LT-v-Department for Social Development (DLA) [2016] NICom 55

Decision No:  C13/16-17(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 10 October 2013

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.  

2.	The decision of the appeal tribunal dated 10 October 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.  I would ask the Legally Qualified Panel Member (LQPM) of the appeal tribunal to note that I have accepted that there is only one potential error of law in the reasoning of the appeal tribunal and that the issue arising is a very narrow one.  As will be noted in further detail below, the factor which has swung the balance in favour of setting aside the decision of the appeal tribunal is erroneous fact-finding on a relevant issue which may have resulted from a mishearing, mis-recording or misinterpretation of oral evidence.  

3.	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.

4.	Although the appeal to the Social Security Commissioner has been successful, the appellant may be disappointed that the matter is to go back before another appeal tribunal thereby lengthening the time which it has taken for the issue of her entitlement to Disability Living Allowance (DLA) to be resolved.  I would encourage the appellant to seek representation before the further oral hearing of her appeal and to attend that oral hearing which will be arranged for her local area. 

5.	I have noted, in addition, that in various items of correspondence to my office, the appellant has stated that there has been a change in her circumstances involving further disability through a fracture of her wrist or a deterioration in her medical condition.  The law (Article 13(8)(b) of the Social Security (Northern Ireland 1998, as amended) states that in deciding an appeal an appeal tribunal cannot take into account circumstances not obtaining at the time when the decision appealed against was made.  The same rule applies to Social Security Commissioners.  If she has not already done so, the appellant should give consideration to making a fresh claim to DLA to protect her position.  A representative should be able to give her advice in this regard.     

Background

6.	On 22 November 2012 a decision-maker of the Department decided that the appellant was not entitled to either component of DLA from and including 9 October 2012.  An appeal against the decision dated 22 November 2012 was received in the Department on 21 December 2012.

7.	The appeal was first listed for oral hearing on 11 April 2013.  The appeal tribunal, on that occasion, disallowed the appeal.  Following an application to that effect, the decision of the appeal tribunal dated 11 April 2013 was set aside.  

8.	The appeal was re-listed for hearing on 10 October 2013. The appellant was present.  There was a Departmental Presenting Officer present.  The appeal tribunal disallowed the appeal and confirmed the decision dated 22 November 2012.

9.	On 6 February 2014 correspondence from the appellant was received in the Office of the Social Security Commissioners.  On 12 February 2014 the appellant was informed that the correspondence dated 6 February 2014 had been treated by the LQPM as an application for leave to appeal to the Social Security Commissioner.  On 14 February 2014 the application for leave to appeal was refused by the LQPM.

10.	On 14 March 2014 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 12 May 2014 observations on the application for leave to appeal were requested from Decision Making Services (DMS).  In written observations dated 29 May 2014, Mrs Hulbert, for DMS, opposed the application for leave to appeal.

11.	Written observations were shared with the appellant on 29 May 2014. On 10 September 2014 I directed an oral hearing of the application. The oral hearing was listed for 28 October 2014. On 24 October 2014 correspondence was received from the appellant in which she indicated that she would be unable to attend the scheduled oral hearing due to a hospital appointment.  The oral hearing was postponed and the appellant was requested, on 27 October 2014, to provide dates when she might be in a position to attend an oral hearing.  Reminder correspondence to this effect was forwarded to the appellant on 21 November 2014. 

12.	Further correspondence was received from the appellant on 1 December 2014 to which she added a copy of a medical report.  On 11 December 2014 the Legal Officer to the Social Security Commissioners wrote to the appellant explaining the nature of proceedings before the Social Security Commissioners and the relevance of oral hearings.  On 16 January 2015 further correspondence was forwarded to the appellant in connection with suitable dates for an oral hearing. In correspondence received on 2 February 2015 the appellant indicated that she would like the matter to be dealt with on the papers alone as she was unable to travel to an oral hearing.  The appellant added further submissions in connection with her application for leave to appeal. 

13.	The correspondence was shared with Mrs Hulbert on 4 February 2015. On 13 February 2015 a further submission was received from Mrs Hulbert which was shared with the appellant on 21 May 2015. On 9 June 2015 further correspondence was received from the appellant which was shared with Mrs Hulbert on 15 June 2015.   

14.	There has been a further delay in the promulgation of this decision. This was occasioned by the fact that certain of the issues which have arisen in this appeal were also being addressed by me in another decision.  It was felt to be appropriate to await the outcome of that other decision before considering this decision. Secondly, there has been an increase in the workload of the Social Security Commissioners in recent months.       

What I have taken into account  

15.	In arriving at this decision, I have taken into account all of the case papers which include all of the documentation relating to the application, and all supporting statements and materials. 

The nature of an application for leave to appeal to a Social Security Commissioner

16.	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?

17.	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

18.	In her application for leave to appeal, and in subsequent correspondence received in the office of the Social Security Commissioners, the appellant has made a number of submissions, as follows:

(i)	The appellant raises two matters in respect of the statement of reasons for the appeal tribunal’s decision. The first of these was that she does not drive to Belfast.  The second was that she could not raise her right arm above her head. 

(ii)	The appellant questioned the medical qualifications of the ‘Chair’ of the appeal tribunal.

(iii)	The appellant asserted that the medical records which the appeal tribunal had were false.

(iv)	The appellant noted that she worked for two hours per day on light duties but that others who were in receipt of entitlement to DLA could earn £100 per week.

(v)	The appellant noted that she could drive five minutes to work but other recipients on DLA have mobility cars in which to drive.

(vi)	The appellant submitted that because she visits her grandchildren there is nothing wrong with her.  Others in receipt of entitlement to DLA saw their families and she wondered why it was different for her. 

(vii)	The appellant had requested a medical but was ‘turned down.’

(viii)	The appellant accepted that while she may not have the problems which other people have but, at times, her pain was unbearable.

(ix)	The appeal tribunal was making out that because the appellant worked there was nothing wrong. The appellant noted that she has to work and that her work is not heavy.

(x)	The appellant queried why she had been treated differently to others entitled to certain social security benefits who could earn up to £100 per week

(xi)	The appellant felt the number of people at the appeal tribunal hearing was intimidating.

(xii)	The appellant submitted that her medical records had not been looked at and when she had asked the Medically Qualified Panel Member (MQPM) about a specific medical condition she did not know very much about it. 

(xiii)	The appellant submitted that her medical conditions had not been addressed and that her medical condition caused her a great deal of discomfort.

(xiv)	The appellant noted that since the date of the appeal tribunal hearing she had further x-rays on her hands. 

19.	In her very helpful written observations on the application for leave to appeal, Mrs Hulbert has opposed the application on all of the grounds submitted by the appellant.

20.	I begin with an analysis of the submissions made by the appellant in connection with her ability to drive and how this was assessed by the appeal tribunal.  In the record of proceedings for the appeal tribunal hearing, the appeal tribunal has noted the following:

	‘Appellant

	She works with Age Concern … (2 hours per day) Monday to Friday

Drives to work each day (10.30 to 12.30) clients come in to get lunch (14-30 clients), she helps serve the dinner, clear up afterwards – load dishwasher, helps clear up.  

…

She goes to Asda by car. She can drive there herself – short journey.

Husband drives to Belfast.  She does not drive long distances.’

21.	In the statement of reasons for the appeal tribunal’s decision, the appeal tribunal has stated:

‘As regards the Care Component of Disability Living Allowance the General Practitioner also recorded at Tab 3 “details not recorded”.  Considering the totality of the evidence the Tribunal did not believe that the criteria for award of any of the Rates of Care  Component had been satisfied, the Tribunal believed that she could attend to her own personal care without any difficulties whatsoever. She was working for 2 hours per day on a part-time basis with Age Concern helping with dinners, cleaning up afterwards, loading dishwashers etc.  This was quite a demanding task and did not indicate that the Appellant herself had any care needs.  The tribunal noted that she still drove her motor vehicle and was able to drive about without any difficulties whatsoever sometimes driving to Belfast, the medical evidence did not indicate that an award of the Care Component was merited.’

22.	The emphasis in this quoted extract is my own.  It is immediately clear that the highlighted passage is inconsistent with the evidence from the appellant which is recorded in the record of proceedings for the appeal tribunal hearing.  As was noted above, therein the appellant stated that her husband drove to Belfast and that she did not drive long distances. 

23.	The appeal tribunal concluded that the appellant did not satisfy the conditions of entitlement to any of the rates of the care component of DLA.  Further, the appeal tribunal concluded that the appellant did not satisfy either of the alternative ‘routes’ of entitlement to that benefit i.e. a reasonable requirement for attention in connection with her bodily functions or a reasonable requirement for supervision to prevent substantial danger to herself.  The evidential basis on which the appeal tribunal concluded that the conditions of entitlement to the care component were not satisfied were, firstly, that the appellant was working for two hours per day in employment which involved demanding tasks, arguably akin to the tasks associated with the preparation of a cooked main meal.  Secondly, the appeal tribunal noted that the appellant continued to drive, apparently without difficulties, and sometimes drove to Belfast.  Although it is nowhere made clear, the significance of a trip to Belfast appears to be that it is longer and more complicated than a local short journey. We are aware now, of course, that the appeal tribunal’s statement that the appellant drove to Belfast is erroneous.  

24.	In KMcA-v-Department for Social Development (DLA) ([2015] NICom 19 (C25/14-15(DLA)), I said the following, at paragraphs 28 to 30:

‘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.’

25.	The analysis of Mr Commissioner Jacobs was in the context of a discrete link between the functions which are involved in the preparation of a cooked main meal and the functions associated with driving.  There is no reason, however, why the analysis and principles should not be extended to the functions associated with attending to bodily functions which is an essential aspect of the tests of entitlement for all three rates of the care component of DLA.

26.	What Mr Commissioner Jacobs exhorts on appeal tribunals and decision makers is not to draw inferences but to assess the evidence which is available to it by addressing the impediment in function which a claimant or appellant submits is restricting their ability to cook (or attend to their bodily functions) and cross-check that impediment against a parallel function associated with another activity such as driving (or working) where no such impediment arises. 

27.	In the instant case, the appeal tribunal have made a factual error in concluding that the appellant is able to drive reasonably long distances. My concern is that the appeal tribunal may have fallen into the trap highlighted by Mr Commissioner Jacobs in drawing an inference from its erroneous fact-finding.  It seems to me that the appellant’s statement that she does not drive long distances required further inquiry from the appeal tribunal if, as was the case, the appeal tribunal was intending to link the evidence concerning driving with a conclusion on lack of entitlement to the care component of DLA. The failure to make that inquiry may have resulted from a mishearing or misinterpretation of the relevant evidence.  I would emphasise that the issue is a very narrow one and my own conclusions turn on the erroneous fact-finding and the link between that fact-finding and potential entitlement to the care component of DLA.  I have noted that the appeal tribunal also adopted the evidence concerning an ability to drive in its consideration as to whether the conditions of entitlement to the mobility component of DLA were satisfied.  With some element of regret, therefore, I have concluded that the decision of the appeal tribunal is in error and must be set aside.     

The appellant’s other grounds for appealing

28.	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.  In this regard I accept and agree with the thorough analysis of those additional grounds by Mrs Hulbert in her written observations.  

Disposal

29.	The decision of the appeal tribunal dated 10 October 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.

30.	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 22 November 2012, which decided that the applicant was not entitled to DLA from and including 9 October 2012;

(ii)	the Department is directed to provide details of any subsequent claims to Disability Living Allowance 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

15 August 2016