WOD-v-Department for Communities (DLA) [2018] NICom 32

Decision No:  C67/17-18(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 13 December 2016

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 13 December 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 Disability Living Allowance, for a particular period, 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 15 October 2015 a decision maker of the Department decided that the appellant was not entitled to DLA from and including 3 August 2015. Additional information was received in the Department from the appellant on 2 November 2015.  An appeal against the decision dated 15 October 2015 was received in the Department on 4 November 2015. Correspondence was received from the appellant’s General Practitioner on 9 November 2015.  The letter of appeal was also treated by the Department as an application for a reconsideration of the decision dated 15 October 2015.  On 18 December 2015 the decision dated 15 October 2015 was reconsidered but was not changed.

6.	The appeal was first listed for oral hearing on 26 February 2016. The appellant was present, was unrepresented but was accompanied by two friends.  There was no Departmental Presenting Officer present.  The appeal was adjourned for the purposes of obtaining a report from an Examining Medical Practitioner (EMP).

7.	Further evidence was received in the Department from the appellant’s representative on 4 March 2016. On 21 April 2016 a further appeal submission was received in the Appeals Service (TAS).  The further submission addressed the contents of a report of an examination by an EMP, itself dated 6 April 2016.  The EMP report was attached to the further appeal submission. 

8.	On 26 April 2016 a further submission was received in TAS from the appellant.  In the file of papers which is before me is a copy of an exchange of correspondence between the appellant and a Customer Relations Manager in ATOS Healthcare.

9.	The appeal was re-listed for oral hearing on 9 September 2016.  The appellant was present and was represented by Miss Morris from the Citizens Advice organisation.  There was no departmental Presenting Officer present.  The appeal was adjourned following an application by Miss Morris that the appellant’s GP records should be before the appeal tribunal.

10.	The substantive appeal tribunal hearing took place on 13 December 2016.  The appellant was present and was represented by Mr Kerr of the Citizens Advice organisation.  There was no Departmental Presenting Officer present.  The appeal tribunal disallowed the appeal and confirmed the Department’s decision of 15 October 2015.

11.	On 1 March 2017 an application for leave to appeal to the Social Security Commissioner was received in TAS.  On 16 March 2017 the application for leave to appeal was refused by the Legally Qualified Panel Member (LQPM).

	Proceedings before the Social Security Commissioner

12.	On 20 April 2017 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 10 May 2017 observations on the application for leave to appeal were requested from Decision Making Services (DMS).  In written observations dated 7 June 2017, Mrs Adams, for DMS, supported the application for leave to appeal on certain of the grounds advanced by the appellant.  The written observations were shared with the appellant on 14 June 2017.

13.	On 22 November 2017 I granted leave to appeal.  When granting leave to appeal I gave as a reason that certain of the grounds of appeal were arguable.  On the same date I directed that an oral hearing of the appeal would not be required.

14.	On 14 December 2017 further correspondence was received from the appellant in which he made further submissions but also indicated that he had been awarded entitlement to Personal Independence Payment (PIP). This correspondence was shared with Mrs Adams on 15 January 2018 and she was asked to confirm whether PIP was in payment to the appellant, at which rate and the duration of the award.  On 30 January 2018 correspondence was received from Mrs Adams in which she indicated that the appellant had been awarded an entitlement to the enhanced rate of the mobility component and the standard rate of the daily living component from 16 December 2016 to 8 February 2021.

	Errors of law

15.	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?

16.	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.” 

	The error of law in the instant case

17.	In her very constructive written observations on the application for leave to appeal, Mrs Adams made the following submissions:

‘Whilst I would contend the tribunal has correctly concluded on (the appellant’s) entitlement to lower rate care component concerning the main meal test and the higher rate mobility component I would submit that there was evidence to suggest that (the appellant) may have been entitled to a higher rate of the care component and the lower rate mobility component.  It is my contention that whilst (the appellant) told the EMP on 06 April 2016 that he could tend to his own personal care needs, there was evidence by way of the claim form and medical records and his letter to the Commissioner that he required more assistance with his care needs, therefore, it would have been helpful for the tribunal to address its findings on entitlement to middle and higher rate care and it has erred in its failure to consider his entitlement to same despite the appellant’s request to pursue only lower rate care.

Furthermore in relation to the lower rate mobility component, the tribunal recorded that the appellant was not seeking same.  However, given there was evidence of falling and poor balance by way of the claim form, (the appellant’s) appeal letter and the medical evidence therein, the tribunal, in its inquisitorial role ought to have provided its findings on entitlement to same and therefore it has erred in law here.

In Court of Appeal Judgment Mongan v Department for Social Development [2005] NICA 16 the Court stated at paragraphs 15 and 17:

“[15] It is now well established that appeal tribunal proceedings are inquisitorial in nature – see, for example the recent decision of a tribunal of Social Security Commissioners CIB/4751/2002, CDLA/4753/2002, CDLA/4939/2002 and CDLA/514/2002 [reported as R(IB) 2/04]. Mr McAlister relied on this decision, however, to support his contention that the tribunal was not required to consider matters that had not been raised by the parties to the proceedings. In that case it was held that “raised by the appeal” should be interpreted to mean “actually raised at or before the hearing by one of the parties”. In so far as the decision suggests that an appeal tribunal would not be competent to inquire into a matter that arose on an appeal simply because it was not expressly argued by one of the parties to the appeal, we could not agree with it.  It appears to us that the plain meaning of the words of the statute, taken together with the inquisitorial nature of the appeal hearing, demand a more proactive approach.  If, for instance, it appeared to the tribunal from the evidence presented to it that an appellant might be entitled to a lower level of benefit than that claimed, its inquisitorial role would require a proper investigation of that possible entitlement.

[17] Whether an issue is sufficiently apparent from the evidence will depend on the particular circumstances of each case.  Likewise, the question of how far the tribunal must go in exploring such an issue will depend on the specific facts of the case.  The more obviously relevant an issue, the greater will be the need to investigate it.  An extensive inquiry into the issue will not invariably be required.  Indeed, a perfunctory examination of the issue may often suffice.  It appears to us, however, that where a higher rate of benefit is claimed and the facts presented to the tribunal suggest that an appellant might well be entitled to a lower rate, it will normally be necessary to examine that issue, whether or not it has been raised by the appellant or her legal representatives.” 

Whilst I accept that (the appellant’s) representative advised the tribunal that he was only seeking entitlement to the higher rate mobility component and lower rate care component it is my submission that there was sufficient evidence before the tribunal to suggest that he may be entitled to other components of DLA.  By not considering this matter further I would submit that the tribunal has failed in its inquisitorial role and as such has erred in law.  

	…

(The appellant) states his ESA report highlighted his ongoing schizophrenia and states even though this illness has not been mentioned in every medical report it is still an issue for him.  The appellant states it has become more frequent due to constant pain and stress he suffers but he cannot take any anti psychotic medication as it would have an adverse reaction with his other medication.  (The appellant) stated he never told the HCP he could cope with his mental illness but rather he must accept it.  In the GP factual report dated 10 September 2015, the GP states the appellant had attended mental health from 1997 to 2001 with psychotic illness but his main issue at present is anxiety.  In his claim form, (the appellant) advised he needed supervision or guidance when going outdoors due to anxiety and panic attacks.

In assessing the appellant’s mental condition on the appellant’s care needs, the tribunal has recorded:

“In his claim form the Appellant indicated that he had a psychotic illness, rheumatic disease and excessive acid.  He indicated significant difficulties with his care needs and also indicated supervision needs.  However at the hearing of his appeal he indicated that he was seeking only the lowest rate of the care component.”

The tribunal evaluated the effect of (the appellant’s) mental condition in context of the main meal test and recorded:

“The Tribunal accepted that at the period being considered the Appellant had recurrent bouts of gout and low mood secondary to his physical problems but did not consider that these conditions were so disabling that most of the time he would be unable with use of appropriate aids to prepare a cooked main meal for one person”

In the penultimate paragraph of the reasons for decision on the care component, the tribunal has recorded:

“An assessment by the Mental Health Department on 27 August 2015 indicated that there was no evidence of severe mental illness and the Appellant had had an extended period of stable mental health.  It was further noted from the GP notes that at the consultation on 10 September 2015 no psychotic features were noted.  The Appellant denied this and indicated that he had asked his GP not to report such symptoms.  The Tribunal did not accept this evidence and considered that it was unlikely his GP would not report such symptoms at his request.  The Tribunal considered that the appellant overstated his level of difficulty.” 

In respect of (the appellant’s) ESA report, the tribunal noted:

“The Tribunal had also investigated the reasons why the Appellant had been placed in the Support Group for Employment and Support Allowance.  Form ESA85A was provided to the tribunal and it was noted on 27 January 2015 it was concluded that the medical evidence indicated that there would be a substantial mental or physical risk if the Appellant were found capable of work or work-related activity because an ongoing schizophrenia.  The severity and unpredictable nature of the condition would support risk of mental health deterioration if he was deemed suitable for work or work-related activity.  This was not related to the appellant’s mobility issues.”

Whilst the tribunal has adequately addressed the impact of (the appellant’s) mental condition on his care needs, it is my submission that it has failed to provide adequate findings on what impact, if any, his anxiety has in respect of the low rate mobility component.  In view of my comments above I would contend the tribunal should have provided its observations on how (the appellant’s) mental health impacted on this issue and in failing to do so it has erred in law.’

18.	I remind appeal tribunals of what I said in paragraphs 36 to 39 of my decision in C37/09-10(DLA), as follows:

“36. 	What is the ambit of the inquisitorial or enabling role where the appellant is represented?  This was precisely the situation in Mongan. In my view, the principles set out in Mongan should not lead to the diminution or dilution of good advocacy before the appeal tribunal.  A good advocate will seek to persuade an appeal tribunal that the evidence before it is supportive of entitlement to all or part of the relevant social security benefit – a certain component at a certain rate.  Good advocacy includes, however, the concession by the advocate that the evidence before the appeal tribunal does not support entitlement to all or part of the relevant benefit – again a certain component at a certain rate.  Many of the representatives who appear before appeal tribunals on behalf of their clients have the expertise to make relevant and appropriate submissions, including concessions, to the appeal tribunal concerning the issues arising in the appeal.  That expertise and experience should not, in my view, be lost by an interpretation of Mongan which suggests that there can be no reliance by an appeal tribunal on concessions made by a representative.”  

37.	In my view, the duties set out in Mongan can be fulfilled by an appeal tribunal: 

(i)	inviting submissions from the representative which submissions may include concessions by the representative concerning issues arising in the appeal;

(ii)	clarifying the legal and evidential basis on which any concession is based;

(iii)	ensuring that the appellant agrees with the submissions and any concession made by the representative;

(iv)	adducing any further evidence which may be necessary to assist in the appeal tribunal’s consideration of the submission;
	
(v)	most importantly, considering the submission which has been made, and determining whether, on the basis of its independent and objective assessment of the submission, the appeal tribunal agrees with it; and

(vi)	recording the appeal tribunal’s conclusions on (i) to (v) above both in the record of proceedings (ROPs) and in any SORs for the appeal tribunal’s decision.

38.	While the procedure which is being recommended may seem detailed and cumbersome, it is submitted that it should not take an appeal tribunal long to consider any submission made by the representative, to make its determination in respect of that submission, nor to record the operation of the procedure in the relevant appeal tribunal documentation.

39.	It is important to note that the decision of the appeal tribunal, and the SORs for the appeal tribunal’s decision, are often taken up with a detailed analysis of why the appeal tribunal has not accepted the submission by the appellant and/or the appellant’s representative, that the conditions of entitlement to the relevant social security benefit are not satisfied.  In my view, there should be a parallel consideration, determination and record of the appeal tribunal’s findings in respect of any concession made by the appellant or representative as to why any concession that the rules, or part of the rules of entitlement are not satisfied.’ 

19.	Applying those principles in the instant case, although I find the matter to be marginal, I am satisfied that there was sufficient evidence before the appeal tribunal for it to give consideration to potential entitlement to the lower rate of the mobility component of DLA despite the concession made by the appellant’s representative that this was not an issue raised by the appeal. 

20.	I would add that it is arguable that the statement that ‘The lower rate of the mobility component was not contested’ is indicative of the fact that the appeal tribunal did consider the concession which had been made and determined, on the basis of its independent and objective assessment of the submission, that it agreed with it. It is the case, however, that there is no indication that the appeal tribunal ensured that the appellant agreed with the concession made by the representative.

21.	In addition, and more significantly, I am reminded of what was said by a Tribunal of Commissioners at paragraph 26 of its decision in R4/01(IS)(T):

‘We take the view that a Tribunal must have a reasonable expectation that the important and fundamental issues in a case will be brought to its attention in any proceedings where there is professional representation on behalf of a claimant.  However, somewhat reluctantly we conclude that if an issue on the evidence, is explicitly or implicitly before a Tribunal, even though not raised by the professional representative, it is the Tribunal’s duty and responsibility to deal with such an issue.’
 
22.	Accordingly, and with some degree of reluctance given the appeal tribunal’s careful and judicious management of the other aspects of the appeal, and its circumspectly prepared statement of reasons, I find that the decision of the appeal tribunal is in error of law. 

	Disposal

23.	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 15 October 2015 in which a decision maker of the Department decided that the appellant was not entitled to DLA from and including 3 August 2015;

		(ii) as was noted above, Mrs Adams has informed me that the appellant had made a successful claim to Personal Independence Payment (PIP) and had been awarded an entitlement to the enhanced rate of the mobility component and the standard rate of the daily living component from 16 December 2016 to 8 February 2021.  The Department is directed to prepare a submission on the limits of the appeal tribunal’s jurisdiction, and, more particularly, the end date of any period of potential entitlement to DLA, in line with the provisions of the Personal Independence Payment (Transitional Provisions) Regulations (Northern Ireland) 2016;

		(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

17 July 2018