[2008] NISSCSC C4_08_09(DLA) (24 June 2008)

Decision No:  C4/08-09(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 7 December 2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I grant leave to appeal with respect to an application by the claimant to appeal against a decision of the tribunal sitting in Omagh on 7 December 2007 (the tribunal) and move to determine the ensuing appeal.

2.	The Department has submitted observations on the application and opposed it.  However, both parties have consented to the application being treated as an appeal and any question arising on the application being determined as if it arose on appeal; I consider it appropriate for me to so treat the application.  In the original application, an oral hearing was requested by the appellant’s legal advisor (the representative) and refused by the Legal Officer.  I too am satisfied that the proceedings can properly be determined without a hearing.

3.	I set aside the tribunal’s decision which I determine is in error of law, and return the appeal to new tribunal for a fresh hearing.

	Background

4.	In issue in the present case is entitlement to the higher rate of the mobility component of disability living allowance (higher mobility).  There are some errors in the case summary set out in the written submission by a decision-maker (DM) on behalf of the Department prepared for the benefit of the tribunal.  However, so far as relevant, the award history appears to be the following.  By decision dated 25 January 1995, a DM awarded higher mobility and the highest rate of the care component of disability living allowance (highest care) from and including 21 February 1995.  There was a supersession on the Department’s own initiative on 11 April 2005, reducing higher mobility to the lower rate of the mobility component of disability living allowance (lower mobility) and continuing highest care, both components from and including 11 April 2005.  This decision was not appealed to a tribunal.

5.	On 5 January 2007, a request for supersession was received on behalf of the claimant.  On 30 March 2007 a DM issued a decision refusing to supersede the award made following supersession on 11 April 2005.  The refusal to supersede was appealed to a tribunal.

	The tribunal decision

6.	The appellant did not attend the hearing nor her appointee but the representative appeared on her behalf.  There was no presenting officer (PO) present for the Department.  The representative submitted that the claimant had been in receipt of higher mobility for 10 years from 1995 and that the onus lay on the Department to justify the subsequent reduction.

7.	In a very brief statement of reasons, the DM’s decision under appeal to it was confirmed:

“So far as mobility is concerned, the weight of professional opinion indicates that Appellant not virtually unable to walk”.

	Appeal to the Commissioner

8.	The representative reiterates that, “… it was incumbent upon the Department to explain their decision to reduce DLA mobility from high rate to low rate … their own medical evidence does not justify this at all”.

9.	In response, on behalf of the Department it is submitted that the supersession of 11 April 2005, which reduced higher mobility to lower mobility, was not the decision under appeal to the tribunal, so that the DM was not obliged to justify that decision.  It was the refusal to supersede dated 30 March 2007 which was before the tribunal.  As that supersession had been requested on behalf of the appellant, the onus lay on her to demonstrate that a supersession in her favour was appropriate.

10.	So far as substantive entitlement to higher mobility is concerned, the DM submits that there was no error of law in the tribunal’s approach to its determination that the appellant was not virtually unable to walk.

11.	The representative argues that as the decision dated 30 March 2007 is a decision which refused to alter or vary the decision made on 11 April 2005, “… it is very obvious that they cannot be considered to be discrete separate decisions”.  Again, he argues that “… it was incumbent upon the Department to explain why DLA, which had been in place for 10 years at the high rate mobility, and now appears to have been unilaterally withdrawn despite their own evidence indicating that there was no change in circumstances … to come along to the hearing and to try and justify their reduction in these circumstances”.

	My conclusion and reasons
	Structure of decision making and the burden of proof

12.	I accept none of the representative’s arguments.  Under Article 17 of the Social Security (Northern Ireland) Order 1998, decisions are final subject to appeals and revisions or supersessions.  As the supersession on 11 April 2005, which reduced an award of higher mobility component that had previously stood for 10 years to lower mobility, was not appealed, it stands as the operative award unless and until altered according to the legislative scheme.

13.	It may be so altered by supersession.  However, following an application by the appellant for such action, there has been a refusal to supersede.  That refusal in 2007 to supersede the earlier decision in 2005 is quite distinct from that earlier decision.  The whole structure under the Social Security Order is one of original decisions and possible later decisions superseding or revising earlier decisions.  Moreover, the onus lies on the person who seeks supersession to make out, firstly, that there are statutory grounds to supersede and, secondly, that on carrying out such supersession, there is entitlement in the terms now sought.

	Entitlement to higher mobility

14.	Although the relevant submission was not put to the tribunal, as an inquisitorial body it should have appreciated that there are two alternative routes to higher mobility entitlement and there was evidence in the case that the appellant could possibly fit either or both routes.  The first is that of virtual inability to walk.  There is some evidence (which a tribunal may or may not accept) that the appellant walked 200 yards in 2005, which has now reduced to 50 yards.  There may, therefore, be a relevant change of circumstances giving a ground for supersession in that way and on such supersession, there is an arguable case that virtual inability to walk exists.

15.	However, where the tribunal erred is that it did not consider the possible application of regulation 12(5) and (6) of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992.  Whether or not the appellant can satisfy these very stringent criteria depends on exploration of the evidence but she is in receipt of highest care.  However, there was evidence before the DM in 2005 in the form of a report from the general practitioner (GP) referring to “mental retardation” and “severe behavioural problems”.  The DM in carrying out a supersession changing higher mobility to lower mobility did not explore this option, which could be regarded as in error of law allowing later supersession under regulation 6(2)(b) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999.  If the new tribunal considers that there is such a ground applicable, it would then continue to decide whether entitlement to higher mobility under the behaviour route was established.

	Summary

16.	For the above reasons, the tribunal erred in law and its decision must be set aside.  The appeal is therefore remitted to a new tribunal to begin again.  It is emphasised it will be a complete rehearing on the basis of the evidence and arguments available to the new tribunal, and in accordance with my guidance above, and the determination of the claimant’s case on the merits is entirely for them.  Although the claimant has been successful in her appeal limited to issues of law, a decision on the facts of her case remains open.

17.	So far as virtual inability to walk is concerned, matters of judgment on the factual application of statutory test are exclusively for a tribunal unless its exercise of judgment is such that no reasonable tribunal could make on the basis of the facts found and having regard to the evidence.  If (which is for the new tribunal) the appellant’s walking is limited to 50 yards, this is very much a borderline case.  The new tribunal is not bound by the conclusions of the former tribunal.  A decision either way could not be said to be perverse.  However, if she does not satisfy the virtual inability to walk test, then the severe behavioural option is for consideration.

	(Signed)  L T Parker

	DEPUTY COMMISSIONER

        24 June 2008