AS-v-Department for Social Development (DLA) NICom 223
Decision No:  C26/11-12(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 10 November 2009

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.  The decision of the appeal tribunal dated 10 November 2009 is not in error of law.  Accordingly, the decision of the appeal tribunal that the decision-maker, on 21 February 2008, had grounds to supersede the earlier decision of the Department dated 19 December 2002, and that the appellant should not be entitled to an award of either the mobility or care components of disability living allowance (DLA) from and including 8 June 2007, is confirmed.

	Background

2.	On 19 December 2002 a decision-maker of the Department decided that the appellant should have an entitlement to the higher rate of the mobility component and the middle rate of the care component of DLA from and including 5 April 2003.  On 21 February 2008 another decision-maker of the Department decided that the decision dated 19 December 2002 should be superseded and that the appellant should not be entitled to an award of either the mobility or care components of DLA from and including 8 June 2007.  On 18 March 2008, and following a request to that effect, the decision dated 21 February 2008 was reconsidered but was not changed.  On 28 April 2008 an appeal against the decision dated 21 February 2008 was received in the Department.

3.	Following an earlier postponement of the appeal tribunal hearing, on 10 November 2009 an oral hearing of the appeal took place, together with an appeal against another decision of the Department.  The appellant was present and was represented.  The Department was represented by a Departmental presenting officer.  The appeal tribunal disallowed the appeal and confirmed the decision dated 21 February 2008.  On 15 March 2010 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.  On 26 March 2010 the application for leave to appeal was refused by the legally qualified panel member.

	Proceedings before the Social Security Commissioner

4.	On 29 April 2010 a further application for leave to appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners.  On 5 July 2010 written observations on the application for leave to appeal were sought from Decision Making Services (DMS) and these were received on 28 July 2010.  In these written observations, Mrs Hulbert, for DMS, opposed the application for leave to appeal on all of the grounds cited by the appellant.  Written observations were shared with the appellant and his representative Ms Kyne from the Citizens Advice Bureau, on 20 August 2010.  On 23 November 2010 I directed an oral hearing of the application for leave to appeal and that the oral hearing should be at the same time as the oral hearing in a further but related application for leave to appeal.  The oral hearings were first listed on 26 January 2011.  It became clear, however, that Mrs Hulbert, who appeared on behalf of DMS, was acting in connection with this application and that another officer was acting in connection with the second and related application.  The oral hearings were, accordingly, adjourned and re-listed for 21 March 2011.  On this occasion the Department was represented by Mrs Hulbert of the DMS section, accompanied by Ms McHugh.  The appellant was represented by Ms Kyne from the Citizens Advice Bureau.  Gratitude is extended to all three representatives for their detailed and constructive observations, comments and suggestions.

	Errors of law

5.	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.

6.	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

7.	In the written application for leave to appeal to the Social Security Commissioner, Ms Kyne, for the appellant submitted that the decision of the appeal tribunal was in error of law on the basis that:

(i)	the appeal tribunal failed to take into account and/or resolve conflicts of fact or opinion on material matters.  More specifically, in relying on video-tape evidence the appeal tribunal had virtually dismissed medical evidence which had been submitted to the appeal tribunal.  Further the interpretation by the appeal tribunal of the relevant evidence effectively ignored representations made in relation to it, in particular in relation to the nature and extent of the claimant’s illnesses and disabilities.  Furthermore by its nature video evidence is a snapshot of a moment of time and does not capture what happened after, for example, the video was switched off.  The decision of the Outer House of the Court of Session of Scotland in Brown v Yorkhill National Health Service Trust ([2003] Scot CS 244) was cited in support of the last part of this submission;

(ii)	the appeal tribunal erred by permitting the video evidence to be tendered in the absence of the persons who recorded that evidence.  As such the appellant was unable to test the evidence as there was no opportunity for the persons who took the evidence to be questioned or give evidence.

8.	As was noted above, Mrs Hulbert, for DMS has opposed the application on all of the grounds submitted on behalf of the appellant.

	Analysis

9.	The appeal tribunal prepared detailed and carefully constructed statements of reasons for its decisions in respect of both the care and mobility components of DLA.  The appeal tribunal began by dealing with the fact that the appellant’s representative had been unable to attend the appeal tribunal hearing, and setting out its analysis of why it proceeded in the absence of the appellant’s representative which was to facilitate the appellant’s wish to have what were lengthy appeal and parallel proceedings concluded.

10.	The appeal tribunal reminded itself that the decision under appeal was the decision of the Department dated 21 February 2008.  Further, and most significantly, the appeal tribunal confirmed that the decision of 21 February 2008 was a supersession decision and that the ground for supersession, identified by the decision-maker, was that found in regulation 6(2)(a)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, that is that there had been a relevant change of circumstances since the original decision of the Department, awarding entitlement to DLA, had been made.  Finally the appeal tribunal considered a submission with respect to the effective date of supersession for the purposes of Articles 11(5) and (6) of the Social Security (Northern Ireland) Order 1998, and regulation 7 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, all as amended.

11.	The appeal tribunal considered the Department’s submission prepared in connection with the appeal tribunal hearing and, more particularly, the evidence adduced in support of that submission, including the original claim forms to DLA, medical evidence in support of those claim forms, the evidence obtained by the officers from Benefit Investigation Services, the transcript of interviews under caution conducted with the appellant, including his detailed submissions concerning his disabilities and their effects.  The appeal tribunal noted the appellant’s attendance at court and the outcome of the criminal proceedings against him.

12.	Very significantly, and in a detailed section of the statement of reasons, the appeal tribunal noted the contents of the appellant’s general practitioner (GP) records, the appellant’s oral evidence given at the appeal tribunal hearing, and the medical report from the appellant’s GP, submitted on behalf of the appellant.

13.	The appeal tribunal then turned its attention to the questions which it was obliged to answer.  The first of these was whether the decision-maker, on 21 February 2008, had grounds to supersede the earlier decision of the Department dated 19 December 2002, and whether the appellant should be entitled to an award of either the mobility or care components of DLA from and including 8 June 2007.

14.	Looking at the two statements of reasons for the appeal tribunal’s decisions, I conclude that it is difficult to fault the approach of the appeal tribunal to the complex issues which it was required to consider.  In this respect, I cannot, with respect, accept the submission from Ms Kyne that the appeal tribunal placed too great an emphasis on the evidence obtained as a result of the investigations undertaken by the officers from Benefit Investigation Services, and ignored representations made in connection with that evidence.  I am of the view that the appeal tribunal took into account the totality of the evidence including submissions made by the appellant and, more significantly, evidence derived both from the appellant’s GP records, and submitted on behalf of the appellant by his GP.  In a careful and detailed section, the appeal tribunal contrasted and compared the submitted evidence from the GP with the remainder of the medical evidence from the appellant’s GP.  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.

15.	I have noted Ms Kyne’s submission, based on the decision of the Outer House of the Court of Session of Scotland in Brown v Yorkhill National Health Service Trust ([2003] Scot CS 244), concerning the nature and reliability of video evidence.  Additionally, I have considered the submission in connection with the absence from the appeal tribunal hearing of the officers who had conducted the surveillance, prepared and edited the video evidence and who had conducted the subsequent interviews under caution.

16.	In DF v Department for Social Development (DLA) ([2010] NICom 133 C75/10-11 (DLA)) similar arguments had been made in connection with video evidence and absent Departmental officers.  At paragraph 37 of my decision in that case, I stated the following:

‘37.	The appellant and his representative were entitled to request that the officers from BIS attend the oral hearing and give oral evidence in connection with the surveillance undertaken on the appellant.  As was noted above, the evidence from BIS formed a vital part of the decision-making process giving rise to the appeal.  It was not wholly satisfactory, from a natural justice perspective that the two officers did not attend.’

17.	That principle applied in the instant case.  It was not wholly satisfactory, from a natural justice perspective that the relevant officers from Benefit Investigation Services did not attend the oral hearing of the appeal.  It was clear, however, as in DF v Department for Social Development (DLA), that the relevant officers had left the Department and that it would be highly unlikely that they would ever be in attendance at an oral hearing of the appeal.  I am of the view, however, that the decision by the appeal tribunal to proceed on the basis of the evidence which was already before it was one that it was entitled to take.  Further, as in DF v Department for Social Development (DLA), I am also of the view that the appeal tribunal’s assessment of the surveillance evidence was rational and coherent, and was adequately set out in the statement of reasons for the appeal tribunal’s decision.  It took into account the submissions which the appellant had made in connection with the reliability of that evidence, both during the subsequent interviews under caution and before the appeal tribunal.  Further, it weighed and assessed that evidence against the remainder of the evidence which was before it.

18.	In addition, while I agree that Lord Abernethey, at paragraph 32 of Brown v Yorkhill National Health Service Trust commented on the nature of covert video evidence, he also stated, at paragraph 17:

‘…It was therefore necessary for the circumstances in which the video had been taken and later edited to be explained.  Only the taker could do that and he or she had not given evidence.  Reference was made to Patterson v Howdle 1999 JC 56.  In my opinion, however, the failure of the taker of the video to give evidence on these matters did not render the video tape inadmissible as evidence.  It might affect the weight to be put upon it but that is a different matter.’

19.	I am of the view that the appeal tribunal was entitled to take the video evidence and the evidence contained in the transcripts of the interviews under caution into account.  Accordingly, the decision of the appeal tribunal is not in error of law on the basis of the submissions made by the appellant and his representative in connection with the surveillance evidence.

	Disposal

20.	The decision of the appeal tribunal dated 10 November 2009 is not in error of law. Accordingly, the decision of the appeal tribunal that the decision-maker, on 21 February 2008 had grounds to supersede the earlier decision of the Department dated 19 December 2002, and that the appellant should not be entitled to an award of either the mobility or care components of DLA from and including 8 June 2007, is confirmed.

(signed):  K Mullan

Chief Commissioner

1 November 2011