MJW-v-Department for Social Development (DLA) [2010] NICom 41
Decision No:  C27/08-09(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 29 April 2008

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	Having considered the circumstances of the case I am satisfied that the appeal can properly be determined without a hearing.

2.	The decision of the appeal tribunal dated 29 April 2008 is in error of law.  The error of law identified will be explained in more detail below.

3.	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.

4.	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, and there may be further findings of fact which require to be made.  Further 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.

5.	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.

6.	The legal effect of my decision, in terms of entitlement to disability living allowance (DLA) is that the appellant remains entitled to the lowest rate of the care component of that benefit, from and including 14 June 2007.  

7.	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 DLA remains to be determined by another appeal tribunal.  The newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal.

	Background

8.	On 14 June 2007 a decision-maker of the Department decided that grounds existed to supersede an earlier decision of the Department, dated 3 February 1994.  That earlier decision had awarded an entitlement to the higher rate of the mobility component and the middle rate of the care component of DLA from and including 30 December 1993.  The decision dated 14 June 2007 awarded an entitlement to the lowest rate of the care component of DLA from and including 14 June 2007.

9.	An appeal against the decision dated 14 June 2007 was received in the Department on 21 June 2007.

10.	An oral hearing of the appeal took place on 22 November 2007.  The hearing was adjourned.  The appeal tribunal’s reasons for the adjournment and directions issued as a result of the adjournment will be discussed in greater detail below.

11.	The substantive appeal tribunal hearing took place on 29 April 2008.  The appellant did not attend the oral hearing of the appeal, having indicated in advance that he would not do so.  A presenting officer of the Department was present.  The appeal tribunal disallowed the appeal, did not confirm the decision dated 14 June 2007 but substituted its own decision to the effect that the appellant did not satisfy the conditions of entitlement to either component of DLA from and including 14 June 2007.

12.	An application to set aside the decision of the appeal tribunal was forwarded to the Appeals Service on an unknown date.  On 14 October 2008, the application to set aside was refused.

13.	On 27 October further correspondence was received from the appellant which the legally qualified panel member (LQPM), on 4 November 2008 determined should be treated as an application for leave to appeal to the Social Security Commissioner.

14.	On 4 December 2008, the application for leave to appeal was allowed by the LQPM.  The point of law identified by the LQPM was whether the appeal tribunal erred in law in not seeking medical evidence in addition to the evidence contained in the Departmental submission, and the appellant’s general practitioner notes and records.

15.	On 23 December 2009 the appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners.

16.	On 17 February 2009 observations were sought from Decision Making Services (DMS) and these were received on 16 March 2009. DMS opposed the appeal.

17.	A plethora of correspondence has been received from the appellant and/or his wife in connection with the appeal, all of which has been shared with DMS.  Further responses have, in turn, been received from DMS, all of which have been shared with the appellant.

	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.”

	The error of law in the instant case

20.	In C15/08-09(DLA), I gave detailed guidance to appeal tribunals on the approach to be taken in cases where the decision under appeal incorporates an existing award.  In C3/10-11(DLA), I expanded on that guidance to deal with the circumstances where the existing award is not initially challenged by the Department, in the appeal submission, but subsequently becomes an issue raised by the appeal, either because the appeal tribunal is considering exercising its own judicial discretion to consider the issue of the existing award, or because that issue was subsequently raised as a specific issue by the Department.

21.	At paragraphs 31 to 39 of C3/10-11(DLA) I stated:

‘31.	In my view, however, it cannot be the case that the protections afforded to appellants by the appellate authorities with respect to an appeal tribunal’s powers to make a decision which is less favourable to the appellant than the decision under appeal, and which involves the removal of an existing entitlement, are confined to those appeals where both the appellant and Department do not call the validity of an existing award into question and do not, thereby, raise it as an issue in the appeal.

32.	It seems to me that in the circumstances such as those arising in the present appeal where the Department, at the appeal tribunal stage, has called into question the validity of a decision made by one of its own officers, and submits that the appeal tribunal should consider making a decision less favourable than the decision under appeal and, which may involve the removal of an existing award, the same protections, in terms of the provision of explanations, the detailing of powers and options, the requirements for recording, as set out in paragraph 77 of C15/08-09(DLA), should be afforded to the appellant.  In essence, if there is a possibility of an appellant, at the conclusion of appellate proceedings instigated by him or her, being in a worse position from the perspective of benefit entitlement, to that pertaining at the commencement of those proceedings, then the full implications of that possibility require clarification and explanation.  It seems to me that the principles of fairness, through the ordinary principles of natural justice, or the Human Rights Act 1998, incorporating Article 6 of the European Convention on Human Rights, require such an outcome.

33.	The distinction between whether the issue has or has not been raised by the appeal is, in any event, an arbitrary one and, it seems to be that the Department is often ambivalent as to whether the validity of an existing award, made by way of the decision under appeal, is a matter which is raised by the appeal.  The appeal submission in the present appeal is prepared in a format which is common in appeals where the decision under appeal incorporates an existing award.  Thus, at page 6 of the submission, the appeals writer, in relation to the appellant’s existing award of entitlement to the middle rate of the care component of DLA submits that:

	‘I submit that (the claimant) has been awarded the middle rate of the care component from and including 20.3.07.  I submit that this is not disputed by (the claimant) or the Department and therefore need not be considered by the Tribunal in this current appeal, unless evidence becomes available on the day of the hearing casting doubt on the validity of the award.’

34.	There was a paragraph in almost identical language in the appeal submission which was before the appeal tribunal in C15/08-09(DLA).

35.	In my view, where an appeal tribunal is considering making a decision which has the potential of removing an existing award of entitlement to a social security benefit, whether through the exercise of its own judicial discretion to do so, or because that issue was specifically raised by the appeal, then the appeal tribunal’s powers with respect to decision-making, and the appellant’s options in light of those powers should be clearly and unequivocally explained to the appellant, in language and terms which are readily intelligible to the appellant, in line with the guidance provided in paragraph 77 of C15/0809(DLA).

36.	It should be noted that at sub-paragraph (vii) of paragraph 77 I indicated, as part of the safest and best practice, that appeal tribunals should:

	‘(vii)	to ensure that in a case determined on the papers alone and, where the appeal tribunal is considering exercising its judicial discretion to make a decision which is less favourable to the appellant, that it is satisfied that an appellant has had sufficient notice of the appeal tribunal’s intention to consider making a decision which is less favourable, which will be likely to involve adjourning the appeal, and providing an appropriate description of the appeal tribunal’s powers and the appellant’s options in light of those powers.’

37.	I am of the view that the principles set out in this sub-paragraph are equally applicable to oral hearings where the appellant is not in attendance.

38.	In C15/08-09(DLA), I had also indicated, at paragraph 74:

	‘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 set out its powers and options, nor to record the operation of the procedure in the relevant appeal tribunal documentation.’

39.	Those comments were made in the context of the appeal tribunal setting out its powers and the appellant’s to the appellant at an oral hearing where the appellant is present, or in cases determined on the papers alone.  The comments are equally applicable to cases where the appellant has failed to attend an oral hearing of the appeal, despite having given an indication that he or she would be present.’

22.	How did the appeal tribunal in the instant case apply the principles set out in paragraph 77 of C15/08-09(DLA)?

23.	There were two separate hearings in respect of the appeal proceedings brought by the appellant.  He did not attend any of those hearings, through his own choice.  I am aware that the Appeals Service (TAS) issues to all appellants, as part of the paperwork associated with the appeal, an information leaflet which sets out, amongst other things, the powers of the appeal tribunal.

24.	At the first oral hearing of the appeal, the appeal tribunal issued the following reasons for its adjournment:

‘The Tribunal considers that it would assist its decision if (the claimant) were to attend and give evidence at the adjourned hearing.’

25.	The appeal tribunal also issued the following directions consequent on the adjournment:

‘Relist in due course as oral hearing.  (The claimant) should be informed that the Tribunal at the adjourned hearing would have to consider whether his existing award is appropriate and that it is open to a Tribunal to decide that there should be no award.  This is not to say that the Tribunal has formed a view on entitlement at this stage.’

26.	It seems to me that the appeal tribunal was alert to the requirement that the appellant had to be made aware that what he might have considered to be a dormant issue in the appeal – his existing entitlement to the lowest rate of the care component of DLA – had now become a live issue and that the appeal tribunal was considering exercising its judicial discretion to make a decision which is less favourable to the appellant.

27.	As was noted above, at sub-paragraph (vii) of paragraph 77 I indicated, as part of the safest and best practice, that appeal tribunals should:

‘(vii)	to ensure that in a case determined on the papers alone and, where the appeal tribunal is considering exercising its judicial discretion to make a decision which is less favourable to the appellant, that it is satisfied that an appellant has had sufficient notice of the appeal tribunal’s intention to consider making a decision which is less favourable, which will be likely to involve adjourning the appeal, and providing an appropriate description of the appeal tribunal’s powers and the appellant’s options in light of those powers.’

28.	Although in the instant case the issue was a marginal one, the issued terms of adjournment and further directions did not provide an appropriate description of the appeal tribunal’s powers and the appellant’s options in light of those powers.  Additionally, sufficient reliance could not be placed on the content of the TAS information leaflet, or the expectation that this was read and/or understood by the appellant.  Accordingly, the principles set out in paragraph 77 of C15/08-09(DLA) have not been adhered to.

29.	Reinforcement for this conclusion is to be found in the fact that at the second and substantive oral hearing of the appeal, a presenting officer from the Department was present.  The record of proceedings for the appeal tribunal’s decision records that:

‘Presenting Officer feels existing award dubious – on basis of main meal tests difficulty standing – doesn’t have to stand to prepare main meal.’

30.	In the appeal submission prepared for the appeal tribunal hearing, the Department’s position had, as in C15/08-09(DLA) and C3/10-11(DLA) been ambivalent to the validity of the existing award.  At page 9 of the appeal submission, the appeals writer had included the standard ‘undecided’ paragraph that:

‘I submit that (the claimant) has been awarded the lowest rate of the care component from 14.6.07 for help to prepare a cooked main meal.  I submit that this is not disputed by (the claimant) or the Department and therefore need not be considered by the Tribunal in this current appeal, unless evidence becomes available on the day of the hearing casting doubt on the validity of the award.’

31.	By the time of the second oral hearing of the appeal, the validity of the existing award had become an issue raised by the appeal.

32.	In the statement of reasons for the appeal tribunal’s decision, it is noted that:

‘… In the absence of oral evidence from the Appellant the Tribunal had then to decide the appeal on the basis of the evidence available to it and in reaching its decision considered the findings of the Examining Medical Practitioner, the other documents included in the Departments [sic] appeal submission, the Appellant’s submissions and the Appellant’s General Practitioner notes and records, including hospital reports therein.’

33.	It seems to me that had the appellant been given a more comprehensive description of the appeal tribunal’s powers and the appellant’s options in light of those powers, as part of the terms of the adjournment of the first oral hearing and the directions issued consequent on that adjournment, and had been made aware that the Department had, subsequent to the preparation of the appeal submission, and the attendance by a presenting officer at the second oral hearing of the appeal, submitted that an issue in the appeal which he might have considered to be dormant had now become live, his decision concerning attendance for the purpose of giving oral evidence might have been different.  Alternatively he might have considered exercising one of the other powers which were available to him, including the power to withdraw his appeal.

34.	It is important to note that the appellant did not attend any of the hearings in connection with this appeal, albeit through his own choice.  In these circumstances it was important for the appeal tribunal to ensure, through its issued terms of adjournment and further directions, that it provided an appropriate description of the appeal tribunal’s powers and the appellant’s options in light of those powers.

35.	Accordingly, and with some regret 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.

	The appellant’s other grounds for appealing to the Social Security Commissioner

36.	Having found that there was a procedural irregularity which was capable of making a material difference to the outcome or the fairness of the proceedings, 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

37.	The decision of the appeal tribunal dated 29 April 2008 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.

38.	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, and there may be further findings of fact which require to be made.  Further 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.

39.	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.

40.	The legal effect of my decision, in terms of entitlement to DLA is that the appellant remains entitled to the lowest rate of the care component of that benefit, from and including 14 June 2007.

41.	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 DLA remains to be determined by another appeal tribunal.  The newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal.

42.	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 14 June 2007, in which a decision-maker of the Department decided that grounds existed to supersede an earlier decision of the Department, dated 3 February 1994.  That earlier decision had awarded an entitlement to the higher rate of the mobility component and the middle rate of the care component of DLA from and including 30 December 1993.  The decision dated 14 June 2007 awarded an entitlement to the lowest rate of the care component of DLA from and including 14 June 2007;

(ii)	the legal effect of my decision is that the decision dated 14 June 2007 remains extant.  Accordingly, the appellant will wish to consider what was said at paragraph 77 of C16/08-09(DLA) concerning the powers available to the appeal tribunal and the appellant’s options in relation to those powers;

(iii)	from further correspondence received from the appellant, I understand that the Department may have made a further decision giving entitlement to the higher rate of the mobility component and the highest rate of the care component of DLA from and including 30 September 2009.  Further details of this award should be made available to the appeal tribunal to which the appeal is being referred.  The appeal tribunal is directed to take any evidence of subsequent claims and awards to DLA into account in line with the principles set out in C20/04-05(DLA);

(iv)	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

(v)	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

Commissioner

7 May 2010