TW-v-Department for Social Development (DLA) [2011] NICom 187
Decision No:  C11/11-12(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 15 October 2009

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.  The decision of the appeal tribunal dated 15 October 2009 is in error of law.  The error of law identified will be explained in more detail below.

2.	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.

	Background

3.	This appeal has a detailed and complicated background and is inextricably linked to a further appeal [C12/11-12(DLA)] and this decision has to be read in light of the further decision which was made in that appeal.

4.	The background is as follows.  On 7 December 2007 a decision-maker of the Department made a supersession decision the outcome of which was that the appellant should have an entitlement to the higher rate of the mobility component of disability living allowance (DLA) from and including 16 December 2006 and the middle rate of the care component from 16 December 2006 to 15 December 2009.

5.	Although it is nowhere mentioned in the appeal submission which was prepared for the appeal the decision of which is the subject of these proceedings, the further decision-making process would appear to have been the following.  A reconsideration of the decision dated 7 December 2007 was requested on 2 January 2008.  On 14 January 2008, the decision dated 7 December 2007 was reconsidered but was not changed.  On 24 January 2008, an appeal was received in the Department.  An oral hearing of the appeal took place on 4 June 2008.  The appeal tribunal disallowed the appeal in respect of the mobility component of DLA and substituted its own decision.  On 9 June 2008 an application was made to set aside the decision of the appeal tribunal dated 4 June 2008.  On 2 July 2008, the application to set aside the decision of the appeal tribunal dated 4 June 2008 was refused.  There then followed proceedings before the Social Security Commissioners and back, on a remittal by the Social Security Commissioner, to an appeal tribunal.  The detail of those proceedings and the outcome of the remittal are the subject of the further appeal in C12/11-12(DLA).

6.	At Tab No 2 of the appeal submission in the instant case there is a record of a telephone call, on 16 July 2008, to the Department from the appellant.  This is recorded as ‘T/C FROM CST REQ S/S DLA434 SUMM & NOTED ISSD AEC C/C’.  What I take from that is that a telephone call had been received from the ‘customer’, meaning the appellant, who had made a request for a supersession.  Accordingly, relevant forms were issued to the appellant.  I do not understand what ‘AEC C/C’ means but I suspect the ‘C/C’ part relates to a ‘change of circumstances’.

7.	On 21 August 2008 completed ‘DLA434 SUMM’ forms were received in the Department.  Also on 21 August 2008 a further letter was received in the Department from the appellant in which he sets out his understanding of the decision-making history and attaches a number of enclosures.  The appellant makes a request that ‘I would appreciate someone looking at the whole picture’.

8.	Someone did attempt to do just that.  On 27 August 2008 a decision-maker of the Department decided that there were no grounds to supersede the decision of the appeal tribunal dated 4 June 2008.  On 1 September 2008 a telephone call was made to the Department in which the appellant disputed the decision dated 27 August 2008.  On 5 September 2008 a letter of appeal against the decision dated 27 August 2008 was received in the Department.

9.	At this stage in the narrative on the decision-making process, it is important to note that on 4 September 2008, the appellant had also made an application for leave to appeal against the decision of the appeal tribunal dated 4 June 2008.

10.	Despite the continuation of the appellate process in connection with the decision of the appeal tribunal dated 4 June 2008, the Department continued to take action in connection with the decision dated 27 August 2008 which also dealt with the 4 June 2008 appeal tribunal decision.  On 28 October 2008 the appellant telephoned the Department to provide additional information.  On 26 November 2008 the Department received a factual report from a consultant in pain management.  On 30 December 2008 the appellant was examined by an examining medical practitioner.

11.	On 10 January 2009 another decision was made by a decision-maker of the Department.  In the case summary in the appeal submission that decision is described as a revision.  The outcome of the decision is stated to be that ‘… grounds did exist to supersede the Tribunal’s decision of 4/6/08 and that the award should be reduced to the lowest rate care component (main meal) only, from and including 10/1/09’.  It is clear that there are problems either with that narrative or the decision-making process or both.  Consideration of the copy of the decision, at Tab Nos 9 and 9A of the appeal submission, does little to resolve those problems.  There the decision is variously described as a ‘reconsideration’, ‘revision’ and a ‘supersession’.

12.	That was not the end of the matter, however. On 12 February 2009 further correspondence was received from the appellant to which he attached various items of correspondence in connection with the decision-making process which had taken place to that date.  On 6 February 2009 another decision-maker made yet another decision.  In the case summary in the appeal submission that decision is described as a reconsideration of the decision dated 10 January 2009 resulting in no change.

13.	On 16 June 2009 another decision-maker made yet another decision.  The status of that decision will be explored in more detail below as will be the issue as to whether any appeal was ever exercised against the decision dated 16 June 2009.

	Proceedings before the appeal tribunal

14.	Two appeals were listed for hearing before an appeal tribunal on 16 October 2009.  The appellant was present together with his partner and was represented.  The Department was represented by a Departmental presenting officer.

	In the papers which are before me I have:

(i)	a record of proceedings, a statement of reasons and two decision notices in connection with an appeal which had been given reference number ‘CR/4138/09/37/D’ by the Appeals Service (TAS); and

(ii)	a record of proceedings, a statement of reasons and two decision notices in connection with an appeal which had been given reference number ‘CR/1739/09/37/D’ by TAS.

15.	The statement of reasons for the appeal tribunal’s decision in the appeal with the reference number ‘CR/4138/09/37/D’ begins with the following statement:

‘The first issue for the Tribunal was whether there were grounds to supersede the original decision of 7/2/2007’.

16.	I am certain that the reference to ‘7/2/2007’ should read ‘7/12/2007’.  There is no reference to any decision having been made on 7 February 2007.  Further, and as was noted above, there was a decision made on 7 December 2007.

17.	The two decision notices under the reference number ‘CR/4138/09/37/D’ read as follows:

‘Appeal Allowed

Claimant is entitled to the Middle Rate of the Care Component to 15/12/09 there being no grounds to supersede the original decision so deciding.’

‘Appeal Allowed

Claimant is entitled to the Higher Rate of the Mobility Component from 16/12/06 there being no grounds to supersede the original decision so deciding.’

18.	It seems to me that the appeal tribunal, in the case under reference number ‘CR/4138/09/37/D’ was considering an ‘appeal’ against the decision dated 16 June 2009 and was considering whether that decision was correct.  As was noted above, the precise legal status of the decision dated 16 June 2009 and whether any right of appeal was ever exercised against it will be considered in more detail below.

19.	An application for leave to appeal against the decision of the appeal tribunal was received in TAS on 14 January 2010.  On 18 January 2010 the application for leave to appeal was refused by the legally qualified panel member.

	Proceedings before the Social Security Commissioner

20.	On 22 February 2010 a further application for leave to appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners.  On 10 May 2010 observations were sought from Decision Making Services (DMS) and these were received on 10 June 2010.  Written observations were shared with the appellant on 16 June 2010.  On 25 July 2010 comments in reply were received from the appellant which were shared with DMS on 27 July 2010.  On 10 September 2010 the late application for leave to appeal was accepted by a Social Security Commissioner for special reasons.  On 15 September 2010 I directed an oral hearing of this and the related application.  The oral hearing of the application took place on 15 November 2010.  At the oral hearing of the applications the appellant was represented by Ms Cogavin 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

21.	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.

22.	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?

23.	As was noted above, on 16 June 2009 a decision-maker of the Department made a decision.  In the case summary in the appeal submission the decision-making process is described as ‘… a decision maker considered all the evidence gathered since the decision of 07/12/07 and decided that there had been a change in circumstances and that (the claimant’s) entitlement should be decreased to lowest rate care component from and including 16/06/09.’

24.	A copy of the decision made on 16 June 2009 was attached to the original appeal submission as Tab No 13.  In a document headed ‘Decision (DLA)’ the decision is referred to as a ‘reconsideration’.  In a further document headed ‘Reason for Decision’, the following sentence is included in two separate places:

‘The decision dated 07/12/2007 is superseded due to a relevant change in circumstances in the form of health improvement’.

25.	Elsewhere in the document a positive response is indicated to the question ‘Is there a case or circumstance to justify a Revision or Supersession?’

26.	In the appeal submission the appeals writer has submitted that the ‘… decision, which is under appeal in this case, is the decision dated 16/06/09 (Tab No 13).  This decision superseded and changed the Tribunal’s decision dated 07/12/07.’

27.	At the oral hearing of the application Mr Collins conceded that the decision dated 16 June 2009 was a supersession of the decision dated 7 December 2007.

28.	Nowhere in the documents which have been provided to me can I find anything which represents the issue of the decision of 16 June 2009 to the appellant, the advice to him that he could exercise a right of appeal against the decision dated 16 June 2009 or the actual exercise of a right of appeal against the decision dated 16 June 2009.  In written correspondence to TAS, dated 9 October 2009, the appellant indicated that:

‘I can confirm to the legal member that this decision of June 2009 was never at any time requested to be appealed before a tribunal.  I disagreed with it of course and made that clear to the DWP but at no time did I ask to have it appealed.’

29.	The reference to the ‘DWP’ should, of course, be to the ‘DSD’.

30.	At the oral hearing of the application Mr Collins conceded that the appellant should have been advised of his right of appeal against the decision dated 16 June 2009.

31.	In the written observations on the application for leave to appeal, Mr Collins submitted that:

‘Valid Appeal

I note that in a letter to the Appeals Service (dated 9 October 2009) (the claimant) stated he has never appealed against the decision of 16 June 2009 and contended that the decision could not be put before the tribunal.  I would however submit that (the claimant) had originally appealed against the decision of 27 August 2008 and this decision and the subsequent decision were revised.  However as the subsequent decisions were not advantageous to (the claimant) his appeal did not lapse.  I would therefore submit that his original appeal was still valid and the tribunal were quite entitled to proceed with the hearing’.

32.	Article 10(6) of the Social Security (Northern Ireland) Order 1998, as amended, provides that:

‘Except in prescribed circumstances, an appeal against a decision of the Department shall lapse if the decision is revised under this Article before the appeal is determined.’

33.	Regulation 30(1) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended provides that:

‘30(1) An appeal against a decision of the Department shall not lapse where the decision is revised under … Article 10 before the appeal is determined and the decision as revised is not more advantageous to the appellant than the decision before it was … revised.’

34.	Regulation 30(2)(e) of the Social Security (Decisions and Appeals) Regulations (Northern Ireland) 1999 provides that decisions which are more advantageous include a decision where:

‘… in consequence of the revised decision, benefit paid is not recoverable under section 69, 69A or 72 of the Administration Act or regulations made under any of those sections, or the amount so recoverable is reduced …’

35.	There is, therefore, a rule which permits the lapsing of an appeal in prescribed circumstances where a further decision is made before the appeal is determined.  The crucial aspect of that rule, however, is that the further decision has to be a revision.

36.	Applying those principles to the instant case, it is now agreed by all that the decision dated 16 June 2009 was not a revision but was a supersession.  Accordingly, the regulation 30(1) exception to the lapsing rule cannot, contrary to Mr Collins’ submission, apply to extend an appeal made against a decision dated 27 August 2008 to become an appeal against the decision dated 16 June 2009.  This has the implication that the appellant was never advised of his right to appeal against the decision dated 16 June 2009 and did not ever exercise any rights of appeal against the decision dated 16 June 2009.  Accordingly, there was no valid appeal before the appeal tribunal and the appeal tribunal had no jurisdiction to hear and determine an appeal against the decision dated 16 June 2009.

	Disposal

37.	The decision of the appeal tribunal dated 15 October 2009 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.

38.	The Department is directed to provide the appellant with notification of the decision dated 16 June 2009 and to advise him that he has the right to appeal against that decision.  As there is no evidence that the appellant was ever notified of the decision dated 16 June 2009 the time limit for the bringing of an appeal against that decision, as provided for in regulation 31(1) of the Social Security and Child support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, has not begun to run.  As was stated by the Deputy Commissioner at paragraph 11 of C10/07-08(IS):

‘Regulations 28 and 32(2) make it clear that delay in providing notification of a decision does not affect a person’s right to appeal or, indeed, to obtain a written statement of reasons for a decision.  Time does not run until notification is given.’

39.	Whether the appellant, upon receiving the appropriate notification of the decision dated 16 June 2009, and after being advised of his right to appeal against the decision dated 16 June 2009, exercises that right of appeal, is a matter entirely for him.  The decision as to whether to exercise a right of appeal may depend on the outcome of the decision in the related case.

(Signed):  K Mullan

Chief Commissioner

5 July 2011