Northern Ireland - Social Security and Child Support Commissioners' Decisions

PMcK-v-Department for Social Development (DLA) [2014] NICom 3

Decision No:  C18/13-14(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 June 2012

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.     This is a claimant’s application for leave to appeal from the decision of an appeal tribunal sitting at Newtownards on 12 June 2012.

 

2.     I grant leave to appeal.  For the reasons given, I allow the appeal.  Under Article 15(8)(b) of the Social Security Order (NI) 1998 I set aside the decision of the appeal tribunal and I remit the proceedings to a newly constituted tribunal.

 

         REASONS

 

         Background

 

3.     The applicant was awarded disability living allowance (DLA) by the Department for Social Development (the Department) in successive claims from 8 March 1993 to 7 March 1994 and from 8 March 1994 to 7 March 1995 at the low rate of the care component.  Following a review, he was awarded at the high rate of the mobility component and the middle rate of the care component from 20 July 1994 for an indefinite period, on the basis of needs arising from asthma and high blood pressure.  By a supersession decision of 22 July 2005, he was awarded the high rate of the mobility component only from and including 22 July 2005.

 

4.     On 7 July 2011 the applicant was issued with a periodic enquiry form by the Department.  It would appear that he returned the form on 28 July 2011.  He was subsequently examined on behalf of the Department by an examining medical practitioner (EMP).  On the basis of the EMP report the Department superseded the applicant’s award of DLA and disallowed his claim from and including 3 November 2011.  He appealed, but indicated that he did not wish to have an oral hearing of his appeal.

 

5.     A tribunal consisting of a legally qualified member (LQM), a medically qualified member and a disability qualified member heard and disallowed the appeal.  The applicant requested a statement of reasons for the tribunal’s decision.  This was issued on 31 October 2012. On 26 November 2012 the applicant sought leave to appeal to the Social Security Commissioner from the LQM, but leave to appeal was refused by a determination issued on 11 January 2013.  On 4 February 2013, the applicant made 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)        it acknowledged that he had troublesome health conditions but he did not understand how it reached its decision;

 

(ii)       his medical records were not properly considered by the tribunal.

 

7.     The Department was invited to make observations on the applicant’s grounds.  Mr Hinton responded on behalf of the Department.  He submitted that the tribunal’s decision was not erroneous in point of law and indicated that the Department opposed the application.

 

         The tribunal’s decision

 

8.     As indicated, the applicant did not attend the hearing of his appeal before the tribunal.  The tribunal considered the documentary evidence before it, including the applicant’s medical records.  On the basis of the evidence in the EMP report, the tribunal identified grounds for superseding the previous award.  Again on the basis of the EMP report the tribunal found that the applicant was not virtually unable to walk, and did not have a reasonable requirement for attention or supervision day or night.  The tribunal did not make an express finding on the main meal test, but it is implicit that the tribunal found that the EMP findings did not justify an award of care component based on the main meal test.

 

         Assessment

 

9.     An appeal lies to a Commissioner from any decision of an appeal tribunal on the ground that the decision of the tribunal was erroneous in point of law.  However, the party who wishes to bring an appeal must first obtain leave to appeal.

 

10.   Leave to appeal is a filter mechanism.  It ensures that only applicants who establish an arguable case that the appeal tribunal has erred in law can appeal to the Commissioner.

 

11.   An error of law might be that the appeal tribunal has misinterpreted the law and wrongly applied the law to the facts of the individual case, or that the appeal tribunal has acted in a way which is procedurally unfair, or that the appeal tribunal has made a decision on all the evidence which no reasonable appeal tribunal could reach.

 

12.   The applicant submits that the tribunal’s reasons are inadequate to explain the decision.  However, the tribunal’s statement of reasons is perfectly clear.

 

13.   The applicant further submits that his medical records were not properly considered by the tribunal.  The tribunal records that these describe the applicant’s chronic obstructive pulmonary disease as “mild” with peak flow measured at 300 litres per minute on 13 September 2011.  The tribunal further notes that the records indicate that on 25 July 2011 the applicant’s breathing difficulties had been classed under the MRC breathlessness scale as grade 2.  On the same day his inhaler technique was described as sub-optimal.  In relation to a fracture of the right wrist, the tribunal recorded that a physiotherapy report of 10 August 2010 had reported that “pain is well settled and functional use is good”.

 

14.   The applicant submits that the medical records were not properly considered on the basis that the peak flow decision was flawed and it was not true that he had poor inhaler technique.  He submitted that the tribunal had not checked his chest clinic records and his hospital records concerning his wrist.  I see nothing in the applicant’s grounds which would place a question over the accuracy of the content of the medical records before the tribunal.

 

15.   A further issue arose in the particular application, as it became clear to me from considering the papers that the periodic enquiry form (DLA3000(Rev)) completed by the applicant on 22 July 2011 was not before the tribunal.  I asked for submissions from the Department on this issue.  Mr Hinton replied for the Department.  He acknowledged that the appeal papers did not include the DLA3000(Rev) form.  He accepted that there would be a legitimate expectation on the part of the applicant that this would be before the tribunal.  While accepting that an error of law arose thereby, he submitted that it was not material such as to vitiate the tribunal’s decision.  This was because it based its decision on an EMP report which included matters such as the applicant’s description of a typical day and how he coped with aspects of personal care.  He submits that the tribunal was entitled to base its decision on the EMP report and that the DLA3000 (Rev) would not have impacted on the tribunal decision even if it had been before it.

 

16.   I grant leave to appeal in these circumstances, and I proceed to treat and determine the application as an appeal.

 

17.   The principle of legitimate expectation derives from the requirement of procedural fairness.  It is the practice of the Department to prepare submission bundles for the tribunal which include all the documents relevant to the appeal.  In the particular case the tribunal was addressing itself to an appeal concerning the supersession of a previous indefinite award, and it would have been legitimate for the applicant to expect that the DLA3000(Rev) completed by him on 22 July 2011, would have been before the tribunal.  It is correct, as Mr Hinton submits, that the EMP report does contain the EMP’s record of the applicant’s statements at examination.  However, this was an indirect record of his statements and not comprehensive of the needs he identified in the DLA3000(Rev).

 

18.   Committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of the proceedings would amount to an error of law (R(Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982).  The question before me is whether the tribunal, by deciding the appeal despite the omission of the DLA3000(Rev) from the tribunal papers, has permitted a procedural irregularity capable of making a material difference to the outcome or the fairness of the proceedings.  Mr Hinton has submitted that even if the DLA3000(Rev) had been before the tribunal, this would have made no difference to the outcome.  This is because the tribunal relied on the EMP’s evidence, which included aspects of the applicant’s evidence.

 

19.   I accept that Mr Hinton has a point, in the sense that many of the issues identified by the applicant in the DLA3000(Rev) were communicated to the EMP.  However, even if such an omission has not made a material difference to the outcome of the proceedings, I consider that it has made a difference to the fairness of the proceedings.

 

20.   In C18/02-03(IB) former Chief Commissioner Martin considered a case where an IB50 self-assessment questionnaire and an IB85 medical report were missing from tribunal papers in an appeal which proceeded by way of a “paper” hearing.  He found that by proceeding without at least offering the appellant a chance to complete a new questionnaire, notwithstanding that she did not request an oral hearing, the tribunal breached the rules of natural justice.  It had failed to give the appellant a fair opportunity to give evidence in support of her case.  He held that in the absence of the self-assessment questionnaire, the applicant should also have been given the opportunity to attend a hearing to give evidence.

 

21.   In the present case the proceedings were similarly by way of a “paper” hearing where the applicant had waived his right to give oral evidence.  However, the DLA3000(Rev), wherein he set out his evidence of mobility and care needs in writing was missing.  The only “voice” speaking for the applicant was the EMP’s report of what he said at examination, which was not as comprehensive as the self-assessment questionnaire.  He was entitled to expect that his written evidence in the DLA3000(Rev) should have been before the tribunal.

 

22.   It appears to me that Chief Commissioner Martin’s approach was correct and can apply in the present case.  The tribunal should have at least adjourned to give the applicant an opportunity to attend a hearing, or have requested the Department to issue a new DLA3000(Rev) to him.  In the circumstances of this case, I consider that the tribunal has erred in law by proceeding to consider the paper appeal in the absence of the DLA3000(Rev).  In the terms set out in R(Iran), there was a procedural irregularity capable of making a material difference to the outcome or the fairness of the proceedings.  Therefore, I set aside the decision of the appeal tribunal.

 

23.   The missing document has now been located.  I direct a rehearing of the appeal by a newly constituted tribunal with the DLA3000(Rev) among the papers.  In the circumstances, I further direct that the applicant should be reissued with a Reg2(i)(d) form to enquire whether he would want an oral hearing of the new appeal.  As is often said in such cases, the applicant should be aware that his success in the proceedings before me does not suggest any particular outcome in the proceedings before the new tribunal.

 

 

(signed)  O Stockman

 

Commissioner

 

 

 

3 February 2014