NDR-v-Department for Social Development (DLA) [2013] NICom 42 (13 June 2013)

NDR-v-Department for Social Development (DLA) [2013] NICom 42

Decision No: C5/13-14(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

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 18 March 2011

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This appeal has a long and complicated background. During the course of the proceedings leading to this decision, the Office of the Social Security Commissioners became aware that the appellant had, sadly, died on 24 September 2011. This decision will be issued to the appointee of the late appellant.

2. I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal. My decision is as follows. In connection with the overall substantive issues which arose in the appeal, namely whether the late appellant satisfied the conditions of entitlement to disability living allowance (DLA), I have concluded that there is no error in the decision of the appeal tribunal dated 15 December 2010. In written submissions on the application for leave to appeal, Mr Hinton, for the Decision Making Services (DMS) section of the Department, has conceded that there is a technical error in how the appeal tribunal addressed the dates for which the appellant satisfied the conditions of entitlement to the lower rate of the mobility component and the lowest rate of the care component of DLA. The appeal tribunal concluded that the start date for the revised period should commence on 9 February 2010 and should continue until 9 February 2012 (on the basis of its application of the ‘effective date of supersession’ rule). Mr Hinton concedes that the appropriate commencement date should have been 15 December 2010 and that, accordingly, there is a technical error in the appeal tribunal’s decision.

3. I remake the decision of the appeal tribunal to the following effect. The late appellant was entitled to the lowest rate of the care component and the lower rate of the mobility component of DLA from 15 December 2010 to 9 February 2012. Of course, the death of the late appellant on 24 September 2011 will mean that the forward award by the appeal tribunal would have to cease on the date of his death.

4. The effect of my decision and Mr Hinton’s concession is as follows. The late appellant remained entitled to the higher rate of the mobility component and the middle rate of the care component until 14 December 2010. From 15 December 2010 to 24 September 2011 the late appellant was entitled to the lower rate of the mobility component and the lowest rate of the care component of DLA.

5. The family of the late appellant will be disappointed that the appeal is unsuccessful to the extent that the appellant did not satisfy the conditions of entitlement to DLA at the higher rate of the mobility component and the middle rate of the care component until his death. The effect of the concession made by Mr Hinton is that the period of the reduction of his entitlement has been altered.

6. The late appellant will be referred to as ‘the appellant’ throughout the remainder of this decision.

Background

7. On 6 February 1998 an adjudication officer (as he then was) decided that the appellant should be entitled to an award of the higher rate of the mobility component and the lowest rate of the care component of DLA from and including 19 November 1997. On 26 October 2000 an application for a supersession of the decision dated 6 February 1998 was received in the Department. On 18 January 2001 and following receipt of additional information, a decision maker of the Department superseded the decision dated 6 February 1998, maintaining the award of the higher rate of the mobility component but increasing entitlement to the care component to the middle rate. Following receipt of various pieces of correspondence, an appeal against the decision dated 18 January 2001 was received in the Department on 9 January 2003. The appeal was subsequently withdrawn on 24 March 2004.

8. On 5 February 2010 a further application to supersede the decision dated 6 February 1998 was received in the Department. On 9 February 2010 a decision-maker decided that there were no grounds to supersede the decision dated 18 January 2001. On 26 February 2010 an appeal against the decision dated 9 February 2010 was received in the Department.

9. The appeal was first listed for hearing on 28 July 2010. The appeal was adjourned and the appeal tribunal directed that, inter alia, the appellant be forwarded correspondence setting out the appeal tribunal’s duty with respect to the appeal; its powers in connection with consideration of the existing award of entitlement to DLA; and details of the appellant’s options arising from those powers. Correspondence to that effect was forwarded to the appellant on 11 August 2010. On 17 August 2010 e-mail correspondence was received in the office of the Appeals Service (TAS) from the appellant’s brother. In that e-mail he challenged the tone and content of the correspondence dated 11 August 2010 which had been sent to the appellant and set out details of the appellant’s medical conditions and their effects on him.

10. The appeal was re-listed for hearing on 14 October 2010. Once again the appeal was adjourned. The reason for the adjournment was stated to be:

‘Not sufficient evidence to proceed. Panel wish to try to obtain more evidence.’

11. The appeal tribunal issued the following directions:

‘1. Dept to arrange a domiciliary visit to [sic] an EMP’

2. Appellant should try to get his notes/records made available to the panel for next hearing.

3. Dept’s supersession - Presenting Officer to attend.’

12. There is within the file papers which is before me a copy of a further submission dated 19 November 2010. The further submission makes reference to the directions made at the adjourned hearing on 14 October 2010 and indicated that consequent on one of those directions the appellant was examined by an Examining Medical Practitioner (EMP) on 10 November 2010. It was then submitted by the submission writer that subsequent to the receipt of the report of the examination conducted by the EMP:

‘Given the available evidence I respectfully request that the tribunal consider if the current award of the highest rate of the mobility component of Disability Living Allowance remains appropriate.

…

Having considered the evidence in the EMP report I submit that the current award of the middle rate care component for day attention of Disability Living Allowance remains appropriate.’

13. There is also within the file of papers which is before two items of hand-written correspondence which were prepared by the appellant’s brother in connection with his appeal.

14. The substantive appeal tribunal hearing took place on 15 December 2010. The appellant was not present. There was a Departmental presenting officer present. The appeal tribunal disallowed the appeal and issued two decision notices in the following form:

‘The panel award low rate mobility from 9/2/2010. The Panel remove High Rate Mobility Award.

Low rate mobility awarded from 9/02/2010 until 9/2/2012.’

and

‘Appeal Disallowed

The Panel remove the award of Middle Rate care from 09/02/10. The Panel award Low Rate Care (attention or main meal) from 09/02/10 until 9/2/2012’

15. On 21 February 2011 an application for leave to appeal to the Social Security Commissioner was received in TAS. On 23 February 2011 the application for leave to appeal was refused by the legally qualified panel member.

Proceedings before the Social Security Commissioner

16. On 18 March 2011 a further application for leave to appeal was received in the Office of the Social Security Commissioners. On 1 September 2011 written observations on the application for leave to appeal were requested from DMS. Written observations were received on 21 September 2011 in which Mr Hinton, for DMS, opposed the application on all of the cited grounds.

17. Written observations were shared with the appellant at his last known address on 4 October 2011. It was at this stage in the proceedings that the office became aware that, sadly, the appellant had died. Confirmation of the unfortunate death of the appellant was received from Mr Hinton on 20 October 2011. There then followed what was an unavoidable delay of over ten months when clarification was sought as to whether an appointment had been made to continue with proceedings before the Social Security Commissioner. Following confirmation that the late appellant’s mother had been appointed to act in connection with the proceedings, further observations were required from Mr Hinton on the specific issue of the effective date of supersession as found by the appeal tribunal.

Errors of law

18. 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.

19. 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.”

Was the decision of the appeal tribunal in the instant case in error of law?

20. In the application for leave to appeal to the Social Security Commissioner, it was submitted that the decision of the appeal tribunal was in error of law on the basis that:

(i) The appeal tribunal was wrong in the assessment of the medical evidence and used it to suit its own agenda. The appellant had stated that he suffered from severe back pain and the tribunal recognised this in the statement of reasons. It failed, however, to mention the strong painkillers he was taking to alleviate this. The appeal tribunal was also wrong to state he no longer had any problems with his stomach.

(ii) The appeal tribunal was wrong to state that the appellant’s medical condition had improved and that he did not require as much care. It was submitted by the appellant’s brother that he goes to see him four-five times per day and that his health has deteriorated in the last few years.

(iii) The appeal tribunal was wrong to reduce the mobility component because the appellant’s epilepsy affects him daily and his back pain has become more pronounced.

(iv) The appeal tribunal’s decision was borne out of vindictiveness because the appellant appealed a decision of the Department. The appellant was also a victim of reverse discrimination.

21. With respect to the submission at (i) above, I cannot accept it. Looking at the statement of reasons for the appeal tribunal’s decision, it is clear that the appeal tribunal undertook a rigorous and thorough assessment of all of the evidence which was before it. The appeal tribunal had access to the appellant’s general practitioner records and had, itself, commissioned a report following an examination by an Examining Medical Practitioner. The appeal tribunal also considered the submissions which were made on behalf of the appellant by his brother. The appeal tribunal has set out in some detail its conclusions following an assessment of all of the evidence, including the medical evidence. That assessment and the reasoning of the appeal tribunal were rational and coherent. I cannot agree, therefore, that the appeal tribunal manipulated the medical evidence as has been suggested.

22. As was noted by Mr Hinton in his written observations on the application for leave to appeal the appeal tribunal noted the strength of medication which the appellant was taking for his medical conditions and also noted, in a specific section within the statement of reasons, his problems with his pancreas and stomach. Once again, therefore, I cannot agree that the decision of the appeal tribunal is in error on the basis of this submitted ground.

23. In relation to the submission at (ii) above it is clear that the appeal tribunal accepted that the appellant had medical conditions which it described as ‘significant’. The task of the appeal tribunal was to decide whether the conditions of entitlement to DLA were satisfied and for which period. The appeal tribunal concluded that despite the significance of the appellant’s medical conditions, there had been a relevant change of circumstances since the decision of the Department dated 6 February 1998, namely that there had been an improvement in the appellant’s functional ability. The appeal tribunal compared the evidence which was available to support the award made on a supersession in 2001 with the evidence which was available to it on the date of the appeal tribunal hearing. That latter evidence included the report of the examination conducted by the EMP on 10 November 2010. The appeal tribunal has set out in some detail the basis on which it has concluded that there had been a relevant change of circumstances and I cannot find any error in its reasoning in that respect.

24. In relation to the submission at (iii) above, it is important to note that the appeal tribunal does have the power to consider whether an existing award of entitlement to DLA is appropriate - see my decision in C15/08-09 (DLA). As was noted by Mr Hinton in his written observations on the application for leave to appeal, the appeal tribunal, in a separate section in the statement of reasons for its decision, did undertake an analysis of the medical evidence concerning the appellant’s problems with epilepsy and then incorporated that analysis into its overall assessment of the evidence which was before it. I cannot, therefore, agree that the decision of the appeal tribunal is in error of law on the basis of this submitted ground.

25. In his written observations on the application for leave to appeal, Mr Hinton made the following submission in connection with the final ground on which the application was based:

‘I have perused both the record of proceedings and the statement of reasons and I can find no evidence in these papers of vindictiveness or any form of discrimination against (the claimant). The role of a tribunal as a decision making authority is to establish the facts, gather all the available evidence and arrive at a balanced and fair decision. It is evident from the papers that the tribunal gave full consideration to all the evidence placed before it, the assessment of that evidence was fair and its decision was arrived at in a fair and even handed manner. I would also make the point that (the claimant’s) appeal hearing was adjourned twice and this was dealt with in the appeal papers as follows:

“The case was initially listed as a paper hearing on 28.7.2010 but was adjourned by the panel so that

1. The Appellant could be advised per the Commissioner’s guidelines on existing awards Decision No. CIS/08-09 (DLA). (Letter done to Appellant).

2. The Appellant could be invited at attend an oral hearing.

3. General Practitioner notes and records could be sought.

Thereafter there was correspondence prior to the next sitting on 14.10.2010. Despite consent having been given, no General Practitioner notes and records were available. The panel decided, in interests of justice, to again adjourn to try to get General Practitioner notes as well as seek Presenting Officer’s attendance and to have the Appellant assessed at his home by an Examining Medical Practitioner. This happened on 10.11.2010 after which the Department prepared a further submission (19.11.2010) and the Appellant’s brother made further written submissions.”

I would contend the above is evidence that the tribunal made every effort to obtain all the relevant information to ensure that (the claimant) received a fair hearing. As can be seen from the above the panel stated that this information should be obtained in the interests of justice. It informed (the claimant) in writing (11 August 2010) of the tribunal’s powers concerning awards and the options open to him. It is also obvious that the tribunal was not prepared to go ahead with the hearing until the GP notes and records were obtained and a full assessment was carried out by an Examining Medical Practitioner. I would contend therefore that the hearing was conducted in a fair and professional manner. Consequently no error in law can be identified in this regard.’

26. I agree with this submission and for the reasons set out by Mr Hinton also agree that the decision of the appeal tribunal is not in error on the basis of this submitted ground.

(signed): K Mullan

Chief Commissioner

10 June 2013

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