KS-v-Department for Social Development (DLA) [2012] NICom 251
Decision No:  C16/11-12(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 20 January 2011

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I consider that the proceedings can properly be determined without a hearing.

2.	I allow the appeal and I set aside the decision of the appeal tribunal.

3.	I refer the case to a tribunal for determination in accordance with the directions I have given.

REASONS

	Background

4.	The appellant made a renewal claim for disability living allowance (DLA) from and including 21 August 2010, having previously held an award of the high rate of the care component from 21 August 2009 to 20 August 2010.  The Department awarded the middle rate of the care component from 21 August 2010 to 20 August 2012, which represented a reduction in the appellant’s award.  He appealed this decision.

5.	Following a hearing on 20 January 2011, an appeal tribunal allowed the appeal and awarded the low rate of the mobility component and the middle rate of the care component from 20 August 2010 to 20 August 2012.  In relation to the care component this award was still lower than that previously held by the appellant to 20 August 2010.

6.	The appellant sought a statement of reasons for the tribunal’s decision on 25 January 2011.  This was forwarded to him on 27 May 2011, together with a record of the tribunal proceedings.

7.	The appellant made an application for leave to appeal to the Social Security Commissioner against the decision of the appeal tribunal.  This was received on 24 June 2011.  The legally qualified member of the appeal tribunal considered the application for leave to appeal to the Social Security Commissioner and, on 7 July 2011, granted leave to appeal.

	Grounds of appeal

8.	The appellant had been awarded the middle rate of the care component, based upon night time attention needs.  These arose from sleep apnoea, for which he used a CPAP machine, and resulting anxiety.  The award for night time attention was not disputed by the Department and the tribunal decided not to disturb that award.

9.	As well as sleep apnoea, diagnosed in 2009, which resulted in him experiencing chronic fatigue, the appellant was accepted to be suffering from chronic depression and leg pain, with a history of a heart attack in 2008.  He had undergone coronary stenting on two occasions in 2008 and 2009.  The grounds of appeal contended that the appeal tribunal had erred in law in relation to its assessment and reasons for not allowing the care component for day time attention arising from the appellant’s mental health.

10.	Medical evidence from the appellant’s general practitioner (GP) dated 19 January 2011 indicated that he was suffering from very severe depression and anxiety.  In his claim form he had indicated a variety of care needs – some because of his physical health and some because of a requirement for encouragement and motivation arising from his mental health.  The appellant’s grounds of appeal contended that:

1.	the tribunal did not adequately explain why it decided that the appellant did not have any care needs arising as a consequence of his mental health;

2.	alternatively, the tribunal misinterpreted the evidence with regard to mental health when finding that there was a degree of variability in the appellant’s mental health symptoms – it was submitted on the appellant’s behalf that there was no evidence to substantiate such findings.

11.	There is no ground of appeal raised in relation to the appeal tribunal’s treatment of the question of entitlement to the mobility component.

	The Department’s observations

12.	The Department was invited to make observations on the appeal and on 3 October 2011 Mrs Hulbert replied for the Department.  She opposed the appeal.  In particular she set out the evidence considered by the appeal tribunal and submitted that it was clear that the tribunal had given extensive consideration to the evidence before it.  She submitted that the appeal tribunal had preferred the evidence in the GP factual report over the other medical evidence and had given its reasons for doing so.

13.	She stated that in Quinn v Department for Social Development ([2004] NICA), the Court of Appeal emphasised that the assessment of evidence and fact-finding role is one for the appeal tribunal.  At paragraph 29, the Court stated:

“…it is of course to be remembered that a view of the facts reached by a tribunal can only be interfered with by the Court of Appeal in limited and well defined circumstances.  Carswell LCJ described those circumstances in Chief Constable of the RUC in Sergeant A [2000] NI 261 at 273f as follows:

“A Tribunal is entitled to draw its own inference and reach its own conclusions, and however profoundly the appellate court may disagree with its view of the facts it will not upset its conclusions unless-

(a)	there is no sufficient evidence to found them, which may occur when the inference of conclusion is based not on any facts but on speculation by the tribunal (Fire Brigades Union v Fraser [1998] IRLR 697 at 699, per Lord Sutherland); or

(b)	the primary facts do not justify the inference or conclusion drawn but lead irresistibly to the opposite conclusion reached may be regarded as perverse:  Edwards v Bairstow [1956] AC 14, per Viscount Simonds at 29 and Lord Radcliffe at 36.”

14.	She pointed out that at paragraph 4 of R (DLA) 3/04 (the decision that was the subject of Quinn v Department for Social Development) Commissioner Brown had made similar remarks:

“…the weight to be given to any evidence is completely a matter for the tribunal.  The weight to be given to an item of evidence is a matter of fact.  That means I can disturb it only if that conclusion as to weight is one which no reasonable tribunal could have reached.”

15.	She submitted that the tribunal had given clear reasons for its decision as to why it did not find that the appellant’s needs were sufficient to warrant an award of high rate care component and therefore had not erred in law as contended.

Further response

16.	Ms Loughrey replied for the appellant and reiterated the point that the appeal tribunal had not dealt with needs stated in the claim form as arising from the appellant’s mental health.

	Hearing

17.	The appellant has requested an oral hearing of his appeal.  As the appeal is entirely grounded on the adequacy or otherwise of the written findings and reasons of the appeal tribunal, this is a matter which is appropriately assessed on the documents before me.  I therefore consider that the proceedings can properly be determined without a hearing.

	Assessment

18.	This appeal is entirely concerned with the decision of the appeal tribunal in relation to the appellant’s entitlement to the care component of DLA.  The appeal tribunal had maintained an award of the middle rate of the care component, based upon night attention needs.  By this appeal, it is evident that the appellant seeks to increase the middle rate of the care component he has been awarded to the highest rate.

19.	The structure of the care component of DLA is set out in section 72 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 (“the 1992 Act”).  Under section 72(4) it is provided that:

(4)  The weekly rate of the care component payable to a person for each week in the period for which he is awarded that component shall be—

(a)  the highest rate, if he falls within subsection (2) above by virtue of having satisfied or being likely to satisfy both the conditions mentioned in subsection (1)(b) and (c) above throughout both the period mentioned in paragraph (a) of subsection (2) above and that mentioned in paragraph (b) of that subsection;

(b)  the middle rate, if he falls within that subsection by virtue of having satisfied or being likely to satisfy one or other of those conditions throughout both those periods; and

(c)  the lowest rate in any other case.

20.	An award of middle rate care component, even on the basis of the night conditions under section 72(1)(c) of the 1992 Act, cannot be supplemented with an award of the low rate of the care component under section 72(1)(a), for example on the basis of a requirement for attention for a significant portion of the day.  Therefore the only issue in the appeal before the tribunal was whether the appellant satisfied the day conditions of entitlement to the care component under section 72(1)(b).  These would require the appellant to establish a reasonable requirement for frequent attention throughout the day in connection with bodily functions, or a need for continual supervision throughout the day to avoid the risk of substantial danger to himself or others.

21.	The point of law made by the appellant concerns the question of a requirement for attention in connection with bodily functions arising from a combination of physical and mental disablement.  The essence of the argument being submitted on behalf of the appellant was that the appeal tribunal had no basis for finding an element of variability in the appellant’s mental condition, or that they did not explain their basis for so finding.

22.	In making its decision the appeal tribunal recorded:

“...The tribunal accept that there are times when the Appellant is particularly unwell or low in mood and on these occasions he may need encouragement and some help from his wife or others.  However generally speaking and on a daily basis the Tribunal do not accept that this is a frequent requirement that happens every day.”

23.	The appellant’s representative submits that the tribunal has not made adequate findings on the needs of the appellant which might have arisen as a consequence of his need for prompting and encouragement.  He submits that he had identified these needs on his renewal form.

24.	I have considered the evidence before the appeal tribunal, including the claim form, the oral evidence noted in the record of proceedings, the GP factual report, and the letter of Dr Bradley dated 19 January 2011.  In addition to this material, the appeal tribunal had sight of the GP records which I do not have sight of.  Only one extract from the medical records is recorded by the appeal tribunal and this is the comment of Dr McCauley, consultant psychiatrist, of 2 September 2010 stating: “he felt the Appellant had a depressive disorder with prominent anxiety symptoms.  He suspected that he perceived his angina as being panic attacks.”

25.	I can find no basis in the evidence recorded by the appeal tribunal to justify the finding of fact which appears in the statement of reasons and upon which their decision is based, namely “that there are times when the Appellant is particularly unwell or low in mood”, or in other words that the appellant’s mental condition is variable.  If the appeal tribunal had an objective basis for making such a finding, it is not recorded in the record of proceedings or statement of reasons.

26.	Mrs Hulbert has contended that the tribunal was entitled to reach its decision on the evidence before it.  However, I do not accept that this is the case.  I consider that there is not sufficient evidence on the record to justify the tribunal’s finding of variability in the appellant’s condition.  It may be that the appeal tribunal heard or read some evidence which is not recorded, or that it formed a reasonable view based on seeing the appellant in person but, in the absence of any recorded finding or explanation, the appeal tribunal’s conclusion has the appearance of being based on speculation rather than evidence.

27.	I also observe that the appeal tribunal’s record of proceedings does not set out any findings in relation to the appellant’s need or otherwise for encouragement and prompting.  Yet the appeal tribunal’s statement of reasons says in relation to episodes of low mood that“on these occasions he may need encouragement and some help from his wife or others”.  It is therefore not possible to assess the extent to which the appeal tribunal would have accepted that the appellant did require attention and how frequently, and with what degree of regularity.  In the absence of such findings I cannot go on to determine whether the appeal tribunal’s treatment of the evidence regarding the variability of the appellant’s condition would have made a material difference to the outcome of the appeal.

	Disposal

28.	I accept that the decision of the appeal tribunal contains an error of law for the reasons indicated above.  There are insufficient findings on the contested matter for me to be able to determine the matter myself.  I consider that I must set aside the decision of the appeal tribunal and refer it back to a newly constituted appeal tribunal for rehearing.  That appeal tribunal will have the advantage over me in that it will include a medical member and a disability experienced member, as well as having the prospect of access to material such as the appellant’s medical records.

29.	DLA is one benefit, albeit consisting of two components.  My decision has the consequence that the award of the low rate of the mobility component made by the appeal tribunal is set aside, as well as that aspect of the decision maintaining the award of the middle rate of the care component based on night attention.  Therefore, the appeal tribunal deciding the appeal will need to assess the entitlement of the appellant to the mobility component as well as to the care component.

30.	In making its decision, the appeal tribunal will require to make findings of fact in relation to the attention needs of the appellant said to arise from his mental health condition, as well as to any attention needs said to arise from his physical condition.

31.	To the extent that the appeal tribunal considers that there is any variability in the appellant’s condition, it should record its findings as to how that might affect the question of entitlement taking the “broad view of the matter” approach approved in Moyna [2003] UKHL 44.

(signed):  O Stockman

Commissioner

26 January 2012