KMcA-v-Department for Social Development (DLA) [2015] NICom 19
Decision No:  C25/14-15(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 21 June 2013

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 21 June 2013 is in error of law.  The error of law identified will be explained in more detail below.  Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

2.	For further reasons set out below, I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given.  This is because there is detailed evidence relevant to the issues arising in the appeal, including medical evidence, to which I have not had access.  An appeal tribunal which has a medically qualified panel member is best placed to assess medical evidence and address medical issues arising in an appeal.  Further, there may be further findings of fact which require to be made and I do not consider it expedient to make such findings, at this stage of the proceedings.  Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.  In referring the case to a differently constituted appeal tribunal for re-determination, I direct that the appeal tribunal takes into account the guidance set out below.

3.	It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of her entitlement to disability living allowance (DLA) remains to be determined by another appeal tribunal.  In accordance with the guidance set out below, the newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal.

	Background

4.	On 24 January 2013 a decision-maker of the Department for Social Development (the Department) decided that the appellant should not have an entitlement to DLA from and including 3 January 2013.  Following receipt, on 8 March 2013, of a letter disputing the relevant decision on 13 March 2013 the decision dated 24 January 2013 was reconsidered but was not changed.  The appeal was received on 19 April 2013.

5.	The appeal tribunal hearing took place on 21 June 2013.  The appellant was present and was accompanied by her husband.  There was no Departmental Presenting Officer present.  The appeal tribunal disallowed the appeal and confirmed the decision dated 24 January 2013.

6.	On 13 February 2014 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS) from James Ballentine & Son now representing the appellant.  On 20 February 2014 the application for leave to appeal was refused by the legally qualified panel member (LQPM).

	Proceedings before the Social Security Commissioner

7.	On 14 April 2014 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 22 May 2014 observations on the application were sought from Decision Making Services (DMS) and these were received on 12 June 2014.  In these written observations, Mrs Hulbert, for DMS, supported the application on one of the grounds submitted on behalf of the appellant.  Written observations on the application for leave to appeal were shared with the appellant and her representative on 12 June 2014.

8.	On 15 August 2014 I accepted the late application for special reasons.  Following a request for an extension of time to reply to the Department’s written observations, the appellant’s representative provided such a reply on 1 September 2014.  Written observations in reply were shared with Mrs Hulbert on 25 November 2014.

9.	On 18 December 2014 I granted leave to appeal.  In granting leave to appeal, I gave, as a reason, that an arguable issue arose as to the manner in which the appeal tribunal applied the legislative test in section 72(1)(a)(ii) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended.  I also determined that an oral hearing of the appeal would not be required and invited further submissions from the appellant’s representative.  Further correspondence was received from the appellant’s representative on 18 January 2015.

Errors of law

10.	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.  What is an error of law?

11.	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.”

	Analysis

12.	The first ground on which the appellant’s representative has submitted the decision of the appeal tribunal is in error of law is as follows:

‘The Tribunal in applying the law made assumptions because [the] appellant could drive a car she could chop and peel vegetables – Also consider incorrect assumption that you do not have to stand at all to cook a meal.’

13.	In the record of proceedings for the appeal tribunal hearing the following exchange between the appellant and the medically qualified panel member of the appeal tribunal is recorded:

‘… I was very independent until 5 years ago.  Hard to use crutch but most days can drive an automatic but hardly out the door.  6 miles round trip to friend not every day, the 3 days he is working.  Not every week.

…

Right shoulder problem I’m right handed.  Can’t use it to lift or hoover or cook.
Worse over last year. Surgery 20.7.13

Main meal test
I can’t lift saucepans or kettle with left hand.  I can use the grill.  I can use the oven.  Husband and Nicola make the dinner.  Can’t peel/chop – arm is really sore.  I can hold steering wheel and use left hand.  He makes the dinner.’

14.	In the statement of reasons for the appeal tribunal decision, the following is recorded:

‘We have disallowed the main meal test because:-

-	it was not claimed in the DLA1;

-	the GP does not refer to it 21.1.13;

-	appellant indicated in her oral evidence (contrary to her DLA1) that she needed help because she cannot lift with her left hand; we do not accept this as she can drive a car and states she can use the grill and oven, if she can drive a car we do not accept that she cannot peel and chop vegetables;

-	her daughter’s letter seems to suggest she cannot prepare or cook a main meal because she can stand for just 10 minutes; even if we accepted this, preparing and cooking a main meal for one person does not necessarily involve standing at all;

-	Mr P’s letter (10.5.13) does not refer to problems with the left hand.’

15.	I begin with the first stated reason which was that entitlement to the lowest rate of the care component through satisfaction of the legislative test in section 72(1)(a)(ii) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, was ‘not claimed in the DLA1’.  This is a reference to the appellant’s completed claim form to DLA, a copy of which was attached to the original appeal submission as Tab No 1.  The purpose of the claim form is, of course, for the claimant to provide information and details in order that the decision-maker may deduce whether the legislative tests of entitlement to DLA are satisfied.

16.	At page 23 of the form, the appellant was asked the question ‘Do you usually have difficulty or do you need help with cutting up food, eating or drinking?’ the appellant’s response was to tick the box ‘No’.  At page 28 the appellant is asked the question ‘Would you have difficulty preparing and cooking a main meal for yourself?’  Once again the appellant responds by ticking the box ‘No’.

17.	I have some concerns, however, that the appeal tribunal may have been drawing an adverse inference about the appellant’s credibility in claiming to satisfy the conditions of entitlement in section 72(1)(a)(ii) at the oral hearing of the appeal when her earlier submission, at the initial claim stage, was to deny any such entitlement.

18.	In JK v Department for Social Development (DLA) ([2014] NICom 43, C24/13-14 (DLA)), the appeal tribunal had concluded, in a more overt manner than in the instant case, that because the appellant had provided evidence, in his original claim form to DLA, that there was potential entitlement to the mobility component and middle or highest rate of the care component, and was, by the time of the appeal tribunal hearing, abandoning any such claim, then that went to his credibility.  The abandonment of the potential entitlement had been made through a concession by the appellant’s representative.  At paragraph 25 I stated:

‘Was the appeal tribunal entitled to link the concession with an adverse and negative assessment of the appellant’s credibility without more?  In my view, it was not.  Where the appeal tribunal was intending to connect the apposite and constructive concession by the appellant’s representative with a damaging assessment of the appellant’s credibility, then, in my view, the interests of justice placed it under a duty to raise its concerns about what it perceived to be a conflict between the evidence in the original claim for DLA, laying claim to certain components or rates, and the abandonment of any such claim at the appeal tribunal hearing with the appellant and his representative.  Ms McElroy submitted that she was startled that the appeal tribunal has used her concession in this manner.  I can understand her bewilderment.  I am of the view that the appeal tribunal was required to explore its concerns with the appellant and his representative’

19.	Applying those principles to the instant case, it seems to me that the interests of justice placed the appeal tribunal under a duty to raise its concerns about what it perceived to be a conflict between the evidence in the original claim form to DLA, refuting potential entitlement to the lowest rate of the care component through satisfaction of the ‘main meal test, and the adoption of any such claim at the appeal tribunal hearing.

20.	It is important to remember that the appeal tribunal has an inquisitorial role – see C37/9-10 (DLA).  It may have been the case that the appellant was claiming that her circumstances – in particular, her ability to complete the tasks associated with the preparation of a cooked main meal - had changed between the date of the completion of the form and the date of the oral hearing of the appeal.  The appeal tribunal did not explore that possibility with the appellant.  I accept, of course, that any change of circumstances post-dating the decision under appeal would not be relevant.  I am of the view, however, that the adoption, as a reason to deny entitlement, the fact that such entitlement was not claimed in the original claim form but was claimed at the oral hearing of the appeal, without further exploration of the reasons for the change of position, is problematic.  It is not, however, sufficiently problematic, in itself, to render the decision of the appeal tribunal as being in error of law.

21.	I turn to the appeal tribunal’s second reason, namely that ‘The GP does not refer to it 21.1.13.’  This is a reference to a Factual Report completed by the appellant’s general practitioner (GP) on 21 January 2013 at the request of the Department.  The form of Factual Report which was sent to the GP is common to claims to DLA and is called ‘DBD 370(N) GPFR (Clinical)’.  A copy of the Factual Report completed by the appellant’s General Practitioner in the instant case is attached to the appeal submission as Tab No 2.

22.	In section 6, the GP is asked the following:

‘Please give details, if known, of the effects of the disabling condition(s) on day to day life:

(a)	Self-care – for example, washing, dressing, feeding, using the toilet, continence, ability to rise from the chair and ability to communicate

(b)	Insight and awareness of danger

(c)	Ability to get around including pain, gait, balance, breathlessness, visual loss and communication difficulties.’

23.	At paragraphs 36 to 38 of my decision in JAB v Department for Social Development (DLA) ([2010] NICom 25, C3/09/10 (DLA), I said the following:

	36.	I accept the description, set out in the skeleton arguments of both the appellant’s representative and DMS, of the background to the function and format of factual reports utilised by the Department as part of the evidence-gathering process with respect to decision-making in connection with DLA.  I also accept that the format of such reports and, most significantly, the questions asked in such reports, have changed over a period of time.  DMS, in answer to the question which I posed concerning the link between the questions asked in the factual reports to the tests for entitlement to DLA, stated:

‘The General Practitioner’s Factual Report is currently designed to ask certain diagnostic questions and the effect of a claimant’s condition to perform certain tasks in their day to day life and their ability to get around.  The questions asked are geared towards the entitlement conditions to DLA and if completed properly and with sufficient detail should help the decision maker and tribunals in deciding whether or not a claimant satisfies the entitlement conditions for that benefit.’

	37.	In CDLA/2519/2008, Upper Tribunal Judge Jacobs stated, at paragraph 15:

‘15.	Medical questionnaires cannot in practice be worded in the precise terms of the legislation and case law.  They are addressed to professionals in terms that they can understand and answer.  The tribunal has to analyse those answers, in context of the questions and the evidence as a whole, and apply the statutory tests to that analysis.  As part of that analysis, the tribunal will have to consider whether, in the circumstances of the case, there may be relevant information that was not caught by the way a particular question was worded.  If there may be, it will have to consider whether, and if so, how that evidence could reasonably be obtained.  If there is a hearing, one obvious possibility is to question the claimant.  If the case is being decided on the papers, the tribunal will have to consider whether an adjournment is appropriate in the circumstances of the case and whether it is realistic to expect more specific evidence to be forthcoming.  The possibility of drawing inferences from the available evidence will be a relevant factor to take into account.  If the claimant is represented, the tribunal is entitled to expect that the representative will have obtained whatever evidence the claimant wishes to be obtained and put before the tribunal.’
38.	In the instant case, having perused the contents of the factual report, I cannot find any section where the GP is asked a direct question relevant to the conditions of entitlement to the lower rate of the mobility component of DLA, namely whether the appellant is so severely disabled that disregarding any ability she may have to use routes which are unfamiliar to her on her own, she cannot take advantage of the faculty of walking out of doors without guidance and supervision most of the time, set out in sections 73(1)(d) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992.’

24.	I would add the following to that analysis.  Having perused the contents of the Factual Report, I cannot find any section where the GP is asked a direct question relevant to the conditions of entitlement to the lowest rate of the care component of DLA namely whether the appellant is so severely disabled physically or mentally that she cannot prepare a cooked main meal for herself if she has the ingredients, set out in section 72(1)(a)(ii) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended.

25.	In the instant case, the appellant’s GP has responded to question 6(a) as follows:

‘Able to wash/toilet. Difficulty in R shoulder (Therefore) little cooking’

26.	Accordingly, the appeal tribunal’s statement that the ‘GP does not refer to it’ is, quite simply, erroneous.  For the appeal tribunal to rely on such a statement as a reason to deny entitlement to the lowest rate of the care component is aberrant.

27.	In any event, even if the GP had said nothing about the appellant’s ability to prepare a main meal for herself in the Factual Report, the following principles apply.  In paragraphs 30 to 37 of his decision in MM v Department for Social Development (DLA) ([2014] NICom 12, C20/13-14 (DLA)), Commissioner Stockman stated the following:

‘30.	The tribunal has relied on a lack of comment in the factual report of the GP, noting that it was a particularly detailed, exhaustive commentary of the effects of the condition and saying “the absence of any remark on lack of motivation to prepare a main meal indicates to us that this is not a significant problem and that while (the applicant) has described its occurrence as “frequent” in reality we do not, on the basis of the GP report, accept that he cannot prepare a cooked main meal for himself most of the time”.

31.	In CDLA/4580/2003, former Great Britain Commissioner Jupp was concerned with a tribunal which had relied upon a GP factual report where the GP had said “not known” in response to a question about the appellant’s walking distance.  The tribunal in that case had relied upon this entry to support a finding that the appellant had no significant walking problems.  The logic of the tribunal’s position was that if the GP was not aware of walking limitations, the appellant could not have any.

32.	At paragraph 11, Commissioner Jupp said:

		“I accept that it is clear that the tribunal interpreted the general practitioner’s statement that he did not know what distance the claimant could walk before the onset of severe discomfort as meaning that the claimant did not have any difficulty with walking; what I do not accept is that the tribunal was right to make this interpretation.  Although it is an interpretation often made, it is without justification.  If a doctor cannot confirm that a patient has no walking problems, this raises an equal possibility that the claimant may have such problems.”

33.	Further at paragraph 12, she said:

		“Where a general practitioner states “unknown” in response to the request for information as to the distance the claimant can walk before the onset of severe discomfort, the tribunal must treat that reply as neutral, in the absence of further qualification or amplification, and the doctor’s comment is not a basis for a finding of fact”.

34.	I consider that Commissioner Jupp was right in her approach to that situation.  Where there is no other evidence to support such a finding, I believe that the absence of a direct comment addressing a relevant factor under a statutory test cannot be equated to evidence to the effect that that statutory test is not satisfied.

35.	In the GP factual report, there are pro forma questions, including at box 6(a) “Self-care – for example, washing, dressing, feeding, using the toilet, continence, ability to rise from the chair and ability to communicate”.  The particular GP replied “OK”.  This question addresses, as I understand it, aspects of bodily functions relevant to the test for attention under section 72(1)(a)(i), 72(1)(b)(i) and 72(1)(c)(i).  Thus, while the GP factual report elicits information about care needs in the classic sense articulated by Lord Denning in Packer [1981] 1 WLR 1017, I do not understand it to address the separate main meal test under section 72(1)(a)(ii).  No specific question is addressed to the main meal test.

36.	I consider that the doctors who are asked to complete the GP factual report cannot be expected to have sufficient knowledge of the legislation governing DLA to volunteer information about main meal preparation.  I consider that the absence of a remark on preparing a main meal should not be taken to infer that the appellant can perform that activity.  However, the absence of a comment on motivation to cook by the GP was the tribunal’s reason for not accepting the evidence of the applicant, as supported by the report of Dr S and Dr M.

37.	I consider that the tribunal has erred in law in its approach to the evidence on the main meal test.  I must set aside the decision of the appeal tribunal accordingly.’

28.	The appeal tribunal’s third reason for denying entitlement to the lowest rate of the care component on the basis of the of the legislative test in section 72(1)(a)(ii) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, was that:

‘Appellant indicated in her oral evidence (contrary to her DLA1) that she needed help because she cannot lift with her left hand; we do not accept this as she can drive a car and states she can use the grill and oven, if she can drive a car we do not accept that she cannot peel and chop vegetables.’

29.	In CDLA/1572/2005, Mr Commissioner Jacobs stated the following at paragraph 21 of his decision:

‘21.	The issue for an appeal tribunal is whether the claimant 	‘is so severely disabled physically or mentally that he cannot prepare a cooked main meal for himself if he has the ingredients’.  (Section 72(1)(a)(ii) of the Social Security Contributions and Benefits Act 1992.)  In deciding that issue, the tribunal may take account of any evidence that is relevant.  A good inquiry into the claimant’s ability to cook will focus on the precise disabilities that are said to hamper the claimant in cooking.  Examples may be lack of grip, poor balance, inability to bend and so on.  The tribunal would need to inquire whether those disabilities are consistent with the evidence of the claimant’s medical condition and medication.  It will also use as a cross-check whether the claimant experiences the same disabilities in performing other functions.  Take poor balance as an example.  This may manifest itself while cooking, but it is hardly likely to be limited to cooking.  If the claimant does not report poor balance at any other time, the tribunal may conclude that it is improbable that he is experiencing it while cooking.  If the claimant’s alleged impediment in cooking involves a function that is involved in driving, the tribunal may use evidence of the ability to drive to show that the cooked main meal test is not satisfied.  The key is obviously to ensure that the function involved in driving and in cooking is truly the same.  If it is, the evidence is relevant and admissible.  It is my experience that, if tribunals go wrong in using evidence in this way, they do so by drawing inferences rather than questioning the claimant about both activities (cooking and driving, for example) to ensure that there is a true comparison.  This does not, of course, mean that the tribunal has to accept the claimant’s explanation, only that the inquiry should be made.’

30.	In the instant case, I am of the view that the reasoning of the appeal tribunal falls into the error identified by Mr Commissioner Jacobs as amounting to an inference and that the appeal tribunal did not undertake the questioning about both activities of driving and cooking with the appellant to a rigorous enough extent.

31.	The appeal tribunal’s penultimate reason for refusing entitlement to the lowest rate of the care component was:

‘Her daughter’s letter seems to suggest she cannot prepare or cook a main meal because she can stand for just 10 minutes; even if we accepted this, preparing and cooking a main meal for one person does not necessarily involve standing at all’

32.	In her written observations on the application for leave to appeal, Mrs Hulbert has submitted that:

‘Whilst (the claimant’s) daughter has stated the fact that her mother cannot stand for longer than 10 minutes would also prevent her from being able to prepare a main meal, the use of aids is an issue that should be considered.  In this case the use of a perching stool could mean that the appellant would not have to stand for long periods of time and could rest between periods of movement.  In unreported decision C98/10-11(DLA) at paragraphs 24-25 Chief Commissioner Mullan considered the use of a perching stool to aid in the preparation of a main meal

“At the oral hearing of the appeal, a further issue arose, namely the appeal tribunal’s conclusion that the appellant’s problems with standing as part of the activities associated with the preparation of a cooked main meal could be alleviated by the use of a perching stool.  Ms Kyne submitted that whether the use of a perching stool in this context was not and should have been put to the appellant.  In paragraph 32 of CDLA/770/00, Commissioner Fellner noted that reasonableness did play:

‘… some part in considering … whether sitting down is a fully adequate way of cooking a main meal, or whether getting up and down which probably is essential from time to time brings its own problems.  A high stool may not be a complete answer.’

Nonetheless, I also accept that, equally, the use of a perching stool may be the answer.  The decision as to whether the use of a perching stool as a reasonable device to assist, to alleviate problems with standing when preparing a cooked main meal is for the appeal tribunal to answer.  In assessing that question, however, it should, in my view, put the issue to the appellant.”

In this instance the tribunal has failed to put the suggestion of the use of a perching stool to (the claimant) and as such it is my submission that the tribunal has further erred in law.’

33.	I agree with the submission which has been made by Mrs Hulbert.  The statement that ‘… preparing and cooking a main meal does not necessarily involve standing at all’ is a little blunt.  I accept what was said by Commissioner Fellner in CDLA/77/00.  Reasonableness must play some part.  In CDLA/2267/95, Mrs Commissioner Heggs stated, at paragraph 9:

‘...It cannot be overstressed that the "main meal" at issue is a main reasonable daily meal for one person.  It follows that the use of heavy pans or dishes are (sic) not necessary for the preparation of such a meal.  Nor is it necessary to use the oven.  If the claimant is unable to stand for any length of time, such a meal can be prepared and cooked while sitting on a high stool or chair if necessary.  It is all a question of what is reasonable in the circumstances of the case.’

34.	It seems to me that if the appeal tribunal had in mind that the appellant could avail of an aid such as a perching or other high stool to alleviate the adverse consequences of standing to prepare a cooked main meal then that possibility should have been put to her.

35.	The final reason given by the appeal tribunal was that ‘Mr P’s letter (10.5.13) does not refer to problems with the left hand.’  This a reference to a report from a Consultant Trauma and Orthopaedic Surgeon, dated 10 May 2013, and which had been submitted to the appeal tribunal by the appellant.  There is a copy of the relevant report in the file of papers which is before me.  It seems to me that the Consultant did not mention problems with the left hand as he was being asked to comment on the appellant’s problems with impingement of her right shoulder.

36.	Overall, I have concluded that while none of the individual concerns with the manner in which the appeal tribunal applied the legislative test in section 72(1)(a)(ii) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, render its decision as being in error of law collectively its reasoning on the question is sufficiently problematic so to do.

	The appellant’s other grounds for appealing to the Social Security Commissioner

37.	Having found that the decision of the appeal tribunal is in error of law on the basis of my analysis set out above, I do not have to consider the appellant’s other grounds for appealing.  I would indicate, however, that I would not have found the decision of the appeal tribunal to be in error of law on the other grounds cited by the appellant.

	Disposal

38.	The decision of the appeal tribunal dated 21 June 2013 is in error of law.  Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

39.	I direct that the parties to the proceedings and the newly constituted appeal tribunal take into account the following:

(i)	the decision under appeal is a decision of the Department, dated 24 January 2013 in which a decision maker of the Department decided that the appellant should not have an entitlement to DLA from and including 3 January 2013;

(ii)	the Department is directed to provide details of any subsequent claims to DLA and the outcome of any such claims to the appeal tribunal to which the appeal is being referred.  The appeal tribunal is directed to take any evidence of subsequent claims to DLA into account in line with the principles set out in C20/04-05(DLA);

(iii)	it will be for both parties to the proceedings to make submissions, and adduce evidence in support of those submissions, on all of the issues relevant to the appeal; and

(iv)	it will be for the appeal tribunal to consider the submissions made by the parties to the proceedings on these issues, and any evidence adduced in support of them, and then to make its determination, in light of all that is before it.

(signed)  K Mullan

Chief Commissioner

2 June 2015