LC-v-Department for Communities (DLA) [2016] NI Com 65

Decision No:  C23/16-17(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 29 September 2015

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 29 September 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 ongoing 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 26 February 2013 a decision-maker of the Department decided that the appellant was entitled to the lowest rate of the care component of DLA from and including 21 March 2013.  Following receipt of a completed ‘change of circumstances’ form and a Factual Report from the appellant’s General Practitioner (GP), another decision-maker on 11 December 2014 decided not to supersede the decision dated 26 February 2013.  The outcome of that decision was that the appellant continued to be entitled to the lowest rate of the care component of DLA.

6.	Following a request to that effect, the decision dated 11 December 2014 was reconsidered on 5 January 2015 but was not changed.  An appeal against the decision dated 11 December 2014 was received in the Department on 16 January 2015.

7.	Following two earlier postponements, the substantive oral hearing of the appeal took place on 29 September 2015.  The appellant was present and was represented.  There was a Departmental Presenting Officer present.  The appeal tribunal disallowed the appeal and confirmed the decision dated 11 December 2015.

8.	On 8 February 2016 an application for leave to appeal was received in the Appeals Service (TAS).  The appellant was represented by Mr Hatton of the Law Centre (Northern Ireland).  On 22 February 2016 the application for leave to appeal was refused by the Legally Qualified Panel Member (LQPM).

	Proceedings before the Social Security Commissioner

9.	On 23 March 2016 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 20 April 2016 observations on the application for leave to appeal were requested from Decision Making Services (DMS).  In written observations received on 14 May 2016, Mrs Hulbert, for DMS, supported the application on the grounds advanced by Mr Hatton and identified what she submitted was a further potential error of law.  Written observations were shared with the appellant and Mr Hatton on 16 May 2016.  On 15 June 2016 written observations in reply were received from Mr Hatton.

10.	On 9 September 2016 I granted leave to appeal.  In granting leave to appeal I gave, as a reason that the grounds advanced in the application for leave to appeal were arguable.  On the same date I directed that an oral hearing of the appeal would not be required.

	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 the application for leave to appeal, Mr Hatton made the following initial submission:

‘The tribunal has made a material misdirection in law.  Further and in the alternative, the tribunal has failed to provide an adequate evidential assessment and has failed to provide adequate reasons for its decision.

The tribunal, in finding that (the appellant) was not entitled to the higher rate of the mobility component of DLA, placed significant weight on the fact that (the appellant) had went on holiday and had been able to traverse the airport as part of this.

Firstly, we would submit that the holiday was over six months after the date of the decision being appealed against and it was not therefore a circumstance obtaining at the date of decision.  The tribunal were therefore not permitted to take into account the circumstances as it was barred from doing so by Article 13(8)(b) of the Social Security (NI) Order 1988.  Given the particular significance that the tribunal placed on (the appellant) going on holiday, we would submit that this was a material error of law and that this ground of appeal on its own sufficient to require decision to be set aside as being in error of law.’

14.	In her written observations on the application for leave to appeal, Mrs Hulbert made the following submissions in support of this ground of appeal:

‘Article 13(8)(b) of the Social Security (Northern Ireland) Order 1998 provides:

“13(8) In deciding an appeal under this Article, an appeal tribunal-

(b) shall not take into account any circumstances not obtaining at the time when the decision appealed against was made”. 

This appeal concerns a decision made on 11 December 2014 not to supersede the decision of 26 February 2013 which awarded (the appellant) the lowest rate care component.  The holiday referred to appears to be a trip to Prague which according to the record of proceedings took place three weeks prior to the date of the appeal hearing - this would date the holiday as some time at the beginning of September 2015, some nine months after the date of decision.  (The appellant) gave evidence regarding this holiday and this is recorded in the record of proceedings:

“Question: You were able in the summer you took steroids on the holiday for a week.

Answer: To Prague three weeks ago, was horrendous, awful.

Question: How did you manage the airport?

Answer: I had speedy boarding so that I didn’t stand in queue.  People in the 	airport were very supportive.  I went early to the airport to get time to go through

…

Question: Returning from the airport

Answer: Speedy boarding.  I was there 3 hours before.

Question:  Do you use an airport wheelchair?

Answer: No I wished I had.  I was told the pain was the body aging”

With regards to the issue of being virtually unable to walk the tribunal had before it all the documents contained within the Departmental submission, a submission prepared on (the appellant’s) behalf dated 16 September 2015, GP notes and records and the benefit of oral evidence from (the appellant) and her representative at the appeal hearing.

In making its decision on whether or not (the appellant) was virtually unable to walk, the tribunal has focused on the trip to Prague and also on the fact that she can drive a car.

…

With regards to the trip to Prague the tribunal has drawn the following conclusions:

“The Tribunal notes that the claimant was able to walk through airports in her way to and from Prague at a time recent to the relevant date and that she did so without the aid of a wheelchair.  She said that she wished she had used a wheelchair.  She was alert to the benefit of speedy boarding but chose not to avail of an airport wheelchair…

It is my view that the tribunal should not have placed the weight it did on this holiday.  As aforementioned it occurred some 9 months after the date of decision.  There is nothing to suggest how the tribunal determined that this evidence related to the circumstances obtaining at the date of decision under appeal.  I therefore support this ground of appeal.’

15.	In C24/03-04(DLA), at paragraph 8, the Commissioner approved of the following statement of law set out in paragraph 9 of R(DLA) 2/01: 

‘… In the case of a claim for a Disability Living Allowance, the jurisdiction {of an Appeal Tribunal} is limited to the inclusive period from the date of claim to the date of the decision under appeal.  The only evidence that is relevant is evidence that relates to the period over which the tribunal has jurisdiction.  However it is the time to which the evidence relates that is significant, not the date when the evidence was written or given.  It does not limit the tribunal to the evidence that was before the officer who made the decision.  It does not limit the tribunal to evidence that was in existence at that date.  If evidence is written or given after the date of the decision under appeal, the tribunal must determine the time to which it relates.  If it relates to the relevant period, it is admissible.  If it relates to a later time it is not admissible.’

16.	Accordingly, the appeal tribunal was limited to taking account of evidence that was relative to the period over which it has jurisdiction under Article 13(8)(b).

17.	In the instant case, as was noted by Mrs Hulbert, the date of the decision under appeal was 11 December 2014.  Based on what was recorded in the record of proceedings the date of the holiday was in and around the start of September 2015.  The appeal tribunal was permitted to take evidence which post-dated the decision under appeal but only if it related to the date of the decision under appeal.  I have noted that the appeal tribunal has stated that the date of the holiday was ‘… at a time recent to the relevant date’ having already noted the ‘relevant date’ to be the date of the decision under appeal.  I cannot see how a date some nine months after the date of the decision under appeal is ‘recent’ to it.  There is no doubt that the appeal tribunal placed significant weight on the evidence relating to the holiday.  Further, the appeal tribunal has given no indication as to how that evidence related to the circumstances obtaining at the date of the decision under appeal.  Accordingly, I agree that the decision of the appeal tribunal is in error of law on the basis of this submitted ground.

18.	I also agree with Mr Hatton that this error was material and was, on its own, sufficient to mandate the setting aside of the appeal tribunal’s decision.  I am setting out, however, Mrs Hulbert’s written observations on the other grounds of appeal, with which I agree, as follows:

‘Issue 2

The Tribunal erred in law in failing to provide an adequate evidential assessment or failed to provide adequate reasons in relation to how the tribunal approached the issue of the holiday.  The tribunal referred to (the appellant’s) failure to avail of an airport wheelchair.  Mr Hatton stated how (the appellant) gave evidence of other steps that she took to mitigate against the difficulties she may have faced in walking through the airport.  She advised she used the “speedy boarding” facility which allows a person to board the plane in advance of others and as a result have less time waiting and potentially standing.  In addition she advised she arrived at the airport three hours in advance which was presumably in order to allow her to take additional time to make her journey through the airport.  It is submitted the tribunal erred by making no further enquiries about how she got about the airport; there is no enquiry about how far she had to walk, did she have to take breaks, how long for or any other enquiries pertinent to the issue.  In addition this was a one-off occurrence and without further investigation cannot be taken to be representative of her condition as a whole.

I have already made reference to the extract from the reasons for decision wherein the tribunal considered (the appellant’s) trip to Prague and how she mobilised through the airport.  Whilst the tribunal referred to her walking without the aid of a wheelchair it did not ask her how long it took her to walk the distance, how far it was and whether she had to make any stops.  As Mr Hatton has pointed out this trip to the airport was a one off incident connected to a holiday and I would agree with his view that it would not be demonstrative of her overall walking ability.  CDLA/3447/2012 states at paragraph 9:

“9. To start with, even if walking is done in an airport (as the tribunal found here), due allowance has to be made for the fact that this is walking indoors whereas the statutory test looks at walking outdoors, and consideration still has to be given as to how far the person walked in the airport, how long that took him, whether he had any halts, and, crucially how much of that walking was done without severe discomfort…”

The statutory test referred in CDLA/3447/2012 is contained within regulation 12 of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992 …

In considering what is expected of a tribunal in considering the statutory test of time, distance, speed and manner of walking Commissioner Brown in unreported decision C44/97(DLA) refers to and endorses the guidance supplied by Judge Chambers, the former Chief Commissioner in Northern Ireland.  In paragraph 15 Commissioner Brown states:

“Helpful guidance is also available from Chief Commissioner Chambers in C3/87(MOB), a case concerning mobility allowance which is directly relevant to the present case.  In that case at paragraph 7 Chief Commissioner Chambers stated as follows:-

“…In my view the decision of the Court of Appeal should not be interpreted as requiring the Tribunal to provide answers to the four questions raised by the Regulation in terms of a distance, a speed, a time and a description of the child’s manner of walking.  Undoubtedly, those questions must be specifically addressed and answers given; but to require the Tribunal to attempt to quantify distances, speeds, etc would be to impose an impossible burden upon them.  It is, moreover, difficult to see what purpose it would serve to provide such answers; as it would remain for the Tribunal to decide whether or not the child was unable or virtual unable to walk.  If there are to be limits of distance, speed, etc marking the level below which the claimants qualify for mobility allowance, it is for Parliament or the Rule-making authority to set them; not the Medical Appeal tribunal…” 

(Although the above decision refers to Mobility Allowance the relevant test is in the same terms as regulation 12 (1) of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992).

Whilst the tribunal refer to the distance it finds (the appellant) could walk before the onset of severe discomfort, there is nothing within the reasons for its decision to show that it considered the time, speed and manner of her walking.  Indeed based on the evidence it has referred to when making its decision, it is difficult to see from where it based the finding that she could walk 100 yards before the onset of severe discomfort. I therefore support this ground of appeal.

Issue 3

The tribunal has erred in its consideration of (the appellant’s) ability to drive and how it viewed this act when determining whether or not she is virtually unable to walk.  Of the factors listed by the tribunal, only the ability to use one’s foot to operate pedals is potentially relevant to the issue of entitlement to higher rate mobility component.

In its reasons the tribunal stated:

“…Furthermore the Tribunal notes the claimant is willing to face all the exigencies of driving a non adapted non automatic vehicle.  She asserts that she drives only short distances and that her insurers and Vehicle Licensing Authority are fully appraised of the disabilities described to us.  We have difficulty reconciling the stated symptoms with the claimant’s ability to drive a manual vehicle.  One must have good function of one’s lower and upper limbs and ability to turn one’s neck and body to check behind as well as to the side.  One must be able to grip the steering wheel, operate the pedals, operate the gear leaver and operate the hand brake.  One must be fully alert.  One must also be prepared to accept all the exigencies of driving such as diversion onto routes that may not be familiar, to deal with police stops, to deal with police questioning, accidents, breakdowns etc.  The Tribunal is satisfied that at the relevant date the claimant was not virtually unable to walk and that she was able to walk a reasonable distance of at least 100 yards in a reasonable speed and manner before the onset of severe discomfort and that the exertion in so doing would not constitute a danger to her life or likely to lead to a serious deterioration in her health.  Furthermore the Tribunal is satisfied that the claimant is safely mobile alone on whatever route she may find herself.”

It is my view that the tribunal erred in taking into account the fact that (the appellant) can drive meant that she was not virtually unable to walk.  The fact that she can operate a car does not automatically infer she has no mobility issues.  Indeed (the appellant) advised the tribunal:

“Question: How do you manage the pedals?

Answer: With great difficulty, Knee pain comes from the outset knuckles and grip the steering wheel.  Very painful.  A cushion to prop up my shoulder.  I don’t go any further than the Spar.”

The tribunal has not addressed these difficulties and the fact that even though she does drive it is only short distances.  Again I submit that the tribunal has erred in law in consideration of this issue.’

19.	Although I cannot be certain, the statement by the appeal tribunal that it was ‘… satisfied that the claimant is safely mobile alone on whatever route she may find herself’ is a conclusion that the appellant did not satisfy the conditions of entitlement to the lower rate of the mobility component of DLA.  It is arguable, therefore, that the appeal tribunal was relating the appellant’s ability to drive to the dynamics of the lower rate mobility test.  Equally, however, the appeal tribunal has stated, at the end of the description of the safe driving requirements, that it was satisfied that:

‘… at the relevant date the claimant was not virtually unable to walk ..’

20.	I agree that that statement is suggestive of a linking of an ability to walk with the conditions of entitlement to the higher rate of the mobility component of DLA.

21.	Finally, Mrs Hulbert identified what she submitted was a further potential error of law, as follows:   

‘In the decision notices the tribunal has recorded that it has awarded the lowest rate care component from and including 21 March 2013 and disallowed the mobility component from the same date.  The issue before the tribunal was however to establish whether or not there were grounds to supersede the decision of 26 February 2013 which awarded the lowest rate care component.  Whilst it has noted in the reasons for decision that there was no change of circumstances this should have also been reflected in the decision notices.’

22.	The decision under appeal was a decision dated 11 December 2014 which decided not to supersede the earlier decision dated 26 February 2013.  Accordingly, the first task of the appeal tribunal is to determine whether the decision-maker, on 11 December 2014, had grounds to supersede the earlier decision of the Department, dated 26 February 2013.  The grounds upon which a decision can be superseded are to be found in Regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.

23.	As was noted by the Tribunal of Commissioners in R(IB) 2/04, at paragraph 10, in considering the Great Britain equivalent regulation to Regulation 6, there can be no supersession unless one of the grounds for supersession specified in Regulation 6 was actually found to exist, and the ground which was found to exist must have formed the basis of the supersession in the sense that the original decision could only be altered in a way which followed from that ground.

24.	In the statement of reasons for its decision, the appeal tribunal has recorded:

‘This is a supersession case and grounds exist on 11 December 2014 to supercede [sic] the decision of 26 February 2013.  Her bowel condition does seem to have worsened and this is however the only meaningful worsening condition noted in the GP notes.

…

As regards supersession the Tribunal is satisfied that although there had been a worsening of the bowel condition it is not a relevant change of circumstance and accordingly the decision of the Decision Maker of 11 December 2014 is upheld.’

25.	To a certain extent, there is a contradiction in the statements made by the appeal tribunal as to whether the decision-maker on 11 December 2014 had grounds to supersede the decision dated 26 February 2013.  There is no doubt that the wording of the decision notices reads as if they were decisions on a fresh or renewal claim to DLA.  I am satisfied, however, that the appeal tribunal was aware of the nature of the decision under appeal.

	Disposal

26.	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 which decided not to supersede the earlier decision dated 26 February 2013.  The outcome of that decision was that the appellant continued to be entitled to the lowest rate of the care component of DLA;

(ii)	the appellant will wish to consider what was said at paragraph 77 of C15/08-09 (DLA) concerning the powers available to the appeal tribunal and the appellant’s options in relation to those powers;

(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

6 October 2016