MMcN-v-Department for Social Development (DLA) [2013] NICom 62
Decision No:  C35/12-13(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 27 February 2012

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is a claimant’s appeal from the decision of an appeal tribunal sitting at Belfast on 27 February 2012, leave having been granted by the legally qualified member (LQM) of the tribunal.

2.	An oral hearing of the appeal has not been requested.

3.	For the reasons I give below, I disallow the appeal.

REASONS

	Background

4.	The appellant had claimed disability living allowance (DLA) from the Department for Social Development (the Department) on 24 September 1999, based on needs arising from osteoporosis, angina and stress incontinence. On 12 January 2000 she was awarded the high rate of the mobility component and the middle rate of the care component for an indefinite period.

5.	The appellant completed a periodic enquiry form issued by the Department on 9 February 2011. A report was provided by her GP.  She was subsequently examined by an examining medical practitioner (EMP).  On 1 July 2011 the Department superseded the decision of 12 January 2000, reducing her award to the lowest rate of the care component on the basis of the main meal test.  She appealed.

6.	The appeal was heard by a tribunal which maintained the award of low rate care component but disallowed all other aspects of the appeal.  The appellant requested a statement of reasons, which was issued to the appellant on 25 September 2012.  On 11 October 2012 the appellant requested leave to appeal to the Social Security Commissioner from the LQM of the tribunal.  Leave to appeal was granted on 30 October 2012.  The appellant then submitted her appeal to the Office of the Social Security Commissioners on 19 November 2012.

	Submissions

7.	The appellant relies on the grounds submitted to the LQM, namely:

(i)	the tribunal did not apply correct law or wrongly interpreted the law, and in particular did not address legal points made in her written submission to it;

(ii)	the tribunal did not follow correct procedures – in particular it addressed questions relevant to employment and support allowance (ESA) rather than DLA, but it also erred due to delay in issuing the statement of reasons;

(iii)	the tribunal decision was irrational as not based on sufficient evidence;

(iv)	the tribunal’s reasons were inadequate; 

(v)	the tribunal breached her rights under the Human Rights Act 1998, particularly through the questions of one panel member. 

8.	The LQM in granting leave has not identified the point of law on which he accepts it is arguable that the tribunal has erred in law.  He, however, takes issue with a passage on the penultimate page of the original application letter whereby a statement criticising another panel member’s questioning was attributed to him.  However, this is a misunderstanding based on a typing omission in the original text.  The appeal amends the original text of the application to include the word “not”, and is a complaint that the legal member did not intervene to restrict the panel member’s questioning.

9.	The Department was directed to make observations on the appeal grounds. Mr Kirk responded on behalf of the Department.  He indicated that the Department did not accept that the tribunal had erred in law and he indicated that the Department opposed the appeal.

	The tribunal’s decision

10.	The tribunal set out its approach to the evidence in clear and comprehensive terms. It is clear that in determining the appeal it placed most weight on the evidence of the examining medical practitioner, finding a report of Dr M.............. which stated “no known limitation” and out of date notes from occupational therapy to be of limited assistance.  It further assessed that evidence from Dr C..... was not reflective of the doctor’s opinion, but a report of what the doctor had been told by the appellant.  The tribunal found the written submissions of the appellant to the tribunal to have been of limited value, as they did not address the statutory conditions of entitlement.  On the basis of all the evidence, including the medical notes and records, the tribunal did not accept that the appellant’s care and mobility needs were as extensive as stated by her in oral evidence.  This was a matter of credibility.  The tribunal accepted that the evidence suggested a relevant change of circumstances since the decision awarding DLA, and therefore that grounds to supersede the original award were established.  The tribunal accepted that evidence supported entitlement to low rate care component on the basis of the main meal test.

	Assessment

11.	The appellant submits that the tribunal has erred in law as it did not apply the correct law or wrongly interpreted the law.  It is submitted that because the tribunal has not referred to any case law in support of its decision it has erred.  However, it is not evident from the papers that the appellant relied on any case law in her submissions to the tribunal.  She does not elaborate by citing any relevant precedent which the tribunal has wrongly applied. I find that the tribunal has addressed the correct statutory tests of entitlement and has not erred in law as alleged.  If an argument based on relevant case law had been placed before the tribunal, I would have expected it to deal with the submission. That is not the case here, however.

12.	The appellant contends that delay in issuing the statement of reasons has rendered the decision erroneous in law.  The hearing took place in February 2012 and the reasons were issued in September 2012.  I accept that this is a relatively lengthy delay.  However, the decision was made on the day of hearing.  I see no basis for concluding that the delay in issuing reasons in the present case has led to any retrospective justification of the decision.  The reasons are based entirely on the record of evidence before the tribunal and the documentary evidence before the tribunal on the date of hearing.  They are entirely consistent with that evidence.

13.	The appellant contends that the questions asked at the tribunal were more relevant to ESA than DLA and that almost all of the questions were inappropriate.  Having regard to the record of proceedings I find this to be an entirely unarguable proposition.  The questions clearly relate to matters such as whether she was virtually unable to walk, whether she required attention from another person in connection with bodily functions and whether she required supervision from another person to avoid danger.

14.	I find that the tribunal had ample evidence on which to base its decision.  I find the tribunal’s reasons to be clear and relevant to the issues before it.  The contrary is unarguable.

15.	The appellant submits that her rights under the Human Rights Act 1998 and the European Convention on Human Rights (ECHR) were violated by the tribunal.  She elaborates that there was a clear breach of her “right to privacy” due to being asked a question by a panel member – when discussing a need for attention from another person when showering she was asked what part or parts of her body she could not wash independently.  She submits that this “crossed the line between assembling information and clearly invading and breaching my privacy in the tribunal”.

16.	Article 8 of the European Convention on Human Rights provides:

Right to respect for private and family life
1.	Everyone has the right to respect for his private and family life, his home and his correspondence.

2.	There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

17.	Article 8 of the ECHR contains the right to respect for private and family life, home and correspondence.  This is a qualified right – whereby there shall be no interference with the right by a public authority except such as is “in accordance with law and necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country …”.

18.	Tribunal proceedings are inquisitorial – that is to say it is the responsibility of the tribunal to adduce evidence or information relevant to the issues which it has to determine.  In the present case, as far as the care component of DLA was concerned, it was necessary for it to investigate the extent to which the appellant required attention in connection with bodily functions.  What amounts to a “bodily function” is not contentious for the purpose of the present case, where the tribunal was asking questions about the bodily function of washing or showering.  The tribunal was charged with a statutory responsibility for determining whether or not the appellant was entitled to DLA and could only discharge this function by eliciting the relevant information.

19.	As I indicated above, Article 8 is a qualified right.  That is to say the right balances the interests of the affected individual and the community in general.  One relevant factor in the balance is the economic well-being of the country.  The economic well-being of the country involves matters of public expenditure such as payment of social security benefits.  I consider that public authorities who must base questions of benefit entitlement on the establishment of particular facts have a right to seek to elicit those facts in order to ensure that public expenditure on a social security benefit is justified.

20.	I accept that the appellant was embarrassed by the question of the tribunal.  However, the question was necessary in order to assess the extent of the needs arising from the appellant’s disability.  The tribunal was entitled to direct the question to the appellant.  The tribunal is composed of a legal professional, a medical professional and a person with knowledge of disability – perhaps through personally having a disability, or through being a carer, or through working with disabled people in a professional role, such as that of an occupational therapist.  It is to be expected that such experienced people would ask questions in a manner which would not cause undue embarrassment.

21.	If the appellant chose not to answer particular questions aimed at establishing facts relevant to benefit entitlement, as was her right, the consequence might be that her proper entitlement to DLA was not established.  However, the tribunal cannot be faulted for that.  It is not an error of law to base a decision on the evidence actually adduced.  The tribunal did not violate the appellant’s human rights by making a decision solely on the established evidence which was relevant to entitlement.

22.	I therefore disallow the appeal. 

(signed):  O Stockman

Commissioner

30 August 2013