Northern Ireland - Social Security and Child Support Commissioners' Decisions

MM-v-Department for Social Development (DLA) [2013] NICom 71

 

Decision No:  C12/13-14(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 14 December 2011

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.     This is the claimant’s application for leave to appeal from the decision of an appeal tribunal sitting at Downpatrick on 14 December 2011.

 

2.     I held an oral hearing of the application.  I granted leave to appeal and with the consent of the parties I proceeded to treat and determine the application as if it were an appeal.

 

3.     For the reasons given below, I allow the appeal and set aside the decision of the appeal tribunal.  Under Article 15(8)(b) of the Social Security (NI) Order 1998 I direct that the appeal shall be re-determined by a newly constituted tribunal.

 

REASONS

 

         Background

 

4.     The applicant claimed disability living allowance (DLA) from the Department for Social Development (the Department).  She was awarded DLA at the high rate of the mobility component and the middle rate of the care component from 13 September 2002 for an indefinite period.  In 2011 a periodic enquiry form was sent to the applicant by the Department.  The Department obtained a factual report from her general practitioner and obtained a report from an examining medical practitioner (EMP).  On 22 April 2011, on the basis of the evidence before it, the Department superseded and removed the applicant’s award of DLA.  She appealed.

 

5.     An appeal tribunal consisting of a legally qualified member (LQM), medically qualified member and a disability qualified member disallowed the appeal by a majority.  The applicant requested a statement of reasons for the decision, which was issued on 21 May 2012.  On 25 June 2012 the applicant made a late application for leave to appeal to the Social Security Commissioner.  The LQM permitted the application to be admitted late, but on 15 August 2012 refused leave to appeal.  On 14 September 2012 the applicant submitted an application for leave to appeal to a Social Security Commissioner.

 

         Grounds

 

6.     The applicant submits that the tribunal has erred in law as:

 

         (i)      Grounds for supersession were not established by the tribunal in the form of evidence of relevant change of circumstances, as original documentation relating to the original DLA award was no longer available.

 

7.     The Department was invited to make observations on the grounds of application.  Mr Kirk responded for the Department.  He submitted that the tribunal had not erred in law and indicated that the Department did not support the application.

 

8.     Subsequently, prior to the hearing before me, the documents relating to the applicant’s claim for DLA were located by the Department.  These consisted of the DLA claim form completed on 21 October 2002, a factual report from the applicant’s general practitioner dated 7 November 2002, two hospital letters from 1998 and 1999, an EMP report dated 29 April 2003 and the Department’s decision giving reasons for the original award.

 

         The tribunal’s decision

 

9.     The tribunal records that the original documentation was not available to it.  In identifying grounds for supersession, the tribunal indicated that there was an up-to-date report from an EMP and that the findings of such a report could amount to evidence of an actual change of circumstances to justify supersession on the basis of an improvement in the present condition since the original award.  The minority took the view that as the original claim papers and evidence were not available to the tribunal, there was no basis to compare the present circumstances of the applicant with the past circumstances and therefore to assess whether there had been any relevant change in circumstances.

 

Hearing and Assessment

 

10.   At the hearing of the application, the applicant was represented by Mr McGregor of Down District Citizens Advice Bureau.  The Department was represented by Mr Kirk and Mr Gorman of Decision Making Services.

 

11.   Mr McGregor submitted that the tribunal had violated the applicant’s right to a fair hearing under Article 6 of the European Convention on Human Rights and Fundamental Freedoms (ECHR).  He submitted that the tribunal did not properly identify grounds for supersession of the original award and could not have established that there had been a change of circumstances in the absence of the original claim papers.

 

12.   Mr Gorman submitted that there had been no violation of Article 6 ECHR on the facts at the date of hearing.  He submitted that the hearing had been fair, led to a reasoned decision, that the applicant was able to attend the hearing and that there was no inequality of arms in the proceedings.

 

13.   Mr Kirk submitted that in the absence of the original claim papers, it was open to the tribunal to infer that a relevant change of circumstances had occurred on the basis of all the evidence.  Alternatively, if the applicant’s situation had not changed, it would have been irrational for a decision-maker to award DLA at the rates awarded on the current evidence, and therefore the tribunal was entitled to supersede on the basis of error of law.  He referred me to CDLA/3875/2001 and CSDLA/251/2007 in support of his case.

 

14.   I observed that the fact that the papers were now available suggested that a ground for setting aside a tribunal decision under regulation 57(1)(a) of the Social Security and Child Support (Decisions and Appeals) Regulations (NI) 1999 was established.  Namely, a document relating to the proceedings was not received at an appropriate time by the person who made the decision. Each of the parties suggested that the particular case involved an element of unfairness which would have enabled an LQM to set aside the tribunal decision on this ground in the interest of justice.

 

15.   I do not have the same power to set aside as an LQM.  However, as Chief Commissioner Martin in C5/05-06(IB) said, in certain cases of unfairness the Commissioner and the LQM have a concurrent jurisdiction.  It appears to me that the tribunal proceedings, which were conducted in the absence of the documents held by the Department and which are now located, are tainted by an element of unfairness.

 

16.   It is not necessary for me to decide the issue of whether the tribunal had valid grounds for supersession, and such an exercise would be entirely sterile in view of the fact that the previous claim papers are now available.

 

17.   I find that the tribunal’s proceedings, whereby it determined the appeal without sight of the papers now available, and in the absence of any fault by the tribunal, were in breach of the rules of natural justice.

 

18.   For this reason, I set aside the decision of the appeal tribunal and remit the appeal for re-determination by a newly constituted tribunal.

 

 

(signed):  O Stockman

 

Commissioner

 

 

 

26 November 2013