JMcE-v-Department for Social Development (DLA) [2012] NICom 306

Decision No:  C62/11-12(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 7 April 2011

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 7 April 2011 is in error of law.  The error of law identified will be explained in more detail below.  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.

2.	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.  An appeal tribunal which has a medically qualified panel member is best placed to assess medical evidence and address medical issues arising in an appeal.  Further, there may be further findings of fact which require to be made and 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.

3.	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.

4.	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), for a particular period, 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

5.	On 17 May 2010 a decision-maker of the Department decided that the appellant should not have an entitlement to either component of DLA on the basis of a renewal claim to that benefit from and including 9 July 2010.  Following receipt of a telephone call disputing that decision, on 25 May 2010 the decision dated 17 May 2010 was reconsidered but was not changed.  On 17 June 2010 a letter of appeal was received in the Department.

6.	Following three earlier adjournments of the appeal, related, in the main, to the appellant’s admission to hospital, the substantive oral hearing of the appeal took place on 7 April 2011.  The appellant was not present and there was no Departmental presenting officer in attendance.  The appellant had indicated, in correspondence dated 23 March 2011 and received in TAS on 25 March 2011 that she did not wish to attend the oral hearing of her appeal.  The appeal tribunal disallowed the appeal and confirmed the decision dated 17 May 2010.

7.	On 14 July 2011 an application for leave to appeal to the Social Security was received in the Appeals Service from the appellant’s representative, now Ms Kyne from the Citizens Advice organisation.  On 3 August 2011 the application for leave to appeal was refused by the legally qualified panel member (LQPM).

	Proceedings before the Social Security Commissioner

8.	On 16 September 2011 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 26 October 2011 written observations on the application for leave to appeal were sought from Decision Making Services and these were received on 11 November 2011.  In these initial written observations, Mr Hinton, for DMS, opposed the application on all of the grounds cited by the appellant’s representative.  On 15 November 2011 written observations were shared with the appellant and her representative.  On 30 January 2012 the legal officer requested Mr Hinton to clarify the date of a report referred to in the statement of reasons for the appeal tribunal’s decision.  Further correspondence on this issue was received from Mr Hinton on 2 February 2012.

9.	On 3 April 2012 I granted leave to appeal.  In granting leave to appeal I gave, as a reason that an arguable issue arose as to how the appeal tribunal managed and assessed certain of the evidence which was before it.  I directed an oral hearing of the appeal which took place on 9 May 2012.  At the oral hearing, the appellant was represented by Mr Mitchell from the Citizens Advice organisation and the Department was represented by Mr Hinton.  Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions.

	Errors of law

10.	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.

11.	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.”

	Why was the decision of the appeal tribunal in the instant case in error of law?

12.	In the statement of reasons for the appeal tribunal’s decision with respect to the care component of DLA, the following is recorded, at paragraph 2(d):

‘(d) We do accept as factual the GP AT16 of 19.03.11 i.e.”Became acutely psychotic due to poor compliance with medication” (She was an in-patient at Holywell 21.07.10 – 07.01.11 and 10.01.11 – 22.02.11) but this is all after the date of decision.  (At 19.03.11 we note that she was enjoying moderate exercise but had a reduced ability to function socially but again this is 10 months after our date.’

13.	In AR v Department for Social Development (IB) (2010] NICom 06, C2/10-11(IB)), I said the following, at paragraphs 22 to 33:

‘22.	Article 13(8)(b) of the Social Security (NI) Order 1998 provides – 

‘(8) In deciding an appeal under this Article, an appeal tribunal – 

(a)……….

(b) shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.’

23.	Article 13(8)(b) exhorts appeal tribunals to concentrate on the decision under appeal, and, more particularly, the date of the decision under appeal.  The applicability of Article 13(8)(b) has to be considered, however, in the context of the social security appellate structure.  It is inevitable that the appeal tribunal hearing will take place at a date later to the date of the decision under appeal.  In the majority of cases, the date of the appeal tribunal hearing will be at least some months after the date of the decision under appeal and, in some rare instances, may take place at a date some years after the date of the decision under appeal.

24.	It is equally often the case that the appellant, or any representative whom the appellant might have and, in rare instances, the Department, as the other party to the proceedings, may also have, between the date of the decision under appeal and the date of the appeal tribunal hearing, sought to adduce further evidence considered to be relevant to the issues arising in the appeal.  Moreover, the appeal tribunal itself has the legislative power, under regulation 51(4) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, to adjourn an appeal tribunal of its own motion for the purpose, for example, of production of additional evidence.

25.	In oral hearings, where the appellant is in attendance, the appeal tribunal will also usually hear the oral evidence of the appellant given, therefore, at a time which post-dates the decision under appeal.

26.	In short, therefore, an appeal tribunal may find that there is before it evidence which post-dates the decision under appeal.  The question arises, therefore, as to how the appeal tribunal should deal with such evidence in light of the rule set out in Article 13(8)(b) of the Social Security (NI) Order 1998.

27.	In R(DLA) 2/01, Commissioner Jacobs considered how disability appeal tribunals (as they then were) should consider evidence which post-dated the decision under appeal, in light of a then extant rule in section 33(7) of the Social Security Administration Act 1992.  Section 33(7) provided that a disability appeal tribunal should ‘… not take into account any circumstances not obtaining at the time when the decision appealed against was made.’

28.	In R(DLA) 2/01, the date of the decision under appeal was 15 September 1998.  The appeal tribunal hearing took place on 18 February 1999, when the appeal tribunal had before it oral evidence from the appellant that he had had a serious operation in January 1999, and also had before it a letter from the appellant’s GP, dated 3 November 1998.  The statement of reasons for the appeal tribunal’s decision recorded, in two separate places, that ‘we hear’ the case on the basis of the evidence which was before the adjudication officer on 15 September 1998.

29.	At paragraph 9 of the decision, Commissioner Jacobs noted that:

‘… In the case of a claim for a Disability Living Allowance, the jurisdiction {of an Appeal Tribunal} is limited to the inclusive period from the date of claim to the date of the decision under appeal.  The only evidence that is relevant is evidence that relates to the period over which the tribunal has jurisdiction.  However it is the time to which the evidence relates that is significant, not the date when the evidence was written or given.  It does not limit the tribunal to the evidence that was before the officer who made the decision.  It does not limit the tribunal to evidence that was in existence at that date.  If evidence is written or given after the date of the decision under appeal, the tribunal must determine the time to which it relates.  If it relates to the relevant period, it is admissible.  If it relates to a later time it is not admissible.’

30.	In relation to the case before him, Commissioner Jacobs found that the appeal tribunal appeared wrongly to have limited itself to the evidence which was before the adjudication officer.  In relation to the evidence which post-dated the decision under appeal, and which was before the appeal tribunal, Commissioner Jacobs noted, at paragraph 11:

‘The claimant told the tribunal that his disablement at the time of the hearing was the same as that at the date of the adjudication officer’s decision.  The tribunal’s statement records that the claimant had had a serious operation on 8 January 1999 and was now recovering.  Although the statement does not say this in so many words, the implication is that although the claimant was recovering from his operation, he was nevertheless worse than he had been at the date of the adjudication officer’s decision.  That may have been correct.  However, that did not mean that by appropriate questioning the tribunal could not have obtained relevant evidence from the claimant as to his condition at the relevant time, perhaps by comparison with his condition at the date of the hearing.  The tribunal was not entitled to reject the claimant’s oral evidence on the ground that it was not before the adjudication officer.  The same point applies with greater force to the claimant’s evidence in his letter of appeal to the tribunal which was written about two weeks after the adjudication officer’s decision.  This evidence was also covered by the tribunal’s blanket rejection.’

31.	In R(DLA) 3/01, Commissioner Jacobs considered the effect of section 12(8)(b) of the Social Security Act 1998, the equivalent in Great Britain to Article 13(8)(b) of the Social Security (Northern Ireland) Order 1998, in light of his comments in R(DLA) 2/01.  At paragraph 58 he stated:

‘Section 12(8)(b) limits an appeal tribunal’s jurisdiction by preventing it taking into account a fresh circumstance.  It is only concerned with evidence in this respect: evidence is not admissible unless it relates to circumstances obtaining at the date of the decision under appeal.  I stand by the statement of law that I set out in [R(DLA) 2/01] para.9 …  In relating later evidence to the time of the decision, the claimant’s evidence is admissible, although it will, like all evidence, have to be weighed by the appeal tribunal.’

32.	The decisions in R(DLA) 2/01 and R(DLA) 3/01 were considered by Commissioner Brown in C24/03-04(DLA).  In that case, the Commissioner stated, at paragraphs 6 to 8:

‘6.	I shall deal first with the third ground of appeal.  The ground is based on the provisions of Article 13(8)(b) of the Social Security (Northern Ireland) Order 1998.  That provision is as follows: -

“In deciding an appeal under this Article, an appeal tribunal –

a)	…

b)	Shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.”

7.	This is a mandatory provision.  It prevents the Tribunal from taking account of circumstances not obtaining at the date of the decision under appeal.  It does not relate to evidence whenever it came into being, which is relevant to what the circumstances were up to the date of the relevant decision.  It does not prevent the Tribunal taking into account evidence obtained after the decision under appeal was made, for the purpose of drawing inferences as to the circumstances obtaining when or before the decision was made.  For example, if a claimant tells the Tribunal that his situation now is the same as it was at the date of the decision under appeal and produces evidence as to his present walking ability, why should that latter evidence if accepted not be used to determine the circumstances at the date of the claim?

The Tribunal in deciding the appeal must not take into account circumstances which did not obtain at the time of the decision under appeal.  However, it is entitled to take account of any evidence which indicates what those circumstances were.

In this connection I would refer in particular to decision CDLA/4734/99, a decision of Mr Commissioner Jacobs in Great Britain.  As Commissioner Jacobs stated at paragraph 57 of that decision: -

“There is a difference between a circumstance and evidence of that circumstance.”

At paragraph 58 he stated: -

“Section 12(8)(b) [the Great Britain equivalent to Article 13(8)(b)] limits an Appeal Tribunal’s jurisdiction by preventing it taking into account a fresh circumstance.  It is only concerned with evidence in this respect: evidence is not admissible unless it relates to circumstances obtaining at the date of the decision under appeal.  I stand by the statement of the law that I set out in CDLA/2934/1999, paragraph 9: -

“In the case of a claim for a Disability Living Allowance, the jurisdiction [of an Appeal Tribunal] is limited to the inclusive period from the date of claim to the date of the decision under appeal.  The effect is also to limit the evidence that is relevant to the appeal.  The only evidence that is relevant is evidence that relates to the period over which the tribunal has jurisdiction.  However, it is the time to which the evidence relates that is significant, not the date when the evidence was written or given.  It does not limit the tribunal to the evidence that was before the officer who made the decision.  It does not limit the tribunal to evidence that was in existence at that date.  If evidence is written or given after the date of the decision under appeal, the tribunal must determine the time to which it relates.  If it relates to the relevant period, it is admissible.  If it relates to a later time, it is not admissible.””

8.	I can put the matter no better than Mr Commissioner Jacobs did in the above extract with the caveat as regards the final sentence in relation to which I would add only this, that the evidence may relate to the period over which the Tribunal has jurisdiction even though it also relates to a later time so long as it sheds light on the circumstances obtaining at the date of the decision under appeal …’

33.	Although, the principles in the cases cited above were in the context of disability living allowance they are applicable, in my view, to how appeal tribunals in social security appeals should address the issue of consideration of evidence which post-dates the decision under appeal.’

14.	In applying those principles to the facts in AR, at paragraphs 40 to 46, I noted:

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

‘The Tribunal is only permitted to take into account the circumstances at the date of the decision viz 29.8.07 (see Article 13(8) of the Social Security (N.I.) Order 1998 …  He provided extracts from his General Practitioner’s notes most of which are dated after the decision was made and cannot be taken into account when deciding this appeal.’

41.	The appeal tribunal’s statement with respect to the effect of Article 13(8) of the Social Security (Northern Ireland) Order 1998 is correct although, more accurately, the reference should be to Article 13(8)(b).  The second statement which is dismissive of the appeal tribunal’s power to consider the evidence which post-dated the decision under appeal is less accurate however.

42.	It is clear from the statement that the appeal tribunal, in deciding the issues arising in the appeal, did not consider the additional evidence which the appellant had provided.  Although it is nowhere clearly stated, the appeal tribunal must have adopted the same approach to the further letter from the appellant’s GP, dated 29 January 2008, the date before the appeal tribunal hearing.

43.	In my view, the principles set out in R(DLA) 2/01 and R(DLA) 3/01 concerning reliance on evidence which post-dates the decision under appeal, are not satisfied in the instant case.  In my view, the appeal tribunal was not entitled to reject the evidence which post-dated the decision under appeal, in a peremptory fashion.  The appeal tribunal was under a duty to determine whether the post-dated evidence relates to the period under its consideration.  As was noted above, at paragraph 9 of R(DLA) 2/01, Commissioner Jacobs noted that:

‘… If evidence is written or given after the date of the decision under appeal, the tribunal must determine the time to which it relates.  If it relates to the relevant period, it is admissible.  If it relates to a later time it is not admissible.’

44.	In the instant case, I cannot see, from the statement of reasons for the appeal tribunal’s decision that the appeal tribunal had endeavoured to make findings concerning the relation of the evidence which post-dated the decision under appeal to the period under its consideration - that is the period up to the date of the decision under appeal.  In the written and oral submissions on this issue, DMS has submitted that it could be implied from the appeal tribunal’s reasoning that it had assessed the evidence which post-dated the decision under appeal and had concluded that it could not be related to the period under its consideration.  I am of the view that that conclusion cannot be derived from the appeal tribunal’s reasoning.  The manner in which the evidence is rejected within the statement of reasons suggests to me that its relevance was not even considered by the appeal tribunal.

45.	Although the physiotherapy evidence which the appeal tribunal supplied to the appeal tribunal post-dated the decision under appeal by a number of weeks, the fact that the referral to the physiotherapy department had been made during the period under consideration should, in my view, have led the appeal tribunal to consider whether the evidence was related.

46.	The failure of the appeal tribunal to make specific findings concerning the relation of specific evidence which it rejected, in arriving at its decision with respect to the issues arising in the appeal, to the period under its consideration did not accord with the principles set out in R(DLA) 2/01 and R(DLA) 3/01, as approved in C24/03-04(DLA).  Accordingly, the decision of the appeal tribunal is in error of law.’

15.	In the instant case, the appeal tribunal was correct to remind itself that it was constrained by Article 13(8)(b) of the Social Security (Northern Ireland) Order 1998 to consider the circumstances which obtained at the date of the decision under appeal.  As was noted above, the decision under appeal was a decision of the Department dated 17 May 2010 which disallowed entitlement to DLA from and including 9 July 2010.  As I stated in AR, however, that rule does not mean, however, that an appeal tribunal is entitled to reject evidence which post-dated the decision under appeal, in a peremptory fashion.  The appeal tribunal was under a duty to determine whether the post-dated evidence relates to the period under its consideration.  I repeat the words of Commissioner Jacobs, at paragraph 9 of his decision in R(DLA) 2/01:

‘… If evidence is written or given after the date of the decision under appeal, the tribunal must determine the time to which it relates.  If it relates to the relevant period, it is admissible.  If it relates to a later time it is not admissible.’

16.	In the instant case, the appeal tribunal appears to have decided that none of the evidence post-date the date of the decision under appeal could be considered.  While I agree that the evidence contained in the general practitioner factual report of 19 March 2011 post-dated the decision under appeal by some ten months, I find it surprising that the appeal tribunal took such a robust line in rejecting the evidence concerning the hospital admission which commenced on 21 July 2010.  This is for two reasons.  Firstly, while the hospital admission post-dated the decision under appeal by some two months it was not so distant from the decision under appeal to merit outright absolute rejection.  Secondly, and most importantly, the onward period of admission and detention in hospital from 21 July 2010 was for such a significant period, that is a further six months, that there must have been a fairly catastrophic deterioration in the appellant’s health to merit such a lengthy and intense period of in-patient treatment.

17.	It seems to me, moreover, that it is unlikely that such a deterioration occurred overnight but that it must have been gradual over a period of time.  That takes the evidence of hospital admission closer to the date of the decision under appeal and, in my view, sufficiently close that the appeal tribunal was obliged to make findings concerning the relation of the evidence which post-dated the decision under appeal to the period under its consideration.

18.	As in AR, therefore, I conclude that the failure of the appeal tribunal to make specific findings concerning the relation of specific evidence which it rejected, in arriving at its decision with respect to the issues arising in the appeal, to the period under its consideration did not accord with the principles set out in R(DLA) 2/01 and R(DLA) 3/01, as approved in C24/03-04(DLA).  Accordingly, the decision of the appeal tribunal is in error of law and must be set aside.

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

19.	In the application for leave to appeal, the appellant’s representative has submitted that the decision of the appeal tribunal was in error of law on the basis of the following submitted grounds:

	(i)	the appeal tribunal’s reasons are inadequate to explain why the appellant should not have an entitlement to the middle rate of the care component of DLA;

	(ii)	in light of the fact that the appellant had recently been an hospital in-patient, the appeal tribunal should have given consideration to adjournment for the purpose of directing further information from an appropriate healthcare professional;

	(iii)	as the decision under appeal was a decision of the Department made on a renewal claim to DLA, the appeal tribunal erred in law in not renewing the appellant’s previous award of entitlement to that benefit.

20.	I would note, at the outset, that I would not agree that the decision of the appeal tribunal was in error of law in respect of the submitted grounds at (i) and (iii) above.  In this regard, I agree with Mr Hinton’s written observations on the application for leave to appeal.

21.	In respect of the ground at (ii) above, I would not find that the appeal tribunal was in error of law in commencing the oral hearing of the appeal in the absence of the appellant.  As was noted above, the appellant had indicated, in correspondence dated 23 March 2011 and received in TAS on 25 March 2011 that she did not wish to attend the oral hearing of her appeal.  I have found, however, that the appeal tribunal was in error in failing to make specific findings concerning the relation of specific evidence which it rejected, in arriving at its decision with respect to the issues arising in the appeal, to the period under its consideration.  That task ‘might’, and I emphasise, ‘might’ have included consideration of the possibility of adducing further evidence, from whichever source, to draw clear conclusions and make specific findings between the appellant’s circumstances at the date of the decision under appeal and the date of her admission to hospital.  If any identified evidence was missing then an adjournment might have been considered to be appropriate.

	The further claim to benefit

22.	At the oral hearing of the appeal, Mr Mitchell indicated that the appellant had made a further claim to DLA and had been awarded an entitlement to the lower rate of the mobility component and the middle rate of the care component from a date which he thought to be 29 June 2011.  Mr Hinton agreed to clarify the position with respect to this further claim and award.  In further e-mail correspondence, Mr Hinton has confirmed that the appellant was awarded an entitlement to the lower rate of the mobility component and the middle rate of the care component from and including 24 June 2011.

	Disposal

23.	The decision of the appeal tribunal dated 7 April 2011 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.

24.	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 17 May 2010, which decided that the applicant was not entitled to DLA from and including 9 July 2010;

	(ii)	as there has been a subsequent award of entitlement to DLA, based on a further claim, such award being effective from and including 24 June 2011, the jurisdiction of the appeal tribunal is limited to the period from 9 July 2010 to 23 June 2011;

	(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.

	(iv)	the Department is directed, however, to provide a further submission which, in addition to addressing the substantive issues of entitlement to DLA, also addresses the effect of the appellant’s period of admission as an in-patient has on payability of DLA should any entitlement be established.

	(v)	the appellant and any representative of the appellant may wish to make a submission to the appeal tribunal, and adduce further evidence in connection with that submission, in connection with her admission to hospital on 21 July 2010.  The appeal tribunal should consider any evidence which post-dates the decision under appeal in line with the principles set out in R(DLA) 2/01, R(DLA) 3/01 (DLA), C24/03-04(DLA) and AR-v-Department for Social Development (IB) [2010] NICom06 (C2/10-11(IB)).

	(vi)	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

Chief Commissioner

18 July 2012