JWF-v-Department for Social Development (DLA) [2016] NICom 15
Decision No:  C5/15-16(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 16 July 2014

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 16 July 2014 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.

3.	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.

4.	It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of his 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

5.	On 5 September 2013 a decision-maker of the Department decided that the appellant did not have any entitlement to DLA from and including 5 July 2013.  The appellant disputed the decision dated 5 September 2013 in a telephone call to the Department on 13 September 2013.  The appellant followed up the telephone call by forwarding additional information to the Department where it was received on 17 September 2013.  On 23 November 2013 the decision dated 5 September 2013 was reconsidered but was not changed.  The appeal against the decision was then received in the Department on 10 December 2013.  The appellant attached additional information from his general practitioner (GP).

6.	The appeal tribunal hearing took place on 16 July 2014.  The appellant was present and was represented by a friend.  There was a Departmental Presenting Officer present.  The appeal tribunal disallowed the appeal and confirmed the decision dated 5 September 2013.

7.	On 12 December 2014 correspondence was received in The Appeals Service (TAS) from the appellant.  On 19 December 2014 the Legally Qualified Panel Member (LQPM) of the appeal tribunal directed that that the correspondence should be treated as an application for leave to appeal to the Social Security Commissioner.  On 6 January 2015 the application for leave to appeal was refused by the LQPM.

	Proceedings before the Social Security Commissioner

8.	On 11 February 2015 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 20 February 2015 observations on the application for leave to appeal were sought from Decision Making Services (DMS).  In written observations dated 5 March 2015 Mr Hinton, for DMS, opposed the application for leave to appeal on the grounds which had been advanced by the appellant.  Nonetheless, Mr Hinton identified a further ground on which he submitted the decision of the appeal tribunal was in error of law.

9.	Written observations were shared with the appellant on 10 March 2015.  Written observations in reply were received from the appellant on 8 April 2015 which were shared with Mr Hinton on 10 April 2015.  A further response was received from Mr Hinton on 15 April 2015.

10.	On 3 July 2015 I granted leave to appeal.  In granting leave to appeal I identified, as a reason, that an arguable issue arose as to the manner in which the appeal tribunal addressed the issue of entitlement to the care component of DLA.

Errors of law

11.	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?

12.	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

13.	In his carefully prepared written observations on the application for leave to appeal, Mr Hinton has made the following submission:

‘Error in Law

The tribunal in assessing (the claimant’s) care needs stated that although the GP referred to him requiring help during flare-ups of gout came to the conclusion that this did not occur for the majority of the time.  As there were no other references in the GP records to self care, the tribunal looked to the information contained within (the claimant’s) self assessment form (DLA1) to see if the statutory criteria could be satisfied.  In its reasoning the tribunal stated:

“So for Self-Care we have to look at his DLA1 where he said

•	he would need help to get out of bed – 5 minutes
•	assistance to and from  toilet x 1-3 – 3 minutes
•	assistance to wash/dry/shower – no time stated
•	help to dress/undress x 1-3 – 3-4 minutes
•	help to get out of chairs
•	help to use the toilet at night x 1 – 3-5 minutes

We do not accept this is frequent attention throughout the day or prolonged and repeated attention at night or attention for a significant portion of the day.

His oral evidence was of help to get out of bed, wash, dry and dress, 5-6 minutes.  And similar help at bedtime.  Again the statutory criteria for Care not satisfied”.

The tribunal concluded that the amount of attention required by (the claimant) during the day did not meet the statutory criteria for any rate of the care component.  I notice that (the claimant) did not state either in his self assessment form or at the hearing the frequency with which he needed help to get out of a chair and the time this would take; neither was this explored by the tribunal.  It may be the case that this along with the attention that has been accepted by the tribunal could have conferred entitlement to the middle or lowest rate of the care component of DLA.  I would contend that the onus was on the tribunal to explore this issue further with (the claimant) in order to ascertain the frequency that this activity would take and in failing to do so the tribunal has not fulfilled its inquisitorial role.  In view of this it is my submission that the tribunal has erred in law.’

14.	I am of the view that the issue which has been raised by Mr Hinton is marginal.  Nonetheless, I am satisfied that the appeal tribunal could have been more proactive in exploring with the appellant the extent of the problems which he had with getting out of a chair.  More significantly, the appeal tribunal did not make any findings of fact in respect of the frequency with which he needed help with getting out of a chair.  Rising from a chair is, potentially, a frequent activity.  As was noted by Mr Hinton, it might have been the case that a finding that assistance with getting out of a chair was a frequent daily requirement would have tipped the balance in favour of a conclusion that the relevant legislative test was satisfied.  The emphasis on ‘might’, is deliberate, however.  It might equally have been the case that a finding of fact on frequency of the requirement for assistance would have led the appeal tribunal to the same conclusion.  The frustrating difficulty is that no findings were made.

15.	I set aside the decision of the appeal tribunal with a firm degree of reluctance given the appeal tribunal’s careful and judicious management of the other aspects of the appeal, and its circumspectly prepared statement of reasons.

16.	Having found that the decision of the appeal tribunal is in error of law, for the reasons which are 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 submitted by the appellant.

	Disposal

17.	The decision of the appeal tribunal dated 16 July 2014 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.

18.	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 5 September 2013 in which a decision-maker of the Department decided that the appellant did not have any entitlement to DLA from and including 5 July 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

10 February 2016