ML-v-Department for Social Development (DLA) [2011] NICom 136
Decision No:  C83/10-11(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 12 August 2009

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	Having considered the circumstances of the case and any reasons put forward in the request for a hearing, I am satisfied that the application can properly be determined without a hearing.  I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.

2.	The decision of the appeal tribunal dated 12 August 2009 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.	It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of her entitlement to disability living allowance (DLA) 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

7.	On 10 March 2009 a decision-maker of the Department decided that the appellant did not satisfy the conditions of entitlement to DLA from and including 8 June 2009, on a renewal claim.  An appeal against the decision dated 10 March 2009 was received in the Department on 18 March 2009 although the letter of appeal had, subsequently, to be returned to the appellant for signature.

8.	The substantive appeal tribunal hearing took place on 12 August 2009.  The applicant was present, accompanied by a friend.  The Department was represented by a presenting officer.  The appeal tribunal disallowed the appeal and confirmed the decision dated 10 March 2009.  As will be noted below, there is an error in the decision notices for the appeal tribunal’s decisions.

9.	On 22 October 2009 an application for leave to appeal to the Social Security Commissioner was received in The Appeals Service.  On 30 October 2009 the application for leave to appeal was refused by the legally qualified panel member.

	Proceedings before the Social Security Commissioner

10.	On 2 December 2009 a further application for leave to appeal to the Social Security Commissioner was received in the Office of the Social Security Commissioners and Child Support Commissioners.

11.	On 22 January 2010 observations were sought from Decision Making Services (DMS) and these were received on 22 February 2010.  DMS opposed the application on all of the grounds submitted by the appellant.  Observations were shared with the appellant, and her representative, on 8 March 2010.  On 26 March 2010, observations in reply were received from the appellant’s representative.

12.	On 8 April 2010, the appellant’s representative was requested to supply certain evidence which had been before the appeal tribunal.  That evidence was supplied on 15 April 2010.  On 6 May 2010, the appellant’s representative was requested to take further action in connection with the evidence which the Commissioner wished to see.  Following an indication that she was making an application for an extension of the legal aid Green Form scheme in order to obtain the appellant’s general practitioner (GP) records, the appellant’s representative supplied those records on 14 September 2010, accompanied by a submission on specific issues relating to the records.

13.	The GP records and the accompanying submission were shared with DMS on 3 November 2010.  On 18 November 2010 a further submission was received from DMS.

	Errors of law

14.	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.

15.	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

16.	In the record of proceedings for the appeal tribunal hearing, the following is recorded:

	‘Chairman

	How did you fracture wrist.

	Appellant

	I fell in shower.

	Chairman

	Accident and Emergency says it is after ice skating.  Appellant asked to see entry.

…

	Appellant

	…

	I have told the consultants that I don’t always get a warning.  Put it to Appellant that General Practitioner notes record injury following ice skating.  I have not been ice skating since 4 years old.’

17.	In the written submission dated 14 September 2010, which accompanied the appellant’s GP records, the appellant’s representative submitted that:

‘At page 9 of the notes there is an entry that on 27 February 2009 (the claimant) contacted her GP re shoulder pain.  It states, “PT feel whilst ice skating 6 weeks ago pain over scapula now also radiating into arm and elbow no neurovasc compromise, OE tender to palpate over superior border of scapula, good rom and function pain on abduction past degrees and also on internal rotation.  Adv re nsaids and rv if not settling.”

Below this entry there is a further record of (the claimant) contacting her GP on 24 August 2009 about an elbow injury.  It states, “Seen in Mater A&E with an elbow injury following a fall after a seizure.  Fracture clinic advised that no fracture indentified.  Worsening pain swelling and onset of bruise around the elbow joint since Friday in elbow despite nsaid and tramadol.  ....”

And on 24 August 2009 there is a further entry of a telephone encounter, “Patient seen in A&E.  Advised that there were fractures present and advised pain relief collar and cuff which she has already.”

At the tribunal the record of proceedings shows that the tribunal asked (the claimant), “How did you fracture your wrist?” and she replied, “I fell in shower.”  The Chairman advised her that the A&E said that it was after ice skating and she asked to see the entry.

(The claimant) is correct that the entry showed that she sustained the fracture (to her elbow) following a fall after a seizure.  It is unclear whether the tribunal drew (the claimant’s) specific attention to the entry relating to 27 February 2009 or whether it just handed her the notes and let her examine the entry regarding her fracture.  It is understandably very confusing for (the claimant) that the tribunal gave weight to the fact that the fracture appeared to them to occur while she was ice skating.’

18.	In response to this submission, Mrs Hulbert for DMS has observed:

‘Having perused the GP notes and records I concur with the comments of Ms Carty in relation to their content.  A record dated 27 February 2009 states that (the claimant) fell 6 weeks previously whilst ice skating and has pain over her scapula which is now radiating into her arm and elbow.  A further note dated 24 August 2009 states that (the claimant) attended the Mater Hospital Accident and Emergency Department with an elbow injury following a fall after a seizure.  Within the records there is a document from the Mater Hospital which states that (the claimant) attended on 15 August 2009 with a fracture to the radial head as a result of a seizure.  I am assuming it is this incident that the record of 24 August 2009 refers to.

With regards to the Chairman’s comments that (the claimant) had fractured her wrist after an ice-skating incident there is nothing in the medical notes which would support this comment; the report from the Accident and Emergency Department stated the fracture occurred following a seizure.  In its reasons for decision the tribunal has accepted that (the claimant) does suffer from seizures however in light of the fact that there is nothing to suggest the manner in which (the claimant) fractured her wrist in August 2009 was resolved, there is a possibility the tribunal based its decision on incorrect evidence.  I would concur with Ms Carty’s comments and as there appears to have been discrepancies between the evidence, the onus was on the tribunal to ascertain what had occurred or if this was not possible to reject said evidence.  There is nothing to suggest the tribunal chose either of these options and in failing to do so has erred in law.’

19.	I am in agreement with the submissions of both parties to the proceedings concerning the manner in which the appeal tribunal dealt with the evidence concerning falls; the injuries resulting from those falls; the factual background to the falls which had taken place; and the manner in which the falls are recorded in the appellant’s GP records.  There was sufficient confusion surrounding these, and clear discrepancies in the evidence, which required resolution by the appeal tribunal.  The appeal tribunal’s failure to resolve those conflicts and discrepancies renders its decision as being in error of law.

	The record of the appeal tribunal’s decision in the decision notices

20.	In two decision notices, the appeal tribunal has recorded that the appellant is not entitled to either the care or the mobility component of DLA from and including 7 June 2009.  The latter evidence is mine.  The decision under appeal to the appeal tribunal was a decision of the Department in which it was decided that the appellant had no entitlement to DLA from and including 8 June 2009.  Any disallowance should, therefore, have been from the latter date.  Those errors in the decision notices, would not, however, have rendered the appeal tribunal’s decision as being in error of law.

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

21.	Having found that the decision of the appeal tribunal is in error of law on the basis of the analysis set out above, I do not have to consider the appellant’s other grounds for appealing.

	Disposal

22.	The decision of the appeal tribunal dated 12 August 2009 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.

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 10 March 2009, in which a decision-maker of the Department decided that the appellant did not satisfy the conditions of entitlement to DLA from and including 8 June 2009;

(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.  In this regard, the appellant’s representative will wish to seek clarification of certain entries in the appellant’s GP records, as noted in her submissions in connection with this application for leave to appeal to the Social Security Commissioner; 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 

Commissioner

10 January 2011