MB-v-Department for Communities (PIP) [2018] NICom 48

Decision No:  C9/18-19(PIP)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

PERSONAL INDEPENDENCE PAYMENT

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 26 May 2017

DECISION OF THE SOCIAL SECURITY COMMISSIONER

	Leave to appeal is granted and the appeal is allowed.  The decision of the Appeal Tribunal sitting at Spires Assembly Buildings on 26 May 2017 under reference BE/1143/17/02D was erroneous in point of law and is set aside.  The case is referred to a differently constituted panel of the Appeal Tribunal for re-hearing in accordance with the directions at paragraph 7 below.

	REASONS

1. 	The Department’s representative in making a submission on the application consented to the Commissioner treating the application as an appeal and determining any question arising on the application as if it arose on appeal, in accordance with regulation 11(3) of the Social Security Commissioners (Procedure) Regulations (NI) 1999.  By an email dated 22 August 2018 the claimant’s representative did the same.  I consider that the appeal can properly be determined on the papers before me.

2. 	In the Appeal Tribunal proceedings, the claimant’s representative had identified activities requiring to be considered, not particular descriptors within each activity.  The use of an aid or appliance, which forms part of qualifying descriptors for Daily Living activities 1 to 6 (among others), was thus very much “in play”.  The aids and appliances had been prescribed to the claimant by a publicly funded occupational therapist and so were unlikely to have been provided unless the therapist considered them to be necessary.  Further, they were extensive in character, extending to such matters as rails in the hall and on the stairs as well as to those more directly relevant to PIP.  The tribunal does not address the prescription by the occupational therapist of the aids and appliances and this in my view amounts to an error of law, both for failure to address descriptors that were in issue and for failure to give sufficient reasons to explain what it made of the OT-related evidence and, in particular, why, despite it, it concluded that the claimant was grossly exaggerating.

3.	 I also consider that the tribunal erred in relation to mobility activity 1.  Contrary to the grounds of appeal, I am not persuaded that there is any necessary incompatibility between the tribunal’s finding that the claimant had been dropped off at the venue and made her way inside alone and the indication from the record of proceedings that her sister attended the hearing: the sister may have parked the car and returned.  However, I cannot see that being dropped off outside a regulated public space, in the knowledge that one’s sister would be returning shortly, in circumstances where there may have been little choice, necessarily negates a claim for mobility activity 1.  Nor do I see the relevance to the claimant’s ability to undertake a journey (which is what is implied by the tribunal’s use of “also” at the start of the sentence) of the finding that she offered the Healthcare Professional directions to get back to town.  I conclude that the tribunal’s rejection of mobility activity 1 to a material extent lacks a rational basis or at least is insufficiently explained.

4. 	I also consider that the tribunal erred in law in relation to mobility activity 2.  The claimant herself had identified breathlessness but also back pain as the main constraints on her mobilising (not her cardiac trouble), but the tribunal appears to have made no findings about her back pain and any consequential limiting effect upon her.

5. 	In my view the final paragraph of the grounds proceeds on a false premise by overstating the weight placed by the tribunal on the lack of mention of the walking aid in various medical reports.  However, the claimant does not need this point in order to succeed in the appeal.

6. 	Before giving directions below I would observe that it may be incumbent on the tribunal to which this case is remitted to indicate what it made in relation to mobility activity 1 of the award of DLA which had been in payment at the lower rate of the mobility component - because a person requires guidance or supervision to take advantage of the faculty of walking out of doors: see YM v SSWP (PIP) [2018] UKUT 16 (AAC).  (An application by SSWP to the Upper Tribunal for permission to appeal to the Court of Appeal in that case has been refused).

7. 	I direct therefore that the question of whether the claimant satisfies the conditions of entitlement for personal independence payment is to be looked at by way of a complete re-hearing in accordance with the legislation and this decision.  Unless otherwise directed, the claimant or her representative must ensure that any further written evidence is filed with the Appeal Tribunal no less than 21 days before the hearing date.  The tribunal will need to make full findings of fact on all points that are put at issue by the appeal.  If the tribunal rejects the claimant’s evidence, it must provide a sufficient explanation why it has done so and must give adequate reasons for its conclusions.  The tribunal must not take account of circumstances that were not obtaining at the time of the decision under appeal, which was taken on 10 December 2016, but may have regard to subsequent evidence or subsequent events for the purpose of drawing inferences as to the circumstances obtaining at that time: R (DLA) 2/01 and 3/01.

8. 	These directions are subject to any further directions which may be given by a salaried judge of the Appeal Tribunal.

9. 	While it is not a matter for me to direct, it is suggested that the claimant should attend the re-hearing. 

10.  	The decision on the re-hearing is a matter for the Appeal Tribunal and no inference as to the outcome should be drawn from the fact that this appeal has been allowed on a point of law.

	(signed) C G Ward

	Deputy Commissioner (NI)

	7 August 2018