LD-v-Department for Communities (II) [2017] NICom 44

Decision No:  C4/17-18(II)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INDUSTRIAL INJURIES DISABLEMENT BENEFIT

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 30 June 2016

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 30 June 2016 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 Industrial Injuries Disablement Benefit (IIDB) 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 1 December 2015 a decision maker of the Department decided that:

		(i)The appellant is suffering from a loss of faculty as a result of a relevant accident. 

		(ii) The relevant loss of faculty is impaired spinal function.

		(iii) The degree of disablement is 20%.

		(iv) The period of assessment commences on 21 December 2015 and continues for life.

		(v) The assessment is final.

6.	The decision maker also decided that a disablement pension was payable at the relevant weekly rate from 23 December 2015 for life.

7.	An appeal against the decision dated 1 December 2015 was received in the Department on 5 January 2016.  On 18 January 2016 the appellant was advised that the decision dated 1 December 2015 had been reconsidered but had not been changed.

8.	The appeal tribunal hearing took place on 30 June 2016.  The appellant was present.  There was no Departmental Presenting Officer present. The appellant was examined by one of the Medically Qualified Panel Members of the appeal tribunal.  The appeal tribunal disallowed the appeal and issued a decision to the following effect:

‘The claimant suffered an accident at work on 26.1.2012 and suffered loss of faculty being impaired spinal function as a result.  As at the 21.12.15 being the date of the commencement of the period of assessment, the degree of disablement is zero with no loss of faculty continuing beyond 21.12.2015.

Appeal disallowed.’

9.	On 17 November 2016 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS).  On 24 November 2016 the application for leave to appeal was refused by the Legally Qualified Panel Member (LQPM).

	Proceedings before the social Security Commissioner

10.	On 13 December 2016 a further application for leave to appeal was received in the office of the Social Security Commissioners.  On 9 January 2017 observations on the application for leave to appeal were requested from Decision Making Services (DMS).  In written observations dated 20 January 2017, Mr Hinton, for DMS, opposed the application for leave to appeal on one of the grounds submitted on behalf of the appellant but supported the application on another identified ground. Written observations were shared with the appellant on 20 January 2017. 

11.	On 19 June 2017 I granted leave to appeal. In granting leave to appeal, I gave, as a reason that an arguable issue had arisen as to whether the appeal tribunal had applied properly the principles arising in MB v DSD (II) ([2011] AACR 41, NICom 133).  On the same date I determined that an oral hearing of the appeal would not be required.

	Errors of law

12.	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?

13.	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

14.	In his very constructive and analytical written observations on the application for leave to appeal, Mr Hinton has made the following submissions:

‘Whilst I stated that the grounds advanced by (the appellant) did not amount to an error in law, it is my contention that the tribunal erred by not putting its findings arising from its medical examination to him for comment.

In the final paragraph of its reasoning the tribunal concluded:

“...The extent of the symptoms he describes are not borne out by the clinical examination.  There is indication of significant exaggeration today on examination.  What symptoms he does suffer do not on balance flow from the accident on 26 January 2012 and would have existed notwithstanding that accident.

The appeal fails”.

In contrast to the above I would refer to tabbed document 4A contained within the appeal papers.  This document relates to form BI118A in which a qualified medical adviser provided clinical findings and stated the appellant’s disabilities relating to the industrial accident.  The medical adviser then gave a 20% disablement assessment resulting from the relevant loss of faculty.  At part 5 of this form the medical adviser stated that the relevant injury resulting from the industrial accident was:

“Low back pain with nerve root irritation”.

At part 6 the disability specified as the result of the accident was:

“Impaired spinal function”.

At part 7 the medical adviser then described how the disability quoted above affected (the appellant) as follows:

“Difficulty with standing, walking, bending, lifting and carrying”.

Following the medical examination at the appeal hearing the tribunal stated in its reasons that (the appellant’s) symptoms did not on balance relate to the relevant industrial accident; however it can be seen that the medical adviser specified a relevant disability and loss of faculty arising from the same accident. Therefore, I would contend as the findings from this medical examination played a major role in the tribunal’s decision and they differed significantly from the medical adviser’s findings, it should have put these to (the appellant) for comment.  I would refer to reported NI decision [2011] AACR 41 (MB v Department for Social Development(II) NICom 133).  At paragraphs 14 to 17 of this decision the then Chief Commissioner Judge Martin stated:

“14.The following question arises: What responsibility or duty does a tribunal have when significant findings are made by the medical members of the tribunal in an examination of a claimant? In my view, the basic principle must be that if a tribunal raises a new issue of significance, fairness must require that the parties to the proceedings have the opportunity to comment on it. This conclusion is consistent with the authorities cited by Mr Savage, especially the general principle set out by Gillen J in A and Ors, Re Application for Judicial Review [2007] NIQB 30 at paragraph 40, set out at paragraph 13(x) herein.

15.It must be remembered that the present practice is for the medical members to carry out an examination with the consent, of course, of the claimant. The chairman, who is the legally qualified panel member, must be informed by his colleagues of any significant findings after the examination, otherwise there is no point in the examination. If any such findings raise issues on which the claimant has not had an opportunity to make comments, what action should the tribunal take? The case of Evans and others v Secretary of State for Social Security, a case in the English Court of Appeal, reported at R(I) 5/94, gives authority for the proposition that, where views are formed by a tribunal after a medical examination, “fairness points to the need for an adjournment so that, where possible, the tribunal’s provisional view can be brought to the attention of the claimant’s own advisers”. In addition Park J, when dealing with a Pensions Appeal Tribunal case (Butterfield v Secretary of State for Defence [2002] EWHC 2247 (Admin)), a case before the nominated judge, also emphasised that, if in relation to a medical issue, a medical member of a tribunal takes on board a medical point which is new and “might in itself be decisive”, fairness requires that such a point be explained to the appellant or to the appellant’s representative and that the appellant should be given a realistic opportunity to consider it. Park J also stated that “in some cases, though I hope not many, this may require the offer of an adjournment, however inconvenient and irksome that may be”.

16.It seems to me that it will be reasonable in most cases to expect the parties or the representatives to comment at the hearing on a point raised by the tribunal without having to adjourn the case. However, each case has to be dealt with in its own special circumstances. Nevertheless, when a new issue arises out of information gained by the medical tribunal members at a medical examination, at the very least the claimant or his advisers should be able to comment or explain to the full tribunal why any provisional finding made by the tribunal, as a result of the new issue arising, is not as significant as first thought.

17.I take the view that there need not always be an adjournment but the tribunal’s provisional view should be put to a claimant and the claimant should then expressly be offered an adjournment if the claimant can persuade the tribunal that the adjournment might eventually result in the tribunal taking a different view to the provisional view already taken.”

Consequently in line with the above the tribunal’s failure to put its findings to (the appellant) renders its decision erroneous in law.’

15.	I accept Mr Hinton’s analysis and for the reasons which have been set out by him agree that the decision of the appeal tribunal is in error of law.

16.	In these circumstances 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. 

	Disposal

17.	The decision of the appeal tribunal dated 30 June 2016 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:

(a)	The decision under appeal is a decision of the Department, dated 1 December 2015 a decision maker of the Department decided that:

(i)	The appellant is suffering from a loss of faculty as a result of a relevant accident. 

(ii)	The relevant loss of faculty is impaired spinal function.

(iii)	The degree of disablement is 20%.

(iv)	The period of assessment commences on 21 December 2015 and continues for life.

(v)	The assessment is final.

	The decision maker also decided that a disablement pension was payable at the relevant weekly rate from 23 December 2015 for life.

The appellant will note the guidance which was given to him by the appeal tribunal in the instant case concerning the powers of an appeal tribunal when considering an appeal against a decision which incorporates an extant award of entitlement to benefit and, more significantly, his options in connection with those powers. That guidance remains appropriate and the appellant may wish to seek independent advice before the further listing of his appeal.

(a)	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.  

(b)	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

23 August 2017