ADR-v-Department for Social Development (DLA) [2013] NICom 37
Decision No:  C3/13-14(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 12 March 2012

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application for leave to appeal from the decision of an appeal tribunal sitting at Belfast on 12 March 2012.

2.	An oral hearing of the application has been requested.  Nevertheless, having regard to the nature of the applicant’s submissions, I consider that the proceedings can properly be determined without a hearing.

3.	I grant leave to appeal.  However, for the reasons given below I disallow the appeal. 

	REASONS

	Background

4.	The applicant had suffered extensive injuries in a motorcycle accident in 2007, leading to a right brachial plexus injury, a fracture dislocation of the left hip with secondary osteoarthritis, internal fixation of cervical spine fractures, multiple metacarpal fractures in the left hand and injury to the base of the right thumb.  He had previously been awarded disability living allowance (DLA) by the Department for Social Development (the Department).  This was awarded at the high rate of the mobility component and the low rate of the care component from 17 November 2007 to 16 November 2009.  Following a renewal claim, however, the award was reduced to the low rate of the care component from 17 November 2009 to 16 November 2011 by a decision dated 20 August 2009.  The applicant appealed.

5.	The original appeal proceeded in the applicant’s absence on 3 February 2010.  However, for an error of law relating to procedural fairness, the Chief Commissioner set aside the decision of the appeal tribunal in his decision on file C9/11-12(DLA).  The appeal was reheard by a differently constituted tribunal on 12 March 2012, with the appellant present on this occasion.

6.	Nevertheless, the new tribunal also disallowed the appeal, with the result that the applicant’s award remained one of low rate care component from 17 November 2009 to 16 November 2011.  He requested a statement of reasons for the tribunal’s decision, which was issued on 8 May 2012.  On 7 June 2012 he applied to the legally qualified member of the tribunal for leave to appeal to the Social Security Commissioner.  This was refused in a determination issued on 26 June 2012.  On 4 July 2012 the applicant made an application to a Social Security Commissioner for leave to appeal.

	Submissions

7.	The applicant’s grounds are that:

(i)	the tribunal judged him on his condition on the day rather than during the period in issue;

(ii)	the tribunal only relied on material in the medical records which was detrimental to his case;

(iii)	the medical records did not reflect his condition accurately.

8.	On 12 September 2012 the Department was invited to make observations on the grounds of application.  Mr Donnelly responded for the Department.  He submitted that the tribunal had not erred in law and did not support the application.

	Assessment

9.	I do not consider that the applicant’s second two grounds are arguable.

10.	The applicant, in his second ground, submits that the tribunal was selective in relying on aspects of the medical evidence unfavourable to his claim.  However, the tribunal considered all the evidence before it.  The tribunal found against the applicant.  When explaining its reasons for doing so, it is only to be expected that it refers to the evidence which does not support the applicant’s case.

11.	The applicant in his third ground submits that his medical records did not reflect his condition accurately.  The applicant was present at the tribunal and given access to his medical records, with the opportunity to highlight any aspects of the medical records to the tribunal which he felt might assist the case he was making on appeal.  The tribunal has to determine an appeal on the evidence before it.  If he felt that the medical records did not reflect his condition accurately, it was for the applicant to convince the tribunal at hearing that his medical records were not accurate.  He did not do so.

12.	I refuse leave on those two grounds.

13.	In his first ground, the applicant submits that the tribunal erred by considering his condition on the day of the hearing rather than at the relevant period under appeal.  It is clear that the tribunal addressed certain matters arising from the applicant’s observed appearance at the date of hearing.  For example, he was observed to have dirt under his fingernails and dirty palms.  He was asked about the condition of his hands and explained that he had been power hosing the front of his house the day before.  He indicated that he had also been doing some carpentry.  The tribunal did not rely on these answers in assessing the applicant’s level of disability however.  Nor can any criticism attach to the tribunal for putting its observations to the applicant for comment.

14.	It is evident from the decision of the tribunal that it considered a range of evidence including the oral evidence of the applicant and medical records.  The entries relied upon by the tribunal were mainly centred around the period before the renewal claim in 2009.  Therefore, I do not accept that the tribunal confined itself to a consideration of the applicant’s condition at the date of hearing, as alleged by the applicant.

15.	However, I do consider that the tribunal did not entirely confine its consideration to evidence relating to the relevant period before it.

16.	The tribunal was considering an appeal from a decision on a renewal claim made on 20 August 2009.  The renewal claim was made in anticipation of the expiry of an existing award on 16 November 2009.  The question for the tribunal was whether the conditions of entitlement continued to be met on the relevant date for renewal – here 17 November 2009.  In reaching its conclusions it is clear that the tribunal was influenced by an examining medical practitioner (EMP) report which post-dated the decision under appeal by more than two years – being dated 22 November 2011.  This assessed the applicant’s likely walking distance at some 200m and described mild pain and mild functional loss.  The tribunal took this report into account, qualified by the expression “albeit much later than the period under consideration”.

17.	In setting aside the decision of the appeal tribunal in C9/11-12(DLA) dated 26 July 2011 the Chief Commissioner had given directions to the new tribunal responsible for re-hearing the appeal at paragraph 29 of his decision, including at sub-paragraph (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)”.

18.	The tribunal’s statement of reasons for its decision includes the paragraph, “The Department confirmed by way of a further submission dated 25 October 2011 that the appellant had submitted a renewal claim to DLA on 11 August 2011 and provided a copy of the report dated 22 November 2011 of the Examining Medical Practitioner.  This evidence of the subsequent claim to DLA was considered by the tribunal as directed by the Chief Commissioner in his decision dated 26 July 2011”.

19.	Regrettably, I consider that the tribunal may have misunderstood the Chief Commissioner’s direction in the particular case.  His direction refers in turn to an earlier decision of Commissioner Brown in C20/04-05(DLA).  That decision concerns the jurisdiction of tribunals in terms of the period which they must consider when there has been a fresh claim for DLA since the decision under appeal was made.  At paragraph 12, Commissioner Brown holds that the tribunal’s jurisdiction stops on the day before a new award comes into effect.  I believe that by his direction, Chief Commissioner Mullan was simply pointing out to the new tribunal that it would need to confirm whether there was evidence of any fresh claim by the applicant in order to ascertain the precise period for which it had jurisdiction.  However, the statement of reasons leads me to believe that the tribunal understood that it was directed to take the evidence on the fresh claim into account, including the EMP report of 22 November 2011.  This is not the correct interpretation of the Chief Commissioner’s direction.

20.	I consider that the tribunal has erred in law by taking into account the evidence of the EMP report, since it was clearly based on a clinical examination which took place more than two years after the date of the decision under appeal.  It was also after the two-year period over which the tribunal had jurisdiction.  Simply because a report is based on an examination which post-dates a decision, that does not mean that it might not have relevance to the appeal.  For example, if a claimant’s condition has not changed in the intervening period, the report should accurately reflect mobility restrictions or care needs which were present at the date the decision was made.  If that was behind the tribunal’s thinking, it needed to say so.  However, the tribunal did not expressly indicate that it considered that the applicant’s circumstances had not changed between the date of decision and the date of the EMP report.  It therefore leaves open the criticism that it has wrongly had regard to post-decision evidence.

21.	Article 13(8)(b) of the Social Security (NI) Order 1998 precluded the tribunal from having regard to circumstances not obtaining at the date of the original decision - namely 20 August 2009.  The evidence of the report dated 22 November 2011 was taken into account by it.  It is therefore arguable that the tribunal has erred in law and I grant leave to appeal.  As the tribunal has based its decision - at least in part - on the evidence of the EMP’s 200m estimate of the applicant’s walking ability I find that it has erred in law.

22.	In order to assess whether this was a material error - in the sense that it would have affected the outcome of the appeal - I need to look more closely at the evidence before the tribunal.

23.	The evidence shows that the applicant had undergone a hip replacement in April 2009.  Following this operation he indicated that he had no hip pain but was troubled by right knee pain.  The general practitioner (GP) report of July 2009 indicated that he walked with a left-sided limp, while indicating no other restriction on the applicant’s ability to get around.  The applicant said that his main problem walking came from his right knee, from left foot callouses and muscle spasms.  He said that his condition had deteriorated recently.  He habitually used a stick as a walking aid to help maintain balance and stability.  He estimated his walking distance as 50 metres in his claim form in May 2009, which was shortly after his hip replacement.  Referring expressly to CDLA/4388/99, the tribunal nevertheless found that he was not virtually unable to walk.  On the basis of all the evidence, removing the EMP report from consideration, the tribunal would have been entitled to find as it did in relation to the high rate of the mobility component.  Furthermore, in relation to the low rate mobility component, there was no evidence of a mental disablement which would explain the applicants claimed symptoms of anxiety and panic attacks or of any treatment for such a mental disablement.

24.	Similarly in addressing the care component, the tribunal addressed the limitations arising from all of the applicant’s injuries, including in particular those to his shoulder and right arm.  The tribunal relied on the GP report of July 2009 which indicated that he should be able to manage personal care, though with some discomfort.  X-rays in May 2009 indicated mild and moderate degenerative change in joints.  A July 2009 report indicated moderate symptoms.  The tribunal considered that the applicant’s own evidence of arm and hand restrictions was overstated in the light of the contemporary reports.  Nevertheless, the tribunal maintained the award in relation to difficulties preparing a main cooked meal.  Therefore, without taking into account the EMP report of November 2011, the tribunal had sufficient evidence on which to base its conclusions.

25.	Therefore, although the tribunal has partly based its decision on evidence which it was precluded from considering, I find that this has not materially affected the outcome of the appeal.

26.	For those reasons, I disallow the appeal.

(signed):  O Stockman

Commissioner

29 May 2013