JR-v-Department for Communities (DLA) [2017] NICom 45

Decision No:  C46/17-18(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 2 August 2016

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	As will be explained in greater detail below, both parties have expressed the view that the decision appealed against was erroneous in point of law.

2.	Accordingly, pursuant to the powers conferred on me by Article 15(7) of the Social Security (Northern Ireland) Order 1998, I allow the appeal, I set aside the decision appealed against and I refer the case to a differently constituted tribunal for determination.

3.	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), for a particular period, remains to be determined by another appeal tribunal. 

4.	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 25 January 2016, which decided that the appellant was not entitled to DLA from and including 15 December 2015;

		(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. 

	Background

5.	On 25 January 2016 a decision maker of the Department decided that the appellant was not entitled to DLA from and including 15 December 2015.  A request for a reconsideration of the decision dated 25 January 2016 was made by the appellant on 1 February 2016.  Further correspondence in support of the reconsideration request was received on 5 February 2016.  On 12 February 2016 the decision dated 25 January 2016 was reconsidered but was not changed.  An appeal against the decision dated 25 January 2016 was received in the Department on 19 April 2016.  The appeal was received outside of the prescribed time limits for making an appeal but was admitted by the Department.  

6.	The appeal tribunal hearing took place on 2 August 2016. The appellant was present and was accompanied by his daughter-in-law.  There was no Departmental Presenting Officer present.  The appeal tribunal disallowed the appeal and confirmed the decision dated 25 January 2016.

7.	On 6 October 2016 an application for leave to appeal to the Social Security Commissioners was received in the Appeals Service (TAS).  On 27 October 2016 the application for leave to appeal was refused by the Legally Qualified Panel Member (LQPM). 

Proceedings before the Social Security Commissioner

8.	On 25 November 2016 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 21 December 2016 observations on the application for leave to appeal were requested from Decision Making Services (DMS).  In written observations dated 12 January 2017, Mr Hinton, for DMS, supported the application for leave to appeal on one of the grounds submitted on behalf of the appellant.  Written observations were shared with the appellant on 12 January 2017.  Written observations in reply were received from the appellant on 13 February 2017 which were shared with Mr Hinton on 15 February 2017.

9.	On 27 June 2017 I granted leave to appeal.  In granting leave to appeal, I gave, as a reason that an arguable issue had arisen in connection with the manner in which the appeal tribunal had assessed the evidence in connection with potential entitlement to the lowest rate of the care component of DLA.  On the same date I determined that an oral hearing of the appeal would not be required.

	Errors of law

10.	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?

11.	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

12.	In the application for leave to appeal, which was received in the Office of the Social Security Commissioners, the appellant made the following submission:

‘… little weight was put on the evidence of what (the appellant’s) representative was stating regarding how his illness affected his capability to be able to carry out basic hygiene with regards to washing, dressing, moving around both indoors and outdoors.  Little weight is applied to (the appellant’s) condition, weak gait, poor balance and also lack of power of grip. Therefore indicating (the appellant’s) need for supervision and frequent help from another person to be able to carry out basic activities reliably and safely.’

	13.	In his written observations on the application for leave to appeal, Mr Hinton has made the following submissions in respect of this specific ground:

‘I would contend that the tribunal’s reasoning regarding attention from another person in connection with bodily functions and continual supervision is sound and based on an extensive examination of the medical evidence. However, the tribunal’s conclusions regarding the preparation and cooking of a main meal give me cause for concern.  The tribunal stated in its reasoning that “there is no medical evidence of any limitation in hand function”.  However, this is contradicted by the evidence presented in paragraph 4.8 in the statement of reasons which stated:

		“Hands:
The GP noted osteo-arthritis of the small joints of the hands in May 2014”.

(The appellant) stated at the hearing that he “couldn’t prepare veg. Problem is right hand”.  I would contend that this evidence combined with that of the GP diagnosing osteo-arthritis of the hands in May 2014 should have prompted the tribunal to explore this issue further.  I would contend the tribunal was wrong to state that “there is no medical evidence of any limitation in hand function” when it is clear that there was.  The tribunal also stated that (the appellant) could drive a manual car; however (the appellant) stated that the hearing that he “has a ball hand-aid on the wheel”.  This would indicate that (the appellant) suffered from reduced grip in his right hand.  Therefore, taking all this evidence into account it appears (the appellant) did experience problems with reduced grip in his right hand and this should have been investigated further in order to properly determine his ability to prepare and cook a main meal. In failing to investigate this issue further the tribunal has failed in its inquisitorial role and I would contend the tribunal has erred in law regarding this issue.’

14.	It is clear, therefore, that both parties have expressed the view that the decision appealed against was erroneous in point of law.

15.	Accordingly, pursuant to the powers conferred on me by Article 15(7) of the Social Security (Northern Ireland) Order 1998, I allow the appeal, I set aside the decision appealed against and I refer the case to a differently constituted tribunal for determination.

(signed) K Mullan

Chief Commissioner

31 August 2017