RMM-v-Department for Social Development (DLA) [2015] NICom 30
Decision No:  C37/14-15(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 1 April 2014

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is a claimant’s appeal from the decision of an appeal tribunal sitting at Omagh.

2.	An oral hearing of the appeal has been requested.  However, I consider that the appeal may properly be determined without a hearing.

3.	For the reasons given below, I grant leave to appeal on a single ground.  Under Article 15(8)(b) of the Social Security (NI) Order 1998 I allow the appeal on that ground.  I set aside the decision of the appeal tribunal and I direct that the appeal shall be reheard by a newly constituted tribunal.

	REASONS

	Background

4.	The applicant claimed disability living allowance (DLA) from the Department for Social Development (the Department) from 3 September 1997.  She was awarded high rate mobility component and low rate care component for an indefinite period.  The award was superseded from 5 June 2006 and from that date she was awarded the high rate of the mobility component and the middle rate of the care component for an indefinite period.

5.	On 24 March 2013, the applicant completed a DLA300A(Rev) form at the request of the Department.  She described mobility and care needs arising from a hiatus hernia, a “mini-stroke”, “cholesterol” and type 2 diabetes.  The Department obtained a report from the applicant’s general practitioner (GP) on 24 April 2013.  The Department obtained a report from an examining medical practitioner (EMP) on 31 August 2013.  On 17 September 2013 the Department decided on the basis of all the evidence to supersede the indefinite award of DLA and decided that the applicant did not satisfy the conditions of entitlement to DLA from and including 17 September 2013.  The applicant appealed.

6.	The appeal was considered by a tribunal consisting of a legally qualified member (LQM), a medically qualified member and a disability qualified member.  After a hearing on 1 April 2014 the tribunal disallowed the appeal.  The applicant then requested a statement of reasons for the tribunal’s decision and this was issued on 24 June 2014.  The applicant applied to the LQM for leave to appeal from the decision of the appeal tribunal but leave to appeal was refused by a determination issued on 21 July 2014.  On 13 August 2014 the applicant applied to a Social Security Commissioner for leave to appeal.

	Grounds

7.	The applicant did not identify particular grounds for her application for leave to appeal on the basis that the tribunal has erred in law.  However, following a grant of an extension of time by the Legal Office, on 24 October 2014, grounds were subsequently advanced on the applicant’s behalf by Ms F... of John Hoy, Son & Murphy, solicitors.

8.	It was submitted on the applicant’s behalf that:

(i)	the tribunal erred in law by finding that there were grounds to supersede the decision which had established the applicant’s previous award of DLA mobility component;

(ii)	the tribunal erred in law by finding that there were grounds to supersede the decision which had established the applicant’s previous award of DLA care component;

(iii)	the tribunal irrationally failed to have regard to the test for low rate mobility component;

(iv)	the tribunal had given inadequate reasons for its decision that there were grounds to supersede the decision awarding DLA;

(v)	alternatively, the tribunal had taken irrelevant factors into account.

9.	The Department was invited to make observations on the applicant’s grounds.  Mr Hinton of Decision Making Services (DMS) responded on behalf of the Department.  He submitted that the tribunal had not erred in law as alleged and indicated that the Department did not support the application.

Assessment

10.	An appeal lies to a Commissioner from any decision of an appeal tribunal on the ground that the decision of the tribunal was erroneous in point of law.  However, the party who wishes to bring an appeal must first obtain leave to appeal.

11.	Leave to appeal is a filter mechanism.  It ensures that only applicants who establish an arguable case that the appeal tribunal has erred in law can appeal to the Commissioner.

12.	An error of law might be that the appeal tribunal has misinterpreted the law and wrongly applied the law to the facts of the individual case, or that the appeal tribunal has acted in a way which is procedurally unfair, or that the appeal tribunal has made a decision on all the evidence which no reasonable appeal tribunal could reach.

13.	The applicant had an indefinite award of DLA, dating from 5 June 2006.  This was awarded by a Departmental decision of 20 June 2006, based upon evidence which included the periodic enquiry form completed by the applicant, and the factual report from Dr McC, the applicant’s GP, who stated that she could walk no more than 10 metres before the onset of severe discomfort and that she required prompting in most aspects of daily life.

14.	The applicant first submits that the tribunal erred in law by finding that there were grounds to supersede the awards of high rate mobility component made “on 3 September 1997 and 5 June 2006”.  In fact, the decision of 3 September 1997 had itself been superseded by the decision of 20 June 2006 and was no longer extant at the date of appeal.  The reasons for the Department’s award of high rate mobility component on 20 June 2006 (Tribunal papers, Tab 6 final page) show that it was based on the GP’s report dated 16 June 2006, which “states a distance of 10 metres at all times”.

15.	In hearing the appeal from the decision of 17 September 2013, the tribunal had before it a DLA 300A review form completed by the applicant, the GP factual report of 25 April 2013 and the examining medical practitioner (EMP) report of 31 August 2013.  The distance stated by the applicant as how far she could walk before she felt severe discomfort was “not very far”.  The GP appears to state that the applicant’s ability to get around is “normal”, this being the same GP who said “10 metres” in 2006.  The EMP stated “>200 metres”.  At hearing the applicant stated that she can walk for five minutes, using a stick and stopping because of breathlessness, which even at very slow pace represents a distance well in excess of 10 metres.

16.	This evidence all suggests a relevant change in the applicant’s mobility compared to the evidence on which the 2006 decision was based.  It is not arguable that the tribunal was merely substituting a different opinion for the decision-maker of 2006.  Its decision was based on markedly different evidence, indicative of change of circumstances since the date of the original decision.  I do not accept that this ground is arguable.

17.	The applicant in her second ground submits that the tribunal erred in law by finding that there were grounds to supersede the award of middle rate care component.  However, it is evident that there were potentially relevant changes in circumstances since the previous award, including the onset of diabetes and the occurrence of transient ischaemic attacks, as these might reasonably affect care and mobility needs.  Having established that there had been a relevant change of circumstances, the tribunal was entitled to address the evidence of care needs and to reach the conclusions which it did upon the evidence before it, even if those conclusions were that the applicant required less rather than more care.

18.	The third ground concerns the issue of low rate mobility component, whereby she can walk but would require guidance or supervision from another person in order to take advantage of the faculty of walking out of doors on unfamiliar routes.  The applicant did not indicate any difficulties in this area in her DLA 300A review form.  The EMP noted that the applicant had mild depression but normal cognition.  Her corrected vision and her hearing was normal.  She used no aids in order to address a need for guidance or supervision.  She was able to drive alone on familiar routes.  As there was no oral or documentary evidence to suggest that the applicant required guidance or supervision on unfamiliar routes, the tribunal was entitled to reach the decision it did.

19.	The fourth ground advanced by the applicant is that the tribunal decision was irrational, as her condition had deteriorated since 2006.  There is no merit in this ground, as a decision-maker is not concerned with a claimant’s medical condition per se.  For example, a claimant’s medical condition may have deteriorated, but her home may have been adapted or aids been provided to her to reduce her care needs.  The question before a tribunal is whether an appellant has mobility and care needs such as to satisfy the statutory conditions of entitlement.  In the particular case, the tribunal first addressed the issue of grounds for supersession.  It satisfied itself that such grounds existed.  It then considered the evidence as to mobility and care needs.  It made a rational decision which was permissible on the evidence before it.  The tribunal’s reasons for the decision are clearly set out in each section of the statement of reasons and are adequate to explain the decision.

20.	The applicant’s fifth ground is that the tribunal decision is irrational for taking irrelevant matters into account and omitting to take relevant factors into account.  This ground refers to the EMP’s reference to the applicant “painting a shed” in the week before her examination.  It is not at all irrelevant that a claimant for DLA is reported as having said that they painted a shed.  The real issue here is whether the tribunal placed reliance on a mistaken finding of fact and whether any unfairness results.

21.	I am prepared to accept the applicant’s account that she told the EMP that her husband had removed a door from the house, had taken it outside to the shed to paint it, and that she helped.  She did also seek to raise this matter in advance of the tribunal hearing, as she referred to it in her reconsideration application of 4 October 2013.  The tribunal appears to have overlooked her statement and not to have addressed the inconsistency with the EMP report at the hearing of the appeal.

22.	The Department submits in its observations that this was only one part of the evidence and that the tribunal relied upon the totality of the evidence, with the consequence that no error of law resulted.  Nevertheless, I found that this was an arguable point of law and I granted leave to appeal on this ground only.  I directed further submissions from the parties.

	Further submissions

23.	The appellant submitted that the tribunal had made a mistake as to a material fact, namely that the appellant had “painted a shed in the week prior to the examination”.  She relied upon R(Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982 to submit that “making a mistake as to a material fact which could be established by objective and uncontentious evidence, where the appellant and/or his advisers were not responsible for the mistake, and where unfairness resulted from the fact that a mistake was made” amounted to an error of law.

24.	The tribunal based its finding regarding the appellant painting a shed on a statement recorded by the EMP and attributed to the appellant.  The appellant had taken issue with this and had raised the matter with the tribunal in a letter dated 4 October 2013.  The tribunal did not deal with the matter at hearing.  It was submitted that the appellant was not responsible for the resulting mistake of fact and that unfairness resulted from the fact that the tribunal had not addressed it.

25.	Secondly, the appellant submits that the tribunal’s failure to address the conflict in the evidence of the appellant was itself an error of law, relying on the decision of Deputy Upper Tribunal Judge Ovey in LH v Secretary of State for Work and Pensions [2009] UKUT 140.  She submits that the tribunal’s finding that “in fact” the appellant had painted a shed, did not address the conflict in the evidence before it.

26.	Thirdly, she submits that the error was material in the sense that it was sufficiently significant to influence the tribunal into disallowing the appeal.

27.	For the Department, Mr Hinton acknowledged that the tribunal had not addressed the conflict in evidence.  However, he submitted that the tribunal had taken into account the GP records, the evidence of the appellant’s GP, the evidence of the EMP and the appellant’s oral evidence.  While accepting that it was arguable that the tribunal had erred in law by not resolving the conflict before it, he submitted that this failure was not material to the outcome.

	Conclusion

28.	The evidence in dispute in this case was not contentious in the sense that the only source of the evidence was the appellant and therefore no conflict of evidence arose between different witnesses.  However, this was not a dispute concerning an objective fact, since the finding of the tribunal would have depended on its view of the credibility of the appellant and the plausibility of the EMP making an inaccurate record of what was said to him.  I do not consider that this case can be properly said to involve a mistake as to a material fact.

29.	The real issue it seems to me is that the tribunal did not address and resolve the conflict in evidence that arose before it.  This meant that it based its decision in part on the disputed version of events without forming a view on the alternative version.  The error of law which potentially arises is procedural unfairness, since the appellant was not heard on this issue and the tribunal did not address the version of events which she put before it in her written submission.  Mr Hinton for the Department submits that the evidence before the tribunal was nevertheless sufficient to determine the matter and that the error was not material to the outcome.  He submits that the tribunal could establish grounds to supersede the existing award from the medical evidence before it.  However, that does not avoid the difficulty that in deciding which rate of care component might be appropriate, if any, the tribunal was clearly influenced by the apparent ability of the appellant to paint a shed.

30.	Moreover, I observe that in the case of procedural irregularity, the Court of Appeal of England and Wales in R(Iran) described the error as committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of the proceedings.  It seems to me therefore that the issue is not whether the tribunal’s failure to address and resolve the dispute actually materially altered the decision, but rather whether it was capable of making a material difference to the outcome or to the fairness of the proceedings.

31.	It seems to me that if an issue is raised by a party and is not dealt with by the tribunal that where, regardless of whether it actually altered the outcome, it was capable of affecting the outcome, the proceedings are compromised.  The fact that the particular issue was mentioned in the statement of reasons for the tribunal decision shows that it was a relevant factor in the decision.  I cannot therefore say that the failure to deal with the dispute was not capable of making a material difference to the outcome of the appeal.  On grounds of procedural fairness, therefore, it seems to me that I must allow the appeal.

32.	I set aside the decision of the appeal tribunal and I direct that the appeal shall be determined by a newly constituted tribunal.

(signed)  O Stockman

Commissioner

15 July 2015