from either self harm or self neglect …’

16.	It is important to note that the assessment of evidence is a matter for the appeal tribunal, and a Social Security Commissioner must be wary of interfering with the conclusions of an appeal tribunal based on its evidential assessment.  I also remind myself of the comments of Mrs Commissioner Brown at paragraph 8 of C10/05-06(DLA) when she said:

‘Before dealing with the grounds of appeal in detail I should say that I do not consider that a tribunal decision should be dissected in the manner of a statute.  I would state further that it is possible for a decision to contain an error but for the decision itself not to be in error of law.  Much depends on whether that error was of such a nature and so substantial as to render the decision in error of law.  The reasons for a decision should be read as a whole and particular parts should not be isolated from their context and from the remainder of the reasons.  It is of course permissible to highlight and refer to particular passages but they must nonetheless be read in context …’

17.	In the instant case, Mr Hinton, for DMS, has submitted that it is clear that the appeal tribunal considered the report of the examination conducted by the EMP as part of its overall assessment of the evidence.  I agree that the appeal tribunal acknowledged that the relevant report was before it.  Mr Hinton also submitted that while the appeal tribunal did not refer specifically to the relevant passage on page 26, the appeal tribunal has assessed the overall content of the report in arriving at its decision.

18.	As was noted above, the comments made by the EMP, following the conduct of a medical examination had the potential to be favourable to the appellant’s claim to AA.  It is important to note, however, that the comments were made in the context of the appellant’s recovery from an operation which had taken place in September 2009.

19.	The date of the decision under appeal to the appeal tribunal was 19 August 2009.  Appeal tribunals are precluded, of course, by virtue of Article 13(8)(b) of the Social Security (Northern Ireland) Order 1998 from taking into account any circumstances not obtaining at the time when the decision appealed against was made.  An appeal tribunal is not, however, limited to evidence that was before the decision-maker who made the decision under appeal or that was in existence at the date of that decision providing the evidence related to the period within the tribunal’s jurisdiction.  Appropriate guidance on this issue was made in R(DLA) 2/01, R(DLA) 3/01 and C21/08-09(DLA).  I am of the view, however, that the EMP was considering the appellant’s conditions in circumstances which had changed since the date of the decision under appeal.  She was in a recovery period following a major surgical intervention.  Her recovery was thought to be likely to take some time and would be likely to impact on her activities of daily living and her self-care needs.

20.	Accordingly I am satisfied that the evidence did not relate to the period under the appeal tribunal’s jurisdiction and that the appeal tribunal’s overall assessment of the evidence which was before it was 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.  Read as a whole, the statement of reasons for the appeal tribunal’s decision provides a detailed explanation of the basis on which the appeal tribunal arrived at its conclusions on the issues before it.

21.	It is the case, of course, that any change in the appellant’s circumstances could form the basis of a further application for entitlement to AA.  I note from the correspondence which is before me that the appellant appears to have made a successful subsequent claim to that benefit.

	Disposal

22.	The decision of the appeal tribunal dated 10 February 2010 is not in error of law.  Accordingly the decision of the Department to disallow entitlement to AA, from and including 16 July 2009, is confirmed.

(signed):  K Mullan

Chief Commissioner

22 August 2011