PMcG-v-Department for Social Development (DLA) [2012] NICom 276
Decision No:  C63/11-12(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 5 May 2010

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.  The decision of the appeal tribunal dated 5 May 2010 is not in error of law.  Accordingly, the decision of the appeal tribunal to the effect that the appellant is not entitled to either the care or the mobility component of disability living allowance (DLA), from and including 25 August 2009, is confirmed.

	Background

2.	On 10 November 2009 a decision-maker of the Department decided that the appellant was not entitled to either component of DLA from and including 25 August 2009, on foot of a renewal claim to that benefit.  On 30 November 2009 an appeal against the decision dated 10 November 2009 was received in the Department.

3.	An appeal tribunal hearing took place on 5 May 2010.  The appellant was present and was represented by Mr McCloskey of the Citizens Advice organisation.  There was no Departmental presenting officer present.  The appeal tribunal disallowed the appeal and confirmed the decision dated 10 November 2009.

4.	On 27 September 2010 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.  On 2 October 2010 the application for leave to appeal was refused by the legally qualified panel member.

Proceedings before the Social Security Commissioner

5.	On 21 October 2010 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 5 January 2011 observations were sought from Decision Making Services (DMS) and these were received on 27 January 2011.  In these written observations, Mr Kirk, for DMS, opposed the application on the grounds submitted on behalf of the appellant.  Written observations were shared with the appellant and her representative on 17 February 2011.  On 7 March 2011 written observations in reply were received from Mr McCloskey which were shared with Mr Kirk on 22 March 2011.

	Errors of law

6.	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.

7.	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?

8.	In the application for leave to appeal, Mr McCloskey has submitted that the decision of the appeal tribunal was in error of law on the basis of a number of submitted grounds.  I shall address each of these cited grounds in turn.

9.	To begin with, Mr McCloskey questions the appeal tribunal’s assessment of the evidence and its findings of fact with respect to the frequency with which the appellant suffered from episodes of binging/purging.  Mr McCloskey submitted that while the appeal tribunal found that the episodes were variable, the contrasting evidence concerning the nature and frequency of these episodes meant that the appeal tribunal had to be more rigorous in its assessment and arrive at specific conclusions concerning the average frequency at the date of claim and the needs resulting from each episode reasonably required to prevent or assist.

10.	The record of proceedings for the appeal tribunal hearing is comprehensive.  It sets out in considerable detail the oral and documentary evidence which it considered and the submissions which had been made.  In a similar way the statement of reasons for the appeal tribunal’s decisions with respect to both the care and mobility components of DLA have been prepared with commendable care and attention.  In my view, and contrary to the submission made by Mr McCloskey, the assessment of the evidence undertaken by the appeal tribunal satisfies the standards of rigour which I set out in my decision as a Social Security Commissioner in C8/08-09(DLA).  Read as a whole, the statement of reasons for the appeal tribunal’s decision provides a detailed explanation of the basis on which the appeal tribunal arrived at its conclusions on the issues before it and, more specifically, the question of the frequency of the appellant’s episodes of binging/purging, their effects and why the appeal tribunal concluded that the conditions of entitlement to the care component of DLA were not satisfied.

11.	I am also, and with respect to the submission which has been made, not satisfied that the appeal tribunal was obliged to consider the question of ‘frequency’ in the arithmetical manner suggested by Mr McCloskey.  In C40/10-11(DLA), I confirmed that the proper approach to section 72 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, was as set out in R(DLA) 5/05 and Moyna v Secretary of State for Work and Pensions [2003] UKHL 44, [2003] 1 WLR 1929, and involves, after consideration of the relevant period, taking a ‘broad’ or ‘common sense’ view.  In C40/10-11(DLA), I found that the conclusion of the appeal tribunal that the claimant did not require assistance from either or both of his parents on ‘most nights’ was redolent of the arithmetical approach which has been disapproved of in Moyna and R (DLA) 5/05.  By adopting such an approach, and not taking a ‘common sense’ approach, the appeal tribunal erred in law.  In the instant case, Mr McCloskey suggests that the appeal tribunal, faced with evidence of variability in frequency of episode, across ‘good’ and ‘bad’ days, was obliged to make specific findings on frequency as an average across the relevant period.  That is not, with respect, the proper approach to be adopted which is one of taking a ‘common sense’ view and considering whether the conditions of entitlement are satisfied across the relevant period.  Looking at the approach taken by the appeal tribunal in the instant case, I am satisfied that it has adopted the approach advocated in C40/10-11(DLA).

12.	In the application for leave to appeal, Mr McCloskey also challenges the appeal tribunal’s reasoning with respect to self-neglect.  Mr McCloskey submits that the appeal tribunal appeared to have linked references to self-neglect in evidence from the appellant’s general practitioner to problems with alcohol when the self-neglect issues was wider than that and included purging and binging.  Once again, and with respect to the submission which has been made, I have to reject it.  I cannot agree that the appeal tribunal formed a narrow view of the source or cause of the appellant’s problems.  As was noted above, the appeal tribunal undertook a rigorous assessment of all of the evidence which was before it.  It found conflicts and inconsistencies in the appellant’s own evidence which led the appeal tribunal to question the reliability of that evidence.  That was a conclusion which the appeal tribunal was entitled to reach and I find no error in the appeal tribunal’s reasoning on this cited ground.

13.	Mr McCloskey also submits that there was no evidence to support the appeal tribunal’s conclusions with respect to the appellant’s ability to control her problems with alcohol and bulimia.  Once again I have to reject this submitted ground.  In considering this particular issue, the appeal tribunal considered all of the evidence which was available to it, including the appellant’s own oral evidence to the appeal tribunal.  The appeal tribunal accepted that the appellant has had significant problems with alcohol, bulimia and depression but that the available evidence, including her own oral evidence, confirmed improvements in her medical conditions.  Further, the appeal tribunal accepted that the appellant would have ongoing problems.  Despite this, however, and after a very careful assessment, the appeal tribunal concluded that the appellant did not satisfy the conditions of entitlement to DLA.

14.	Finally, Mr McCloskey submitted that the appeal tribunal should have ‘…broken down the activities for which the claimant claimed to need attention.’  The decision of the Upper Tribunal Judge in CDLA/2060/2009 was cited in support of that submission.  It is my view that the reasons why Upper Tribunal Judge Lane in CDLA/2060/2009 found the decision of the First-tier Tribunal to be in error of law were wholly specific to the facts of that particular case.  The appellant in that case had hearing problems and the First-tier Tribunal found his hearing problems pervaded his life.  The First-tier Tribunal considered that it was not possible to quantify the assistance which the appellant required.  Upper Tribunal Judge Lane, at paragraph 3 of her decision concluded that ‘…  It was not enough in this case to say that the claimant’s problems were pervasive.’  The emphasis in this quotation is mine.  Upper Tribunal Judge Lane then went on to give guidance to appeal tribunals faced with the complex task of assessing needs arising from sensory loss.  It was in that context that she set out the comments quoted by Mr McCloskey.

Disposal

15.	The decision of the appeal tribunal dated 5 May 2010 is not in error of law.  Accordingly, the decision of the appeal tribunal to the effect that the appellant is not entitled to either the care or the mobility component of DLA, from and including 25 August 2009, is confirmed.

(signed):  K Mullan

Chief Commissioner

4 April 2012