SI-v-Department for Communities (DLA) [2017] NICom 74

Decision No:  C36/16-17(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 31 March 2016

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 31 March 2016 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 her entitlement to Disability Living Allowance (DLA) – both the care and mobility components - 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 7 May 2015 a decision maker of the Department decided that the appellant was not entitled to either component of DLA from and including 19 February 2015.  Following the receipt of additional information from the appellant she was informed that the additional information had been considered but that the decision dated 7 May 2015 had not been changed.  An appeal against the decision dated 7 May 2015 was received on 25 June 2015.

6.	Following the first listing of the appeal, the appellant returned the appeal listing form and indicated that she was unable to attend on the appeal tribunal hearing on the day it was listed as she was moving house.  She made a request for the appeal tribunal hearing to be listed on another date.  On 14 October 2015 the Legally Qualified Panel Member (LQPM) of the appeal tribunal determined that the appeal should be postponed.

7.	The appeal was re-listed for oral hearing on 1 March 2016.  The appellant was not present.  The appeal was adjourned as the LQPM determined that the notification of the hearing date, time and venue had been sent to an incorrect postal address.

8.	The substantive oral hearing of the appeal took place on 31 March 2016.  The appellant was present and was accompanied by her daughter.  There was no Departmental Presenting Officer present.  The appeal tribunal disallowed the appeal and confirmed the decision dated 7 May 2015.

9.	On 10 August 2016 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.  On 24 August 2016 the application for leave to appeal was refused by the LQPM.

	Proceedings before the Social Security Commissioner

10.	On 3 October 2016 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  The appellant’s daughter was nominated as her representative.

11.	On 11 October 2016 observations on the application for leave to appeal were requested from Decision Making Services (DMS).  In written observations dated 24 October 2016, Mr Hinton, for DMS, supported the application on one of the grounds advanced by the appellant.

12.	Written observations were shared with the appellant and her daughter on 25 October 2016.  Further correspondence was received from the appellant on 14 November 2016 to which were attached other documents.

13.	The file was referred to me on 14 March 2017.  On 15 March 2017 I granted leave to appeal.  When granting leave to appeal I gave as reasons that arguable issues arose as to (i) whether the appeal tribunal had properly applied the legislative test relating to entitlement to the higher rate of the mobility component of DLA and (ii) whether the statement of reasons for the appeal tribunal’s decision with respect to the mobility component reflected the intention in the decision notice that there was a minority view on entitlement.

14.	On the same date I determined that an oral hearing of the appeal would not be required.

15.	On 4 April 2017 further hand-written correspondence was received from the appellant in which she stated that she wished to ‘re-appeal’.  On 21 April 2017 the Legal Officer wrote to the appellant seeking clarification of the submission which was to be made.

16.	On 9 June 2017 correspondence was received from the appellant’s daughter in which she made submissions with respect to both the mobility and care components of DLA.

17.	On 17 July 2017 further hand-written correspondence was received from the appellant.  On 24 July 2017 correspondence in reply was forwarded to the appellant’s daughter in which further clarification of the steps which had been taken in relation to the case were set out.  In addition, the appellant’s daughter was advised that in light of a submission which had been made to the effect that the appellant’s medical condition had worsened, consideration might be given to making a further claim to Personal Independence Payment (PIP).

	Errors of law

18.	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?

19.	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.” 

	The error of law in the instant case

20.	Two separate decision notices were prepared by the LQPM of the appeal tribunal in respect of its decisions with respect to entitlement to the care and mobility components of DLA.  In each decision notice it is noted that the majority decision of the appeal tribunal is that there is no such entitlement.  In the statement of reasons for its decision with respect to the care component the appeal tribunal has recorded:

‘One of the members felt that there had been some loss of confidence on the appellant’s part and generally there would be a lack of interest and apathy.  Because of this that member felt that the low rate care component was appropriate based on the cooking test and significant portion of the day test in relation to bodily function.  That member favoured an open award because there were no indicators of a specific timescale when an improvement could be expected.’

21.	Turning to the statement of reasons for the appeal tribunal’s decision with respect to the mobility component there is no parallel statement of the reasons why the minority member was of the view that an award (of whatever rate of the mobility component) was appropriate.

22.	In C14/08-09(DLA), I stated the following at paragraphs of my decision:

‘The recording of reasons in ‘majority’ decisions

38.	Regulation 53(4) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, provides that:

‘(4) Subject to paragraph (4A), a party to the proceedings may apply in writing to the clerk to the appeal tribunal for a statement of the reasons for the tribunal’s decision within one month of the sending or giving of the decision notice to every party to the proceedings or within such longer period as may be allowed in accordance with regulation 54 and following that application the chairman or, in the case of a tribunal which has only one member, that member, shall record a statement of the reasons and a copy of that statement shall be sent or given to every party to the proceedings as soon as may be practicable.

39.	Regulation 53(5) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, where a decision of an appeal tribunal is not unanimous, the SORs for the appeal tribunal’s decision must include the reasons given by the dissenting member for dissenting.

40.	As I understand it, the procedure for the recording of a SORs for an appeal tribunal’s decision is as follows:

(i)	The time at which a SORs for an appeal tribunal’s decision is prepared varies from case to case.

(ii)	In the majority of cases, following the making of the decision and preparation of the formal decision notice, the LQPM, in consultation with the other members of the appeal tribunal, in appeals where the constitution of the appeal tribunal extends beyond the LQPM, will prepare and record relevant findings of fact and draft reasons, and retain these in a judicial notebook, or other form.  On receipt of an application for a SORs, under regulation 53(4), the LQPM will prepare the SORs, on the basis of the notes and drafts already available.  The practice of preparation of findings of fact and draft reasons, immediately following the making of the decision has the dual advantages - the completion of that task when the issue(s) in the appeal are fresh in the minds of the members of the appeal tribunal; and the facilitation of the preparation of the ‘full’ SORs by the LQPM, when that is subsequently requested by a party to the proceedings.

(iii)	In a minority of cases, and usually dependent on the custom of individual LQPMs, the findings of fact and ‘full’ SORs are both prepared and finalised on the day of the appeal tribunal hearing.  These are then retained on file, ready to be issued to the party to the proceedings requesting them.

41.	As was noted above, where a decision of an appeal tribunal is not unanimous, the SORs for the appeal tribunal’s decision must include the reasons given by the dissenting member for dissenting.  A number of aspects of that rule require further consideration.

42.	Firstly, where the LQPM was part of the majority decision, the task of preparing and recording the reasons for the dissenting member’s decision is not an easy one.  The LQPM, as part of the deliberations leading to the appeal tribunal’s decision, will have endeavoured to ensure a unanimous decision and, as part of that, will have sought to persuade the dissenting member as to the correctness of the majority view.  Having failed so to do, the role of the LQPM is now to record reasoning and analysis with which he or she will not agree.  There is a clear duty, in my view, on the LQPM to set aside any partiality which might be felt towards the dissenting member’s view, and to place his or her self in the position of the dissenting member when it comes to the task of the recording of reasons.  The LQPM must articulate the reasons of the dissenting member as if they were his or her own.  A failure to fulfil this duty is a failure of the judicial role.

43.	Secondly, it is clear that as the SORs will be prepared by the LQPM, the LQPM will also have the task of preparing and including the reasons of the dissenting member.  It must never be the case that where the dissenting member is not the LQPM, that the dissenting member is asked to prepare the reasons for disagreement.  That role is for the LQPM.

44.	Thirdly, in preparing the reasons of the dissenting member, the LQPM must be diligent in ensuring that the reasons are reflective of the basis upon which the dissenting member disagreed with the majority.  The reasons must

(i)	be comprehensive in dealing with the issues raised by the appeal;

(ii)	must include relevant findings in fact, where these differ from those of the majority,

(iii)	provide an outline of the evidential assessment process which gave rise to those findings;

(iv)	detail which evidence is accepted and preferred, and give reasons why;

(v)	state, where necessary, why the dissenting member has adopted a particular interpretation of the law relevant to the issues in dispute; and

(vi)	give reasons relevant to the dissenting member’s view.

The reasons for the dissenting member’s decision must never be drafted as a brief, sketchy add-on to more complete reasons for the majority.

45.	Fourthly, the SORs must not identify the dissenting member by name, or by judicial category, where relevant.

46.	Fifthly, it will be safest and best practice, where the eventual decision of the appeal tribunal is by a majority, for the full findings of fact and reasons for both the majority and dissenting member’s decisions, to be prepared and finalised on the day of the appeal tribunal hearing.  Such a practice will avoid any difficulties with recall for the LQPM and obviate the requirement for the subsequent issue of reasons to the dissenting member in draft form.’

23.	In the instant case, the statement of reasons for the appeal tribunal’s decision with respect to the mobility component of DLA does not adhere to these principles.  For that reasons I have concluded that it is in error of law.

24.	Having found, for the reasons which are set out above, that the decision of the appeal tribunal is in error of law, I have not considered the grounds of appeal as set out in the application for leave to appeal.

	Disposal

25.	The decision of the appeal tribunal dated 31 March 2016 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.

26.	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 7 May 2015, which decided that the applicant was not entitled to DLA from and including 19 February 2015;

(ii)	the Department is directed to provide details of any subsequent claims to DLA and/or PIP 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 and/or PIP into account in line with the principles set out in C20/04-05(DLA);

(iii)	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

(iv)	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

18 December 2017