KC-v-Department for Social Development (DLA) [2010] NICom 90
Decision No:  C58/10-11(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 28 October 2008

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.

2.	The decision of the appeal tribunal dated 28 October 2008 is in error of law.  The error of law identified will be explained in more detail below.

3.	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.

4.	I am able to exercise the power conferred on me by Article 15(8)(a)(ii) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given as I can do so having made further findings in fact.  The fresh findings in fact are outlined below.

5.	My substituted decision is I confirm the decision of the appeal tribunal that the appellant is entitled to the highest rate of the care component of DLA from 9 January 2008 to 8 January 2010.  I find that the appellant is entitled to the higher rate of the mobility component of DLA from 9 January 2008 to 8 January 2010.

	Background

6.	On 25 January 2008 a decision-maker of the Department decided that the appellant was entitled to the lower rate of the mobility component and the middle rate of the care component of DLA from 9 January 2008 to 8 January 2010.  The decision dated 25 January 2008 was reconsidered on 13 February 2008 but was not changed.  An appeal against the decision dated 25 January 2008 was received in the Department on 10 March 2008.

7.	The appeal tribunal hearing took place on 28 October 2008.  The appeal tribunal allowed the appeal in respect of the care component of DLA increasing the award to the highest rate.  The appeal tribunal maintained the award of the mobility at the lower rate.  Both awards were made for the same two year fixed period.

8.	On 19 December 2008 an application for leave to appeal to the Social Security Commissioner was received in The Appeals Service.  On 16 January 2009, the application for leave to appeal was refused by the legally qualified panel member.

	Proceedings before the Social Security Commissioner

9.	On 27 January 2009, a further application for leave to appeal to the Social Security Commissioner was received in the Office of the Social Security Commissioners and Child Support Commissioners (OSSC).

10.	On 24 February 2009 observations were sought from Decision Making Services (DMS) and these were received on 23 March 2009.  DMS supported the application on the ground that the appeal tribunal has failed to identify the evidence which it preferred and that which it rejected.

11.	Observations were shared with the appellant on 6 April 2009.  Further correspondence in reply to the DMS submissions was received in OSSC on 21 April 2009, which was shared with DMS on 29 April 2009.  On 20 May 2009 further correspondence was received from the appellant.

12.	On 22 October 2009 I directed an oral hearing of the application.  On 1 December 2009 further correspondence was received from the Law Centre (Northern Ireland) which was now on record as the appellant’s representative.  The correspondence dated 1 December 2009 was shared with DMS on 3 December 2009.  On 9 December 2009 a further submission was received from DMS which was shared with the appellant and her representative on 23 December 2009.

13.	The oral hearing of the application took place on 24 March 2010.  At the oral hearing, the appellant was represented by Mr Hatton from the Law Centre (Northern Ireland), and the Department was represented by Mr Collins of DMS.  Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions.

	Errors of law

14.	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.

15.	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.”

	Was the decision of the appeal tribunal in the instant case in error of law?

16.	The appellant and her representative did not seek to challenge the decision of the appeal tribunal in respect of the care component of DLA.  At the oral hearing of the application for leave to appeal to the Social Security Commissioner, Mr Collins indicated that he had no difficulty with the conclusions of the appeal tribunal with respect to the care component of DLA, and that the appeal tribunal, having heard relevant evidence from the appellant and her husband, was entitled to arrive at that decision.

17.	The substantive challenge, therefore, is to the appeal tribunal’s conclusions with respect to the mobility component of DLA.  As was noted above, the appeal tribunal decided that the appellant was entitled to the lower rate of the mobility component for the fixed two year period from 9 January 2008 to 8 January 2010.  In rejecting the claim to the higher rate of the mobility component of DLA, the appeal tribunal, having noted the evidence which was before it concluded that:

‘Tribunal felt that the medical evidence before it was inconclusive either way but felt, on balance, that, while the Claimant clearly has multiple medical conditions, it was not convinced that her problems were such as to render her virtually unable to walk.  So far as the lower rate of the mobility component is concerned, Tribunal noted that Claimant is driving a car and it considered Commissioner’s Decision R1/07 (DLA).  Tribunal felt, however, that while that decision must give rise to some doubts about Claimant’s entitlement this was a case which could be said to fall beyond the terms of that Decision.  It accepted that Claimant has problems arising from her colostomy which, in addition to her psychological problems, give rise to a need for supervision most of the time while walking out of doors.

Accordingly, on the basis of the totality of the evidence before it Tribunal concludes that at the relevant date claimant was not unable or virtually unable to walk.  It felt that she is capable of walking a reasonable distance (at least 50 Yards) in a reasonable manner, albeit at a slower than normal pace, with some discomfort but not severe discomfort.  There is nothing in the evidence to indicate that walking would constitute a danger to her life or lead to a deterioration in her health.  It accepted, albeit with some reservations, that she did have a need for guidance or supervision while walking outdoors.’

18.	In initial observations on the application for leave to appeal, DMS supported the application on the basis that the appeal tribunal had failed adequately to identify the particular evidence which it preferred, accepted or rejected and failed to give an explicit explanation for doing so.

19.	The appellant’s representative challenges the conclusions of the appeal tribunal, with respect to the higher rate of the mobility component, in the following way:

(i)	the appeal tribunal failed to give an explanation as to why it did not accept the appellant’s own evidence in respect of her mobility;

(ii)	the appeal tribunal should have considered the issue of the manner of the appellant’s walking in light of the evidence of the examining medical practitioner (EMP) concerning her requirement to stop and start when walking;

(iii)	the appellant had supplied the appeal tribunal with a number of pieces of relevant medical evidence.  While the appeal tribunal had noted in the statement of reasons that the medical evidence was before the appeal tribunal, it had not undertaken an assessment of that evidence or given an indication as to what the outcome of that assessment was;

(iv)	the appeal tribunal has not assessed the factor of ‘time’ when considering whether the appellant satisfied the conditions of entitlement to the higher rate of the mobility component of DLA.

20.	The appeal tribunal had before it evidence, in the form of medical reports, which had been adduced by her.  These included:

(a)	a report from a senior occupational therapist dated 14 October 2008;

(b)	a report from a counselling psychologist dated 2 October 2008;

(c)	a report from the appellant’s general practitioner dated 16 October 2008.

21.	In the instant case, I am presuming that the three pieces of correspondence, all dated close to the date of the oral hearing of the appeal, were submitted to the appeal tribunal on the basis of its relevance to the issues arising in the appeal or on the basis that it provided supportive evidence on the other submissions concerning the appellant’s potential entitlement to DLA.  The report from the senior occupational therapist mentions ‘… distance is limited due to SOB and requires frequent rest periods this is further compromised with fluctuating pain and fatigue.’  The report from the counselling psychologist states that ‘… her life remains very restricted because of the Fibromyalgia, indeed, on some days she cannot get out of the house because of pain.’

22.	I have noted that the evidence concerning the appellant’s limitations with respect to her mobility was conflicting.  In her renewal claim for to DLA, the appellant states, at page 12, that she could only walk 10 metres in 40 seconds to one minute and that she would feel severe discomfort after walking for one minute.

23.	In the report of the examination undertaken by the EMP, the EMP found that the appellant walked in a ‘stop and start’ fashion, and the likely speed of walking would slow as the distance increased.  The EMP also estimated that the appellant could walk a possible 100 metres at a slow pace and in some discomfort.

24.	I have also noted that the extent of the questioning of the appellant, as evidenced in the record of proceedings, concerning the restrictions with respect to her mobility was limited.  I have also noted that the appellant’s husband is recorded as answering the questions with respect to mobility but I am assuming that this is a recording error.

25.	In C16/08-09(DLA), I said the following, at paragraph 54:

‘…there is a clear duty on appeal tribunals to undertake a rigorous assessment of all of the evidence before it and to give an explicit explanation as to why it has preferred, accepted or rejected evidence which is before it and which is relevant to the issues arising in the appeal.”

26.	The appeal tribunal may have considered that the evidence contained in the three pieces of correspondence submitted to the appeal tribunal by the appellant to have no relevance to the issues arising in the appeal, or did not support the submissions in connection with potential entitlement to DLA.  Nonetheless, the appeal tribunal was under a duty to indicate that it had considered the documentation, and indicate what it made of that documentation in relation to its determination of the issues arising in the appeal.

27.	Further, I am of the view that the appeal tribunal could have been more rigorous in its assessment and resolution of the clear conflicts in the medical evidence which was before it.  The appeal tribunal has noted those conflicts but has not, in my view, resolved them.  One possible method of resolution would have been to undertake more detailed questioning of the appellant at the oral hearing of the appeal.

28.	Finally, I am of the view that the appellant, having given evidence of a greater limitation in her mobility than that which was found by the appeal tribunal, was entitled to know, through the statement of reasons for the appeal tribunal’s decision, why her evidence was not accepted.  The appellant was given an explanation as to why her evidence concerning her requirement for attention, at night, in connection with her bodily functions but was given no further explanation concerning her evidence with respect to her mobility.

29.	Having found that the appeal tribunal was under a duty to consider the relevant medical evidence submitted to it, and having failed to consider and assess it, and explain, in its statement of reasons, that it has so considered and assessed it, I find that the decision of the appeal tribunal is in error of law.

	Further findings

30.	At the oral hearing of the application, the appellant was present and I invited her to give oral evidence to me.  Having heard from and seen the appellant, I found her to be honest and credible.  I make the following findings in fact.  The appellant has physical problems with walking caused by a combination of fibromyalgia and osteoarthritis which affect the joints of her feet.  The appellant has pain as a result of her fibromyalgia and osteoarthritis for which she takes pain-killing medication.  The appellant might go out for a walk depending on the level of pain which she is experiencing.  The appellant’s ability to walk is affected by both pain and fatigue and these latter factors would restrict her ability to walk.  The appellant is able to walk from her own house to her daughter’s house, which is across the street.  The appellant walks in a ‘stop and start’ fashion as reported to the EMP, with a requirement to stop and rest after a limited distance.

31.	I cannot accept that the appellant’s restriction with respect to her mobility is as limited as set out in her renewal claim for to DLA but I also conclude that the opinion of the EMP concerning the distance over which, and the pace at which the appellant can walk is also not a reliable estimate.  I find that the appellant can walk a total distance of 30 yards, at a slow pace, limited by pain and fatigue, but without assistance, and that it would take her one to two minutes to achieve this distance.

	My substituted decision

32.	I have been informed by the appellant’s representative that the appellant has, on a subsequent claim to DLA, been awarded an entitlement to the middle rate of the care component and the lower rate of the mobility component of DLA from 9 January 2010 to 8 January 2010.  Accordingly to the principles in C20/04-05(DLA), the period of entitlement which I can consider is thus limited.

33.	I confirm the decision of the appeal tribunal that the appellant is entitled to the highest rate of the care component of DLA from 9 January 2008 to 8 January 2010.

34.	I find that the appellant is entitled to the higher rate of the mobility component of DLA from 9 January 2008 to 8 January 2010.

35.	Any payments of DLA made to date, for the relevant periods are taken as having been paid on account of this award.

	Disposal

36.	The decision of the appeal tribunal dated 28 October 2008 is in error of law.  The error of law identified will be explained in more detail below.

37.	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.

38.	I am able to exercise the power conferred on me by Article 15(8)(a)(ii) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given as I can do so having made a further finding of fact.  The fresh findings in fact are outlined below.

39.	My substituted decision is I confirm the decision of the appeal tribunal that the appellant is entitled to the highest rate of the care component of DLA from 9 January 2008 to 8 January 2010.  I find that the appellant is entitled to the higher rate of the mobility component of DLA from 9 January 2008 to 8 January 2010.

(signed)  K Mullan

Commissioner

23 September 2010