EH-v-Department for Social Development (DLA) [2015] NICom 38
Decision No:  C4/15-16(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 27 May 2014

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is a claimant’s appeal from the decision of an appeal tribunal sitting at Derry.

2.	An oral hearing of the application has not been requested and I consider that the appeal can properly be determined without an oral hearing.

3.	For the reasons I give below, I disallow the appeal.

	REASONS

	Background

4.	The applicant claimed disability living allowance (DLA) from the Department for Social Development (the Department) from 17 September 2013 on the basis of needs arising from depression, alcohol abuse, spondylitis, a broken ankle, poor memory and concentration and behavioural problems.  The Department obtained a report from the applicant’s general practitioner (GP) on 13 December 2013.  On 6 January 2014 the Department decided on the basis of all the evidence that the applicant did not satisfy the conditions of entitlement to DLA from and including 17 September 2013.  The applicant appealed.

5.	The appeal was considered by a tribunal consisting of a legally qualified member (LQM), a medically qualified member and a disability qualified member.  After a hearing on 27 May 2014 the tribunal disallowed the appeal.  The applicant then requested a statement of reasons for the tribunal’s decision and this was issued on 21 August 2014.  The applicant applied to the LQM for leave to appeal from the decision of the appeal tribunal but leave to appeal was refused by a determination issued on 24 September 2014.  On 6 October 2014 the applicant applied to a Social Security Commissioner for leave to appeal.

	Grounds

6.	The appellant, represented by Mr O’Donnell of the Citizens Advice Bureau, submits that the tribunal has erred in law on the ground that the tribunal based its decision on the low rate mobility component solely on evidence relating to the applicant’s ability to walk out of doors on familiar – as opposed to unfamiliar – routes.

7.	The Department was invited to make observations on the applicant’s grounds.  Mr Hinton of Decision Making Services (DMS) responded on behalf of the Department.  Mr Hinton submitted that the tribunal had not erred in law as alleged and indicated that the Department did not support the application.

	The tribunal decision

8.	The appellant did not attend the tribunal hearing.  Therefore the evidence before the tribunal was entirely documentary and consisted of the DLA claim form received on 29 October 2013, a factual report from the appellant’s GP dated 13 December 2013, the appellant’s medical records and her letter of appeal.

9.	The tribunal considered the evidence before it and made particular reference to a report from a social worker at the Drugs and Alcohol Service dated 30 October 2012, “referring to anxiety in social gatherings but confirming that she is able to go shopping”.  The tribunal states that “we are asked specifically to look at low rate mobility; however, her own general practitioner does not allude to this and the general practitioner notes do not support the claim, particularly the above mentioned letter of 30 October 2012”.

	Assessment

10.	I consider that the applicant’s ground raises an arguable case that the tribunal has erred in law and therefore I grant leave to appeal.  With the consent of the parties, I treat the application for leave to appeal as an appeal, by virtue of regulation 11(2)(b) of the Social Security Commissioners (Procedure) Regulations (NI) 1999.

11.	For the appellant, Mr O’Donnell submits that the letter of 30 October 2012 referred to by the tribunal has no bearing on the qualifying conditions for the low rate mobility component of DLA as it does not refer to ability to cope in unfamiliar surroundings.  I consider that Mr O’Donnell makes a valid point.  However, there are limitations to the point he makes in a context where the appellant has not attended her appeal hearing to give evidence.

12.	I observe that, when completing her claim form, the appellant has ticked boxes to say that she needs guidance or supervision out of doors because she has anxiety and panic attacks and to make sure she is safe.  She elaborates on this simply by stating “I tend not to go out often and if I need to get to an appointment I would take a taxi”.  In the GP factual report, there is reference to low mood and self-isolation related to alcohol and low self-esteem, but no reference to anxiety or panic attacks.  The GP says that insight and awareness of danger is “poor when intoxicated”.  The tribunal indicates that the GP notes did not support the claim of low rate mobility and the representative, who has seen the medical records, makes no reference to any supportive material within them.

13.	Mr O’Donnell criticises the tribunal for basing its decision on evidence relating to the appellant’s ability to walk on what might be supposed to be a familiar route.  Although the reference to going shopping does not necessarily imply that the route is familiar, I accept for the present purposes that it is.  In the normal course of events, I would expect a tribunal to make further enquiry into the position on unfamiliar routes.  However, if an appellant does not attend a hearing, it cannot do that.

14.	It therefore has to look at the rest of the evidence before it.  The documentary evidence in the claim form suggests social isolation related to alcohol, but it does not support a finding that the appellant cannot walk on unfamiliar routes most of the time without guidance or supervision.  The tribunal reasonably found on the evidence that the appellant would be sober most of the time and that she would be safely mobile on any routes when alone.

15.	As was stated by Baroness Hale in Kerr v. Department for Social Development [2004] UKHL 23, at paragraphs 61-62, the process of benefits adjudication is inquisitorial rather than adversarial.  In determining entitlement to benefit, both the claimant and the Department must play their part.  The Department is the one which knows what questions it needs to ask and what information it needs to have in order to determine whether the conditions of entitlement have been met.  The claimant is the one who generally speaking can and must supply that information.  But where the information is available to the Department rather than to the claimant, then the Department must take the necessary steps to enable it to be traced.  Lord Hope in Kerr v. Department for Social Development has said at paragraph 15:

“in this situation there is no formal burden of proof on either side.  The process is essentially a fact-gathering exercise, conducted largely if not entirely on paper, to which both the claimant and the Department must contribute”.

16.	When a decision taken by the Department is appealed, the appeal tribunal stands in the shoes of the Department and has the power to consider any issue and make any decision the Department could have made (R(IB)2/04).  The principles set out by Lord Hope at paragraph 16 of Kerr v. Department for Social Development equally apply in the context of an appeal.  Thus, facts which may reasonably be supposed to be within the claimant’s own knowledge are for the claimant to supply at each stage of the appeal.

17.	The tribunal had no evidence before it which would enable it to make a reasonable finding that the appellant required guidance or supervision from another person in order to walk out of doors on unfamiliar routes.  It has considered the evidence before it, which has included the social worker report of 30 October 2012.  While this arguably deals with familiar routes, there is no other evidence before the tribunal on the issue of unfamiliar routes which would compel a contrary finding.  The appellant chose not to attend the appeal hearing and not to supply further evidence to the tribunal.  The tribunal has clearly had regard to the material which was before it.  I cannot fault the tribunal in basing its decision on the material before it, even where this is not comprehensive, in a context where the appellant has elected not to contribute to the fact-finding exercise.

18.	Therefore, I disallow the appeal.

(signed)  O Stockman

Commissioner

24 July 2015