TS-v-Department for Communities (PIP) [2018] NICom 21

Decision No:  C6/17-18(PIP)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

PERSONAL INDEPENDENCE PAYMENT

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 5 April 2017

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	As will be explained in greater detail below, both parties have expressed the view that the decision appealed against was erroneous in point of law.

2.	Accordingly, pursuant to the powers conferred on me by Article 15(7) of the Social Security (Northern Ireland) Order 1998, I allow the appeal, I set aside the decision appealed against and I refer the case to a differently constituted tribunal for determination.

3.	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 Personal Independence Payment (PIP) remains to be determined by another appeal tribunal.

4.	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 29 September 2016, which decided that the appellant was not entitled to PIP from and including 25 July 2016;

	(ii)	the Department is directed to provide details of any subsequent claims to PIP and the outcome of any such claims to the appeal tribunal to which the appeal is being referred;

	(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.

	Background

5.	On 29 September 2016 a decision maker of the Department decided that the appellant was not entitled to PIP from and including 25 July 2016.  Following a request to that effect the decision dated 29 September 2016 was reconsidered on 26 October 2016 but was not changed.  An appeal against the decision dated 29 September 2016 was received in the Department on 22 November 2016.

6.	The appeal tribunal hearing took place on 5 April 2017.  The appellant was present and was represented by Mr Murphy of the of the Advice NI organisation.  A Departmental Presenting Officer was present.  The appeal tribunal allowed the appeal, in part, making an award of entitlement to the standard rate of the mobility component of PIP for a limited period from 2 November 2016 to 1 November 2019 but no entitlement to the daily living component.

7.	On 29 June 2017 an application for leave to appeal to the Social Security Commissioners was received in the Appeals Service (TAS).  On 11 July 2017 the application for leave to appeal was refused by the Legally Qualified Panel Member (LQPM).

	Proceedings before the Social Security Commissioner

8.	On 23 August 2017 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 6 September 2017 observations on the application for leave to appeal were requested from Decision Making Services (DMS).  In written observations dated 4 October 2017, Mr Culbert, for DMS, supported the application for leave to appeal on the grounds submitted on behalf of the appellant.  Written observations were shared with the appellant and Mr Murphy on 4 October 2017.

9.	On 3 May 2018 I granted leave to appeal.  In granting leave to appeal, I gave, as a reason that the grounds of appeal were arguable.  On the same date I determined that an oral hearing of the appeal would not be required.

	Errors of law

10.	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?

11.	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

12.	In the application for leave to appeal, which was received in the Office of the Social Security Commissioners, Mr Murphy made the following submission on behalf of the appellant:

‘Firstly, in the reasons for its decision, whilst the tribunal have outlined its rationale for the award it made in respect of each activity, there is no indication as to what extent it assessed the appellant’s ability to carry out the activities in pursuance of Regulation 4(3) The Personal Independence Payment regulations (Northern Ireland) (PIP Regs) 2016.  Under this regulation, a claimant is to be assessed as satisfying a descriptor, only if it can be performed safely; to an acceptable standard; repeatedly; and within a reasonable time period, all of which are to defined under Regulation 4(5) of the PIP Regs 2016.’

13.	In his written observations on the application for leave to appeal, Mr Culbert has made the following submission in response:

‘Regulation 4 of the Personal Independence Payment Regulations (Northern Ireland) 2016 provides for the assessment of a claimant’s ability to carry out activities.  In particular regulation 4(3) provides that where a claimant’s ability to carry out an activity is assessed the claimant is to be assessed as satisfying a descriptor only if the claimant can do so safely, to an acceptable standard, repeatedly and within a reasonable time period.

…

I submit that the tribunal has a responsibility to explain its decision.  In doing so I would be of the opinion that the tribunal should explain how it decided which descriptor best described a claimant’s ability to carry out an activity and this includes an acknowledgement that full consideration has been given to a claimant’s ability to carry out activities safely, to an acceptable standard, repeatedly and within a reasonable time period.  I submit that in this case the tribunal has failed to adequately explain its decision and has therefore erred in law.’

14.	It is clear, therefore, that both parties have expressed the view that the decision appealed against was erroneous in point of law.

15.	Accordingly, pursuant to the powers conferred on me by Article 15(7) of the Social Security (Northern Ireland) Order 1998, I allow the appeal, I set aside the decision appealed against and I refer the case to a differently constituted tribunal for determination.

16.	I would add that guidance on the principles to be applied when considering the application of regulation 4 of the Personal Independence Payment Regulations (Northern Ireland) 2016, including an analysis of the important reported decision of a Three-Judge Panel of the Upper Tribunal in RJ, GMcL and CS v Secretary of State for Work and Pensions (PIP), ([2017] AACR 32) is to be found in paragraph 4.176 of Volume 1 of Social Security Legislation 2017/2018.

(signed):  K Mullan

Chief Commissioner

1 June 2018