TMcG-v-Department for Communities (DLA) [2016] NICom 75

Decision No:  C11/16-17(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 25 June 2015

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 25 June 2015 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 his entitlement to disability living allowance (DLA) 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 31 August 2013 a decision-maker of the Department decided that the appellant was entitled to the lowest rate of the care component of DLA from and including 5 July 2013.  On 6 February 2014 an appeal tribunal disallowed an appeal against the decision dated 31 August 2013.

6.	Following a request for a review of his entitlement to the lowest rate of the care component of DLA, on 18 December 2014 another decision maker of the Department decided not to supersede the decision dated 31 August 2013.  Accordingly, the appellant remained entitled to the lowest rate of the care component of DLA from and including 5 July 2013. 

7.	Following a request to that effect the decision dated 18 December 2014 was reconsidered on 4 February 2015 but was not changed.  An appeal against the decision dated 18 December 2014 was received in the Department on 12 February 2015.

8.	The appeal tribunal hearing took place on 25 June 2015. The appellant was present, was accompanied by his daughter-in-law and was represented by Mr Ferris.  There was a Departmental Presenting Officer present.  The appeal tribunal disallowed the appeal and issued two decision notices to the following effect:

‘That (the appellant) does not satisfy the requirements of either element of the mobility component of disability living allowance as from 5.7.13.  The decision of the Department of 18.12.14 was correct and the appeal does not succeed.’

‘That (the appellant) does not satisfy the requirements of any element of the care component of disability living allowance as from 5.7.13.  The decision of the Department of 18.12.14 was incorrect and the appeal does not succeed.’

9.	The form and content of the two decision notices and their significance in terms of the appeal tribunal’s approach to the issues arising in the appeal will be explored in greater detail below.

10.	On 13 November 2015 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS).  On 30 November 2015 the application for leave to appeal was refused by the Legally Qualified Panel Member (LQPM). 

	Proceedings before the Social Security Commissioner

11.	On 6 January 2016 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 21 January 2016 observations on the application for leave to appeal were sought from Decision Making Services (DMS).  In written observations received on 12 February 2016, Mr Donnelly, for DMS, opposed the application on the grounds advanced on behalf of the appellant but supported the application on another identified ground.  Written observations were shared with the appellant and Mr Ferris on 12 February 2016.

12.	On 21 June 2016 I accepted the late application for special reasons. On 2 August 2016 I granted leave to appeal.  In granting leave to appeal I gave, as a reason that an arguable issue arose as to whether the appeal tribunal had followed the principles set out in C15/08-09 (DLA) and addressed relevant decision-making questions.  On the same date I directed that an oral hearing of the appeal would not be required. 

	Errors of law

13.	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.  What is an error of law?

14.	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.” 

	Analysis  

15.	As was noted above, the decision-making process giving rise to the appeal was as follows.

		(i) On 31 August 2013 a decision maker of the Department decided that the appellant was entitled to the lowest rate of the care component of DLA from and including 5 July 2013. 

		(ii) On 6 February 2014 an appeal tribunal disallowed an appeal against the decision dated 31 August 2013.

		(iii) On 11 September 2014 a request for a review of his entitlement to the lowest rate of the care component of DLA was received in the Department.  

		(iv) On 18 December 2014 another decision maker of the Department decided not to supersede the decision dated 31 August 2013.  Accordingly, the appellant remained entitled to the lowest rate of the care component of DLA from and including 5 July 2013.

		(v) An appeal against the decision dated 18 December 2014 was received in the Department on 12 February 2015.

16.	In making the request for the review of the decision dated 31 August 2013 the appellant was clearly submitting that there had been a change in the level and degree of the assistance which he required in connection with his bodily functions and a requirement for assistance in respect of his mobility.  The contents of the review form which was attached to the appeal submission as Tab No 11 are unequivocal in that regard. 

17.	More significantly, however, the appellant, in submitting the relevant review form, was, in law, making an application for a supersession of the decision dated 31 August 2013.  Having reviewed the available evidence, which included the review form, in itself including additional evidence from the appellant’s General Practitioner (GP), further supporting evidence from a counselling organisation, and a report of an examination conducted by an Examining Medical Practitioner (EMP), a decision-maker, on 18 December 2014, decided not to supersede the decision dated 31 August 2013.

18.	It was against the decision dated 31 August 2013 that the appellant appealed to the appeal tribunal.  The first task of the appeal tribunal, therefore, was to determine whether the decision-maker, on 18 December 2014, had grounds to supersede the earlier decision of the Department, dated 31 August 2013.  The grounds upon which a decision can be superseded are to be found in regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.

19.	A Tribunal of Commissioners in Great Britain, in R(IB)2/04, noted the following at paragraph 73 of its decision, while discussing the appeal tribunal’s powers with respect to supersession decisions:

‘… it follows from our reasoning … that the appeal tribunal has jurisdiction, on appeal, to decide whether the outcome arrived at by that decision (i.e. either to change or not to change the original decision) was correct. This will or may involve deciding (a) whether one of the statutory supersession grounds (whether the one relied upon by the decision-maker or not) applied and (b) if so whether the original decision ought to be changed.’
20.	At paragraph 10, and in considering the Great Britain equivalent regulation to Regulation 6, there can be no supersession unless one of the grounds for supersession specified in Regulation 6 was actually found to exist, and the ground which was found to exist must have formed the basis of the supersession in the sense that the original decision could only be altered in a way which followed from that ground. 

21.	Further, the appeal tribunal’s duty was not only to consider the supersession issue, including grounds, entitlement and effective date, but to make clear that it had done so.  It is not sufficient for it to be implicit from the appeal tribunal’s documentation that the supersession issue was addressed.  That consideration must be explicit from the decision notice, the statement of reasons or a combination of both.  

22.	In the record of proceedings for the appeal tribunal hearing, the following is recorded at the outset:

‘Chairman introduced panel and explained that Tribunal had power to take away existing award as well as raise it.’

23.	The reason why this statement is included in the record of proceedings is to demonstrate that the appeal tribunal has complied with the principles set out by me in paragraph 77 of the decision in C15/08-09 (DLA).  In that paragraph I outlined my view on the safest and best practice for an appeal tribunal in a case where the decision under appeal incorporates an existing award.  That best practice included an explanation to the appellant that the appeal tribunal is under a duty to consider all of the evidence which is before it and to ensure that the decision under appeal is correct and, in light of that, to outline to the appellant the powers and options available to him.  I also recommended that the appeal tribunal ensures that a record of the explanations given by the appeal tribunal is entered into the record of proceedings.

24.	More significantly, at sub-paragraph (vi) of paragraph 77 I stated that the appeal tribunal should ensure:

‘… that where a statement of reasons for the appeal tribunal’s decision is requested and given that the reasons for the exercise of the discretion to make a decision which is less favourable are set out …’

25.	In the instant case, the appeal tribunal did make a decision which was less favourable to the appellant.  It decided to remove the appellant’s extant entitlement to the lowest rate of the care component of DLA. 

26.	I turn, therefore, to the statement of reasons for its decision. The statement of reasons begins with the following statement:

‘This is an Appeal against the decision of the Department dated the 18th December 2014 not to supersede an earlier decision of the 31st August 2013 to award (the appellant) the low rate of the care component of Disability Living Allowance.’

27.	That statement is wholly accurate. In a review of the decision-making process giving rise to the appeal, the appeal tribunal has recorded the following statement:

‘A further claim was submitted by (the appellant) on the 6th September 2014 stating that his condition had deteriorated.’

28.	The emphasis here is my own. Unfortunately this statement is not accurate.  The document which was signed and dated by the appellant on 6 September 2014 and which was received in the Department on 11 September 2014 may, at first glance, have looked like a ‘claim’ form.  As was noted above, however, it was, in law, an application for a supersession of the decision dated 31 August 2013. 

29.	The appeal tribunal’s initial error in categorising the ‘form’ of 6 September 2014 appears to have affected its further assessment of the evidence. There are additional references in the statement of reasons to an ‘application’ form.  More crucially, the statement of reasons concludes with the following statement:

‘Given his lack of credibility as a witness, the Tribunal were of the opinion that it was difficult to accept any evidence given by (the appellant) that he needs accompanied when out and consequently removed the award of low rate of the mobility component of disability living allowance.  Consequently the appeal did not succeed and the decision of the Department was not confirmed as the benefit awarded by the decision of the 18th December 2014 was removed.’

30.	There are a number of problems with this statement.  Firstly, the decision dated 18 December 2014 did not make any award of benefit.  As has been repeated above, in the decision dated 18 December 2014 the decision maker decided not to supersede the decision dated 31 August 2013.  Accordingly, the appellant remained entitled to the lowest rate of the care component of DLA from and including 5 July 2013 which had been awarded by the decision dated 31 August 2013.  This leads to the second problem.  The appellant has never had an entitlement to the lower rate of the mobility component of DLA so there was no such award to be removed by the appeal tribunal.

31.	Thirdly, and of most significance, if the appeal tribunal wished to remove the entitlement to the lowest rate of the care component of DLA which had been awarded by the decision of 31 August 2013 then it would have to have concluded that there were grounds to supersede that decision. Having examined what is otherwise a comprehensive statement of reasons for the appeal tribunal’s decision, I cannot find that the appeal tribunal has anywhere addressed the issue of supersession and set out findings and conclusions on grounds to supersede the decision of 31 August 2013.  As was noted above, the findings and conclusions of the appeal tribunal read as though they were in connection with a further or renewal claim to benefit.

32.	Fourthly, I return to the content of the appeal tribunal’s decision notices. There is an incongruity about their contents.  The appeal tribunal notes that the appellant does not satisfy the conditions of entitlement to either the care or mobility components of DLA from and including 5 July 2013. Once again, that reads like a decision on a further or renewal claim.  The appeal tribunal has also disallowed entitlement from and including 5 July 2013.  That is the date from which entitlement was awarded to the lowest rate of the care component of DLA in the decision of 31 August 2013. As was noted above, to remove entitlement pursuant to the decision dated 31 August 2013 the appeal tribunal would have had to have concluded that there were grounds to supersede that decision.  If the tribunal had concluded that there were grounds to supersede then it would have had to go on to set out its findings as to the effective date of supersession. That it has not done.  Finally, the decision notice has gone on to record that the decision of 18 December 2014 was incorrect.  Without labouring the point, if the decision of 18 December 2014 was incorrect then the appeal tribunal must have concluded that there were grounds, on that date, to supersede the decision dated 31 August 2013.

33.	For these reasons, therefore, I have concluded that the decision of the appeal tribunal is in error of law and has to be set aside.  I do so with a degree of reluctance given the appeal tribunal’s judicious consideration of the other aspects of the appeal, particularly its wide-ranging analysis of the evidence which was before it.

34.	Having found that the decision of the appeal tribunal is in error of law I do not have to consider the other grounds for appealing advanced on behalf of the appellant.  I would indicate, however, that I would not have concluded that the decision of the appeal tribunal was in error of law on the basis of those submitted grounds.  I would add that I have noted Mr Donnelly’s concession that the decision of the appeal tribunal was in error of law on the basis of the manner in which it addressed the issue of supersession.

	Disposal

35.	The decision of the appeal tribunal dated 25 June 2015 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. 

36.	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 18 December 2014, in which a decision maker of the Department decided not to supersede an earlier decision dated 31 August 2013. The decision dated 31 August 2013 had made an award of entitlement to the lowest rate of the care component of DLA from and including 5 July 2013;

		(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);

		(iii) the appellant will wish to consider what was said at paragraph 77 of C15/08-09 (DLA) concerning the powers available to the appeal tribunal and the appellant’s options in relation to those powers;

		(iv) 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; and 

		(v) 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

23 November 2016