WM-v-Department for Social Development |(DLA) [2012] NICom 320
Decision No: C22/12-13(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 4 June 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 4 June 2010 is not in error of law.  Accordingly, the appeal to the Social Security Commissioner does not succeed.  The decision of the appeal tribunal to the effect that the appellant is entitled to the lowest rate of the care component of disability living allowance (DLA) for the period from 24 October 2009 to 23 October 2011 and is not entitled to the mobility component of DLA from and including 24 October 2009 is confirmed.

	Background

3.	On 18 August 2009 a decision-maker of the Department decided that the appellant should not have an entitlement to either component of DLA on a renewal claim to that benefit.  On 2 September 2009 a letter of appeal against the decision dated 18 August 2009 was received in the Department.  On 15 September 2009 the decision dated 18 August 2009 was reconsidered but was not changed.

4.	Following an earlier adjournment, the substantive oral hearing of the appeal took place on 4 June 2010.  The appellant was present and was represented by Mr McCloskey from the Citizens Advice organisation The Department was not represented.  The appeal tribunal allowed the appeal and made an award of entitlement to the lowest rate of the care component of DLA for the period from 24 October 2009 to 23 October 2011.

	On 18 October 2010 an application for leave to appeal was received in The Appeals Service.  On 20 October 2010 the application for leave to appeal was refused by the legally qualified panel member.

	Proceedings before the Social Security Commissioner

5.	On 17 November 2010 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 31 January 2011 observations on the application for leave to appeal were sought from Decision Making Services (DMS) and these were received on 16 February 2011.  In these written observations, Mr Kirk, for DMS, opposed the application on the grounds cited in the application.  Written observations were shared with the appellant and Mr McCloskey on 10 March 2011.  On 23 March 2011 further observations in reply were received from Mr McCloskey which were shared with Mr Kirk on 29 March 2011.

6.	There than followed a delay in the promulgation of this decision, occasioned, in part, by an indication that certain of the issues which arose in the present case might be the subject of consideration by a Social Security Commissioner in another appeal.  In the event, the further appeal was determined without there having to be a detailed analysis of the issues arising in the present appeal.

	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?

9.	In the application for leave to appeal to the Social Security Commissioner, Mr McCloskey submitted that the decision of the appeal tribunal was in error of law in that:

(i)	There had been a breach of the rules of natural justice.  More particularly, Mr McCloskey submitted that the appeal tribunal had failed to consider the papers relating to a previous award of entitlement to DLA and, that, given that there had been a reference to a deterioration in her medical condition and a requirement for encouragement to go out, the appeal tribunal had failed to explain why it was not renewing the previous award of entitlement to the lower rate of the mobility component of DLA.  The decision in R(M) 1/96 was cited by Mr McCloskey in support of the submission that the appeal tribunal was required to consider the basis of the previous award.

(ii)	The appeal tribunal, in making its decision, took matters into account which were not relevant.  More particularly, Mr McCloskey submitted that the appeal tribunal concluded that the appellant did not satisfy the conditions of entitlement to the middle rate of the care component of DLA as she was able to remain at home for significant portions of the day and at night.  Mr McCloskey submitted that the ‘… ability to remain at home alone for significant part of day is an insufficient indicator of the level of care needs.’

(iii)	The appeal tribunal failed to give adequate reasons for the decision.  More particularly, Mr McCloskey submitted that while an ability to drive might be a useful external test as to insight and awareness of danger, there was evidence that the appellant was prevented from going out of doors due to anxiety and social avoidance.

10.	As was noted above, in his written observations on the application for leave to appeal, Mr Kirk, opposed the application on all of the grounds cited by Mr McCloskey, setting out in some detail the basis of such opposition.  In his written observations in reply, Mr McCloskey returned to and elaborated on the submissions which he had made, based on the observations made by Mr Kirk.

11.	I begin by considering Mr McCloskey’s submissions concerning the relevance of the previous award.  The appellant had a previous award of entitlement to the lower rate of the mobility component of DLA from 24 October 2006 to 23 October 2009.  I am of the view that Mr McCloskey is raising two issues here.  The first is whether the appeal tribunal was obliged, in general terms, to consider the previous award of entitlement to DLA.  The second is a challenge to the basis of the appeal tribunal’s conclusions with respect to the conditions of entitlement to the lower rate of the mobility component of DLA.  Because the previous award was one giving entitlement to the lower rate of the mobility component, the two issues are, in Mr McCloskey’s submission, necessarily conflated.

12.	There is significant authority on the extent of the general duty of an appeal tribunal, when considering an appeal following a decision not to renew an entitlement to a social security benefit.

13.	In R 3/04(DLA) (Quinn v Department for Social Development [2004] NICA 22), the claimant was in receipt of the highest rate of the care component and the higher rate of the mobility component of DLA for a fixed period.  Part of the evidence in respect of that award was the report of an examination by an examining medical practitioner (EMP).  A renewal claim was disallowed by the Department and that decision was upheld by an appeal tribunal.  In turn, the decision of the appeal tribunal was upheld by the Social Security Commissioner.

14.	Before the Court of Appeal, it was submitted that the appeal tribunal that the appeal tribunal had failed to give any consideration to the first EMP report.  Since the appellant had been awarded DLA, on the first claim, and the medical evidence suggested that there had been no improvement in her condition the appeal tribunal ought to have taken account of the EMP report in relation to the first application.  The argument continued that, in turn, the Social Security Commissioner should have recognised that the appeal tribunal had failed to have regard to the first report and ought to have reversed the appeal tribunal’s decision on that account.

15.	The Court of Appeal dealt with the latter argument quickly holding that as the issue concerning the first EMP report had not been argued before the Social Security Commissioner, it would be quite unrealistic to expect the Commissioner to disinter an argument from relevant obscurity.  More obviously, however, the Court of Appeal held, at paragraph 35, that:

‘The ultimate disposal of this argument, however, is provided by the consideration that the first report could not have made any difference to the outcome of the appeal to the Tribunal.  The second request for DLA was a renewal application.  Each application must be treated anew.  The reason for this is clear.  The claimant for DLA must establish a level of disability at the time the application is made and for a period of six months after the benefit becomes payable.  It would avail the appellant nothing to show that in November 1997 she was considered to be sufficiently disabled to be entitled to the benefit.  She must show a contemporaneous disability of such severity that she was entitled to the benefit at the time of application and beyond.’

16.	In relation to the appeal tribunal’s requirement to consider the first EMP report, the Court of Appeal, had the following to say, at paragraphs 39-42:

‘[39]  The final argument on this subject was that the Tribunal had failed to explain why it had concluded that the appellant no longer qualified for the benefit if her condition had not improved from that set out in the first EMP’s report; or if it concluded that the appellant’s condition had improved, on what basis it made that finding.

[40]  The requirement to give reasons where a Tribunal decides that a claimant for benefit is no longer entitled to a benefit of which he or she had been in receipt previously was considered by the Social Security Commissioner in R(M)1-96 CM/20/1994.  In that case the claimant had lost part of his right leg in an accident and had arthritis in his left hip and spine.  His renewal claim for mobility allowance in 1992 was rejected on the ground that he was neither unable, nor virtually unable, to walk.  The claimant contended that his walking ability had in fact got worse since he was originally awarded mobility allowance in 1991.  A disability appeal tribunal confirmed the rejection of his claim.  The claimant appealed to a Social Security Commissioner.  It was held that the fact of a previous award does not raise any presumption in the claimant’s favour or result in the need for consistency having to be treated as a separate issue on a renewal claim.  However, the requirement for a tribunal to give reasons for its decision means that it is necessary for a tribunal to explain why it is not renewing a previous award unless this is obvious from its findings.

[41]  We agree with this reasoning and intend to apply it to the present case.  Here the Tribunal has not explained why it is not following the course previously taken in making an award of DLA but, in our view, there was no need to do so.  The reason that the Tribunal refused DLA was that it had concluded that the appellant did not suffer from the level of disability that had to be present before the benefit was payable.  As the Court of Appeal said in Evans, Kitchen and Others v. Secretary of State, [now reported as R(I)5/94] a previous award carries no entitlement to preferential treatment on a renewal claim for a continuing condition.  In the R(M)1-96 case the Social Security Commissioner put the point in this way: -

“… on a renewal claim, which is a fresh claim for benefit for a period not covered by any previous award, there can be no question of the tribunal being bound to follow any previous decision awarding benefit for an earlier period, nor, in determining whether the conditions for benefit are satisfied on the facts as they find them to be at the date relevant for their decision, is any different standard to be applied according to whether benefit has or has not been awarded before: ex p. Viscusi, supra; CM/205/1988 components of the same benefit dealt with by the same tribunal paragraph 13 (not doubted on this point in the later cases).” (paragraph 13.4)

[42]  The Tribunal said that it had concluded that the appellant had full function of her upper arms and lower limbs and that she could attend to her bodily functions unaided and unsupervised day and night.  It also said that she could cook a main meal for herself and has no mobility needs.  This statement was sufficient to convey to the appellant why she was not going to receive the benefit.  Put simply, the Tribunal had concluded that she had exaggerated her condition and that she was not truly disabled.’

17.	Applying those principles to the present case, it was clear that the appeal tribunal was aware that the appellant had previously been in receipt of DLA.  The appeal submission, prepared for the appeal tribunal hearing, indicated that the papers relating to the previous award were held by the clerk to the appeal tribunal and available for consideration.  A written submission prepared by Mr McCloskey for the appeal tribunal hearing makes reference to the previous award.  Mr McCloskey also referred to the previous award in his oral submissions at the appeal tribunal hearing.  The statement of reasons for the appeal tribunal’s decision in respect of the mobility component of DLA begins with a confirmation that Mr McCloskey’s submission was that he wished the appeal tribunal to ‘… consider the award of the Lower Rate Mobility Component which had previously been in payment.’

18.	Thereafter, and as was noted above, the appeal tribunal’s duty was to outline and explain to the appellant why she did not satisfy the conditions of entitlement to the lower rate of the mobility component of DLA.  This is where the second issue raised by Mr McCloskey comes into focus.  He challenges the basis on which the appeal tribunal concluded that the conditions of entitlement to the lower rate of the mobility component of DLA were not satisfied.  There are several grounds to that challenge.  The first relates to the appeal tribunal’s findings with respect to the appellant’s ability to drive. In the statement of reasons for the appeal tribunal’s decision with respect to the mobility component of DLA, the appeal tribunal recorded the following:

‘The Tribunal was asked to consider the award of the Lower Rate Mobility Component which had previously been in payment.  The Tribunal found that (the claimant) has significant depression treated by medication.  The Tribunal found that (the claimant) has insight and awareness of danger as set out by “Dr M” in the factual report.  The Tribunal found that while (the claimant) prefers not to go out and avoids social situations, she is able to drive her car which she does regularly to visit her parents.  We found that the act of driving her car even if it is for short journeys indicates that she has clarity of thought and awareness which would be such as to enable her to walk without either guidance or supervision on unfamiliar routes should she wish to do so.’

19.	Mr McCloskey submits that while ‘… the driving test can be a useful external test as to insight and awareness of danger, I do not feel that it will always be a suitable measurement of social phobia given the alternative evidence available in this case.’

20.	In C50/10-11(DLA), I cited paragraphs 77 to 78 of my decision in C12/08-09(DLA), as follows:

‘28.	In C12/08-09(DLA), I said the following, at paragraphs 77 to 78:

77.	Additionally, the ability to drive, even on familiar routes, is evidence of clear headedness and competency which is relevant to the ability to walk on unfamiliar routes without guidance and supervision.  In R1-07(DLA), at paragraph 9, Mrs Commissioner Brown stated that:

	‘I consider the Department’s submission to be correct in that the tribunal concluded that the ability to plan a journey, drive a car and therefore react to road conditions was indicative of clear headedness and competency.  Such clear headedness and competency is a matter which is obviously relevant to the ability to walk on unfamiliar routes without guidance or supervision.  I consider the Department to be correct that it was the possession of those abilities upon which the tribunal relied, not the claimant’s ability to use familiar routes.  When driving no matter whether a route is familiar or not there can be varying traffic conditions, emergency situations, pedestrians etc.  The ability to drive even on familiar routes is evidence of clear headedness and competency.  It is quite obvious from the tribunal’s findings, where it specifically referred to the ability to walk on unfamiliar routes, that it has not misinterpreted the test for the lower rate of the mobility component.  It has merely used the evidence of driving as showing clear headedness and competency indicative of ability to walk unsupervised and unaccompanied.’

78.	Once again, therefore, the ability to drive on familiar routes, such as to and from the place of employment, can and should be taken into account in assessing the ability to walk without guidance or supervision.’

21.	In the instant case, I am wholly satisfied that the assessment by the appeal tribunal of the evidence concerning the appellant’s ability to drive, and its relationship to her requirement for guidance and/or supervision while walking out of doors on routes which are not familiar to her, is wholly in keeping with the principles in both R1/07(DLA) and C50/10-11(DLA).  Accordingly, I do not agree that the decision of the appeal tribunal is in error of law on the basis of this submitted ground.

22.	I consider, therefore, that the appeal tribunal was entitled to take into account the appellant’s ability to drive and assess whether this amounted to evidence of ‘… clear headedness and competency indicative of ability to walk unsupervised and unaccompanied’ to use the words of Mrs Commissioner Brown.  To be fair to Mr McCloskey he acknowledges that position.  He submits, however, that other factors should be considered depending on the circumstances.

23.	It is clear, however, that the appeal tribunal did not base its decision that there should be no entitlement to the lower rate of the mobility component of DLA simply on the evidence of clarity of thought and awareness based on an ability to drive.  As was noted above, the appeal tribunal also concluded that ‘… (the claimant) has insight and awareness of danger as set out by Dr M…… in the factual report.’  The reference to the ‘factual report’ is to a report completed by the appellant’s general practitioner (GP) on 18 June 2009 and a copy of which was attached to the original appeal submission as Tab No 3.  At question 6 of that factual report the appellant’s GP was asked to give details of, inter alia, the effects of the appellant’s disabling condition on her insight and awareness of danger.  The response of the GP was ‘normal’.  Additionally, the appeal tribunal had before it a copy of a questionnaire completed by the appellant’s GP at the request of the appellant’s representative and for the purposes of the appeal tribunal hearing.  The GP was asked whether the appellant would require help or support to go out of doors to unfamiliar places.  The response of the GP was ‘Requires encouragement to leave the house’.  Finally, the appeal tribunal had the benefit of hearing from and seeing the appellant herself and assessing her oral evidence together with all of the other evidence which was before it.

24.	With respect to the submission which has been made by Mr McCloskey it seems to me that the appeal tribunal has arrived at its decision on the basis of an assessment of all of the evidence which was before it.  That evidence included the evidence of clarity of thought and awareness based on an ability to drive but the appeal tribunal’s conclusions were not based solely on that evidence.

25.	The second basis on which Mr McCloskey challenges the appeal tribunal conclusions that the conditions of entitlement to the lower rate of the mobility component of DLA were not satisfied was that in connection with its decision with respect to the care component of DLA the appeal tribunal had found that the appellant required encouragement to go outdoors.  Mr McCloskey submits that this is a factor which the appeal tribunal should have taken into account in assessing whether the appellant satisfied the conditions of entitlement to the lower rate of the mobility component of DLA.

26.	I begin by noting that the appeal tribunal accepted the appellant’s evidence that she did require encouragement to go outdoors.  The appellant’s oral evidence in this regard was, of course, corroborated by evidence of the appellant’s GP, as set out in the questionnaire completed by him/her in response to the request by the appellant’s representative.  It is clear that the appeal tribunal has aggregated the appellant’s requirement for encouragement to go outdoors into her requirements for attention (which can include a reasonable requirement for attention) in connection with the care component of DLA.  I find no fault with the appeal tribunal’s conclusion in that respect.

27.	Section 73(1)(d) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended provides that:

‘… 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 through which-

…

(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.'

28.	It cannot be the case that a finding that a claimant has a reasonable requirement to go outdoors, as part of an assessment of the claimant’s reasonable requirements for attention in connection with the care component of DLA, is definitive of a conclusion that the claimant has a reasonable requirement for guidance and supervision while walking out of doors on routes which are not familiar to him.  Once again, to be fair to Mr McCloskey I do not believe that he is making that link.  Mr McCloskey’s submission is that the appeal tribunal, having found that the appellant did require encouragement to go outdoors, had a duty to go on to determine whether the appellant had a reasonable requirement for guidance and supervision while walking out of doors on routes which were not familiar to her.  For the reasons which I have set out above, I am of the view that the appeal tribunal has undertaken that task and has set out, in a reasonable manner, its reasons for its decision on that question.

29.	It is also important to remember that the conditions of entitlement to the care and mobility component are separate and distinct.  The fact that the conditions of entitlement to one component, or a rate of that component, are satisfied does not lead to an automatic satisfaction of the conditions of entitlement to the other component, or rate of that component.  In this sense there is no ‘passporting’ of entitlement – see the decision of Mrs Commissioner Brown in C21/01-02(DLA).

30.	I would add the following comments although they are not strictly necessary for my decision in this appeal.  The emphasis in the test for the lower rate of the mobility component of DLA in section 73(1)(d) of the Social Security Contributions and Benefits (Northern Ireland Act 1992, as amended, is the claimant’s reasonable requirement for guidance and supervision from another person while walking out of doors on routes which are not familiar to him.  The accent is on what is happening when the claimant is outdoors and the claimant’s reasonable requirement for guidance and supervision to take advantage of the faculty of walking while outdoors.  It is difficult, therefore, to see how motivation to commence the process of getting outdoors, without more, could satisfy the relevant test.  Further, and more significantly, it is difficult to see how such motivation can amount to guidance or supervision which concepts are targeted or focused on physical direction or leading or accompaniment, monitoring for signs of a need to intervene – see the decision of the Commissioner in Great Britain in CDLA/42/94.

31.	Finally, Mr McCloskey also challenges the appeal tribunal’s decision not to renew the previous award of entitlement to the lower rate of the mobility component of DLA on the basis that the appeal tribunal had been given evidence of a deterioration in the appellant’s medical condition since the date of the previous award of entitlement.  There is no doubt that the appeal tribunal accepted that there had been a deterioration in the appellant’s problems with depression due to her gynaecological problems.  There is a statement to that effect in the reasons for the appeal tribunal’s decision with respect to the care component of DLA.  I am reminded that evidence of a diagnosis of a medical condition or the labelling of a medical condition in itself is not definitive of entitlement to DLA and what is more important are the care and mobility needs arising from a diagnosis or label (see the decision of Mrs Commissioner Brown in C19/99(DLA)).  It seems to me that similar principles apply to the concept of deterioration.  Deterioration in a medical condition does not necessarily initiate automatic entitlement to DLA.  What is important is a determination of the care and mobility needs arising from the medical condition taking into account the evidence of deterioration.  In the instant case, that is what the appeal tribunal did.  While accepting that there had been a deterioration in the appellant’s depression it did not accept, for reasons which were set out in an adequate manner, that the conditions of entitlement to the lower rate of the mobility component were satisfied.

32.	I have considered Mr McCloskey’s final submission which is directed to the appeal tribunal’s conclusion that the appellant did not satisfy the conditions of entitlement to the middle rate of the care component of DLA.  The appeal tribunal’s reasons for rejection of a claim to entitlement to the middle rate of the care component were as follows:

‘The Tribunal did not find that an award of Middle Rate Care was appropriate because there is no physical help required in respect of bodily functions and the level of help required for depression does not amount to frequent attention throughout the day as (the claimant) is able to remain at home alone for significant parts of the day and at night.’

33.	It is important to note that the appeal tribunal had already accepted that the appellant had a reasonable requirement for attention in connection with her bodily functions for a significant portion of the day and, accordingly, accepted that she had an entitlement to the lowest rate of the care component of DLA.  The basis for Mr McCloskey’s challenge to the appeal tribunal’s conclusions is that ‘… the ability to remain at home alone for significant part of day is an insufficient indicator of the level of care needs.  The Tribunal must consider beyond this fact what the claimant would reasonably require with her care needs.’

34.	Mr McCloskey is entirely correct to submit that the test is whether attention is reasonably required rather than whether it is actually provided.  In R v Secretary of State for Social Services, ex parte Connolly ([1986] 1 All ER 998), Lord Justice Slade referred to the decision of the Commissioner in CA 26/1979, in which the Commissioner had stated that, in his judgment the word “required” should be interpreted as meaning “reasonably required”.  Lord Justice Slade thought that the correctness of this proposition could not be challenged.  In Secretary of State for Social Security v Fairey ([1997] 3 All ER 844), thought that the interpretation of ‘requires’ as meaning ‘reasonably required’, set out in Connolly had not since been the subject of question.  That conclusion was confirmed by the Commissioner in CDLA/5216/1998.

35.	Nonetheless, I am satisfied that an adjudicating authority, such as an appeal tribunal, is entitled to assess the evidence of the level of attention which is actually provided to a claimant when determining the overall question of whether such attention is reasonably required.  In the instant case, there was no uncertainty that the appellant was at home on her own for the greater part of the day and at night.  Thereafter, however, and contrary to the submission made by Mr McCloskey, the appeal tribunal did assess the level and degree of attention reasonably required by the appellant.  That level and degree was for a significant portion of the day but was not reasonably required on a frequent basis throughout the day.  The appeal tribunal has arrived at a definitive conclusion that the appellant did not require physical help in respect of her bodily functions and has concluded that attention by way of motivations or encouragement, frequently throughout the day, was not reasonably required.  The appeal tribunal’s conclusions in respect of this issue are sustainable and are not, with respect to Mr McCloskey’s submission, in error of law.

	Disposal

36.	The decision of the appeal tribunal dated 4 June 2010 is not in error of law.  Accordingly, the appeal to the Social Security Commissioner does not succeed.  The decision of the appeal tribunal to the effect that the appellant is entitled to the lowest rate of the care component of DLA for the period from 24 October 2009 to 23 October 2011 and is not entitled to the mobility component of DLA from and including 24 October 2009 is confirmed.

(signed):  Kenneth Mullan

Chief Commissioner

20 August 2012