CM-v-Department for Social Development (DLA) [2016] NICom 36

Decision No:  C21/15-16(DLA)

IRO: O M  (A CHILD)

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 18 June 2015

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 18 June 2015 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 her son’s 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.	The appellant is the mother and appointee of a five year old boy. By way of a claim form received in the Department on 7 October 2014 the appellant claimed DLA on behalf of her son.  On 11 December 2014 a decision-maker of the Department decided that the claim to DLA should be disallowed and that the appellant’s son would not have any entitlement to DLA from and including 29 September 2014.  An appeal against the decision dated 11 December 2014 was received in the Department on 28 January 2015.

6.	The appeal tribunal hearing took place on 18 June 2015. The appellant was present.  There was no Departmental Presenting Officer present. The appeal tribunal disallowed the appeal and confirmed the decision dated 11 December 2014.  On 15 October 2015 an application for leave to appeal against the appeal tribunal’s decision was received in the Appeals Service.  On 18 November 2015 the application for leave to appeal was refused by the Legally Qualified Panel member (LQPM).

	Proceedings before the Social Security Commissioner

7.	On 7 December 2015 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 11 January 2016 observations on the application for leave to appeal were requested from Decision Making Services (DMS).  In written observations received on 4 February 2016, Mrs Hulbert, for DMS, supported the application on one of the grounds submitted by the appellant.  Written observations were shared with the appellant on 5 February 2016.  Written observations in reply were received from the appellant by way of e-mail correspondence dated 15 February 2016. 

8.	On 6 April 2016 I granted leave to appeal. In granting leave to appeal I gave, as a reason, that an arguable issue arose as to whether the appeal tribunal had properly applied section 71(1A) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, (‘the 1992 Act’) as amended.  On the same date I directed that an oral hearing of the appeal would not be required.

	Errors of law

9.	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?

10.	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.” 

	Why was the decision of the appeal tribunal in error of law?

11.	In her valuable written observations on the application for leave to appeal, Mrs Hulbert made the following submission:

‘In her letter of appeal (the appellant) has submitted that in her view he does require attention for a significant period of the day/night in connection with his bodily functions.  She has recorded that he needs attention whilst cleaning his bottom after a bowel movement; this is because he would naturally lean over his right shoulder to carry out this function and with his limited sight is unable to carry this out; as such his parents have to do this for him.  ((The appellant) has noted however that he would not have a bowel movement at school therefore one would deduce from this that no help is required with toilet needs at school).  He is unable to safely cross the road.  He continues to wet the bed and most evenings is visibly upset and questions why his eye is different to those of the other children at school.  Each year he has a classroom based assessment carried out and verbal feedback advised that ‘…he has to adapt and employ different strategies towards educational challenges encountered in both the class and playground environment…’

	Within the DLA claim form (the appellant) has recorded that (her son) needs help in and out of bed and to settle in bed, he needs help to clean himself after a bowel movement, needs help moving around indoors, help to bath and shower and  help with zips and buttons on clothing.  He requires supervision to keep him safe and help at school to behave appropriately.  He has a guard on his bed to prevent him from falling out of bed and a bed light remains on should he waken.  Furthermore at the appeal hearing (the appellant) gave further evidence of (her son’s) needs.

	As well as satisfying the care conditions to be entitled to DLA under section 72 of the Social Security Contributions and Benefits (NI) Act 1992 there is an additional test to be applied for those persons under the age of 16 known as the ‘Children’s Test’.  This is legislated for in Section 72(1A) of the Social Security Contributions and Benefits (NI) Act 1992 (‘the Act’) and provides as follows:

“(1A) In its application to a person in relation to so much of a period as falls before the day on which he reaches the age of 16, subsection (1) above has effect subject to the following modifications-

(a) the condition mentioned in subsection (1)(a)(ii) above shall not apply, and 

(b) none of the other conditions mentioned in subsection (1) above shall not be taken to be satisfied unless-

(i)he has requirements of a description mentioned in the condition substantially in excess of the normal requirements of persons of his age, or

(ii) he has substantial requirement of such a description which younger persons in normal physical and mental health may also have but which persons of his age and in normal physical and mental health would not have.”

	In reported decision [2015] AACR 29 (BM v Secretary of State for Work and Pensions (DLA) [2015] UKUT 18 (AAC) Judge Marcus considered the proper approach to the GB equivalent of the above legislation and stated in paragraphs 34 and 35:

“34. Once it has been determined that a claimant has requirements falling within section 72(1) ....., the issues which arise for determination under section 72(1A)(b)(ii) the issue which arise are: (a) what the relevant requirements are of normally healthy children of the same age; and (b) whether the claimant’s requirements are different from those of children of the claimant’s age in normal physical and mental health; (c) whether young children in normal physical and mental health would have those requirements.

35. If a tribunal decides that one of the sub-paragraphs applies, there will be no need to consider the application of the other.  It may be on the facts of the case, it is not necessary to carry out a strict sequential exercise in respect of the two sub-paragraphs but a decision that section 72(1A) (b) does not apply must demonstrate that both sub-paragraphs have been considered in substance.”  

	In its reasons for decision the tribunal has recorded:

“It is clear to the Tribunal as a result of this (the child) does have care needs which are in excess of the normal requirements of a person of his age of normal and physical mental health but to satisfy the legislation the requirements must be substantially in excess. 

The Tribunal are not satisfied that they are substantially in excess…The child goes to a normal school.  He is in a normal class.  The school is aware of his problem and have made the necessary arrangements.  The child is able to carry on as a normal 4 year old.  He is able to play football, do his homework.  There is no specific classroom assistant.  Undoubtedly the school keep a close eye on him during the day likewise at home his parents have made adjustments to make life as easy as possible for him.  He does get preferential seating in his class, he has low level lighting.  The school does provide a litter-free environment.  He can and does use dark pencils. Undoubtedly like all 4 year old children he would be supervised.  The Tribunal cannot find this extra help and encouragement amounts to care which is substantially in excess of that of a child with good vision.  The Tribunal find that O M does not reasonably require attention for a significant portion of the day or frequently throughout the day in connection with bodily functions care that is substantially in excess of the normal needs of a healthy child of the same age.  The Tribunal also do not accept that he requires prolonged or repeated attention at night in connection with his bodily functions substantially in connection with his bodily functions substantially in excess of the normal needs of a 4 year old child.”

	As can be seen from the above extract the tribunal has accepted that (the appellant’s son) does suffer from a visual impairment and has needs arising there from that are in excess of the normal requirements of a person of his age, however based on the evidence before it, concluded that any such needs were not substantially in excess of the normal needs of a child of the same age.  Whilst the tribunal has considered the provisions of section 72 (1A) (b)(i) of the Act, it does not appear to have considered the relevant provisions of section 72(1A)(b)(ii), therefore in line with the cited case law above it has erred in law.’

12.	I agree with the submission which has been made by Mrs Hulbert and, for the reasons which she has set out, agree that the decision of the appeal tribunal is in error of law.  The appeal tribunal has failed to consider the provisions of section 72(1A)(b)(ii) of the 1992 Act. 

13.	I would add that I commend the approach to the Great Britain equivalent of section 72(1A)(b)(ii), set out by Judge Markus in BM, to decision-makers and appeal tribunals in Northern Ireland.

14.	One further matter arises.  One of the grounds of appeal set out by the appellant was that as her son, by the date of the application for leave to appeal which was received in the Office of the Social Security Commissioners, had reached the age of five, she wished him to be considered for entitlement to the mobility component of DLA. Mrs Hulbert has addressed this issue succinctly and precisely in her written observations, as follows:

	‘Section 73 of the Social Security Contributions and Benefits (NI) 1992 provides for the entitlement conditions for the mobility component of DLA and therein, with reference to the lower rate mobility component, section  (1A)(b) provides that a person needs to be 5 years of age in order to be considered for entitlement to such an award.  At the time that the claim for DLA was made (the appellant’s son) was only 4 years of age therefore he could not qualify for an award of the lower rate mobility component.  This issue was discussed at the hearing as referenced within the statement of reasons:

“…The Chairman introduced the Tribunal and explained the procedure and (the appellant) confirmed to the Tribunal that high rate mobility was not an issue that she appreciated that as (her son) was 4 at the time of the decision on 11 December 2014 low rate mobility was also not an issue.  The appeal therefore was in relation to the care component.”

	As can be seen from the above extract the tribunal was clearly aware that due to his age at the date of decision (the appellant’s son) could not be considered for an award of lower rate mobility component; his mother, as his appointee, was also aware of this fact.  The tribunal has therefore not erred in law in this respect. (The appellant’s son) is now an age when an award of lower rate mobility can be considered and as such his mother, as appointee, would be required to make a new claim to DLA.’

	Disposal  
   
15.	The decision of the appeal tribunal dated 18 June 2015 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.   

16.	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 11 December 2014, in which a decision-maker of the Department decided that the appellant’s son would not have any entitlement to DLA from and including 29 September 2014;

(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

1 June 2016