AW-v-Department for Social Development (DLA) [2012] NICom 261
Decision No:  C49/11-12(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 3 February 2011

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	Having considered the circumstances of the case, I am satisfied that the application can properly be determined without a hearing.  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 3 February 2011 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 entitlement to disability living allowance (DLA) 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 5 August 2010 a decision-maker of the Department decided that the claimant, on whose behalf a claim to DLA was made by his mother, should not have an entitlement to DLA from and including 1 October 2010, on the basis of a renewal claim to that benefit.  On 5 August 2010 the Department appointed the claimant’s mother to act on his behalf in connection with the claim to DLA.  On 6 September 2010 an appeal against the decision dated 5 August 2010 was received in the Department.  On 8 September 2010 the decision dated 5 August 2010 was reconsidered but was not changed.

6.	Following an earlier adjournment, the substantive appeal tribunal hearing took place on 3 February 2011.  The first page of the record of proceedings for the appeal tribunal hearing is silent as to who was present at the oral hearing but it has subsequently been confirmed that the claimant’s mother (and appointee) was present.  The appeal tribunal disallowed the appeal and confirmed the decision of the Department dated 5 August 2010.  On 20 June 2011 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.  On 21 July 2011 the application for leave to appeal was refused by the legally qualified panel member.

	Proceedings before the Social Security Commissioner

7.	On 25 August 2011 a further application for leave to appeal was received in the office of the Social Security Commissioners.  On 25 October 2011 observations on the application for leave to appeal were sought from Decision Making Services (DMS) and these were received on 11 November 2011.  In these initial written observations, Mrs Hulbert, for DMS, opposed the application on two of the grounds submitted by the appellant’s representative, Ms Kyne from the Citizens Advice Bureau, but supported the application on the other ground.  Observations were shared with the appellant and his representative on 17 November 2011.

	Errors of law

8.	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.

9.	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.”

	Why was the decision of the appeal tribunal in the instant case in error of law?

10.	In the application for leave to appeal to the Social Security Commissioner, Ms Kyne submitted that the decision of the appeal tribunal was in error of law on the basis that:

(i)	the appeal tribunal failed to take into account and resolve conflicts of fact or opinion on materials matters.  More particularly, Ms Kyne submitted that the appeal tribunal failed to make a proper assessment of a factual report, obtained as part of the decision-making process, from Consultant Neurology Department in the Ulster Hospital, and failed to consider, in sufficient detail, evidence set out in two education plans which the appellant’s appointee had submitted with the renewal claim to DLA; and

(ii)	as the decision dated 5 August 2010 to disallow entitlement to DLA was on the basis of a renewal claim to that benefit, the appeal tribunal erred in law in not explaining why a previous award was not being renewed.

11.	As was noted above, Mrs Hulbert, for DMS, supports the application for leave to appeal on the issue of how the appeal tribunal assessed the evidence contained in the education plans but does not support the application on the other cited grounds.

12.	I agree with Mrs Hulbert that, on balance, the appeal tribunal has addressed the evidence contained within the factual report, dated 30 July 2010, from the Consultant Neurology Department of the Ulster Hospital.  I am of the view that the appeal tribunal could have provided a more detailed analysis contained within the factual report that ‘… children with epilepsy need very close observation’ but agree that it is arguable that this comment is of a general rather than appellant-specific nature.  Further I agree that the appeal tribunal has taken the remainder of the relevant factual report into account in its overall assessment of the medical evidence.  Accordingly, I cannot agree that the decision of the appeal tribunal is in error of law on the basis of this cited ground.

13.	I am of the view, however, that the appeal tribunal’s assessment of the other evidence which was before it is more problematic.  As the attachments to the appeal submission confirm, the appellant’s appointee submitted a number of pieces of evidence in support of the renewal claim form to DLA.  Amongst this evidence were two education plans setting out educational targets for the appellant, based on his disability, and the teaching strategies/resources required for the attainment of those targets.  The statement of reasons for the appeal tribunal’s decision makes reference to a ‘School Report’ but it seems to me that this is a reference to additional documents which were made available to the appeal tribunal on the day of the oral hearing of the appeal.  It seems to me that the appeal tribunal could have set out in more detail its evidential assessment of the additional evidence submitted in support of the claim and which the appellant’s appointee had submitted were in support of the renewal claim to DLA.  I agree, therefore, with Mrs Hulbert, that the decision of the appeal tribunal is in error of law on the basis of this submitted ground.

14.	I turn to the submission from Ms Kyne that as the decision dated 5 August 2010 to disallow entitlement to DLA was on the basis of a renewal claim to that benefit, the appeal tribunal erred in law in not explaining why a previous award was not being renewed.

15.	In R3/04(DLA) (Quinn v Department for Social Development [2004] NICA 22), the claimant was in receipt of the highest rate of the care component and the higher rate of the mobility component of DLA for a fixed period.  Part of the evidence in respect of that award was the report of an examination by an examining medical practitioner (EMP).  A renewal claim was disallowed by the Department and that decision was upheld by an appeal tribunal.  In turn, the decision of the appeal tribunal was upheld by the Social Security Commissioner.

16.	Before the Court of Appeal, it was submitted that the appeal tribunal had failed to give any consideration to the first EMP report.  Since the appellant had been awarded DLA, on the first claim, and the medical evidence suggested that there had been no improvement in her condition the appeal tribunal ought to have taken account of the EMP report in relation to the first application.  The argument continued that, in turn, the Social Security Commissioner should have recognised that the appeal tribunal had failed to have regard to the first report and ought to have reversed the appeal tribunal’s decision on that account.

17.	The Court of Appeal dealt with the latter argument quickly holding that as the issue concerning the first EMP report had not been argued before the Social Security Commissioner, it would be quite unrealistic to expect the Commissioner to disinter an argument from relevant obscurity.  More obviously, however, the Court of Appeal held, at paragraph 35, that:

‘The ultimate disposal of this argument, however, is provided by the consideration that the first report could not have made any difference to the outcome of the appeal to the Tribunal.  The second request for DLA was a renewal application.  Each application must be treated anew.  The reason for this is clear.  The claimant for DLA must establish a level of disability at the time the application is made and for a period of six months after the benefit becomes payable.  It would avail the appellant nothing to show that in November 1997 she was considered to be sufficiently disabled to be entitled to the benefit.  She must show a contemporaneous disability of such severity that she was entitled to the benefit at the time of application and beyond.’

18.	In relation to the appeal tribunal’s requirement to consider the first EMP report, the Court of Appeal, had the following to say, at paragraphs 39-42:

‘[39] The final argument on this subject was that the Tribunal had failed to explain why it had concluded that the appellant no longer qualified for the benefit if her condition had not improved from that set out in the first EMP’s report; or if it concluded that the appellant’s condition had improved, on what basis it made that finding.

[40] The requirement to give reasons where a Tribunal decides that a claimant for benefit is no longer entitled to a benefit of which he or she had been in receipt previously was considered by the Social Security Commissioner in R(M)1-96 CM/20/1994.  In that case the claimant had lost part of his right leg in an accident and had arthritis in his left hip and spine.  His renewal claim for mobility allowance in 1992 was rejected on the ground that he was neither unable, nor virtually unable, to walk.  The claimant contended that his walking ability had in fact got worse since he was originally awarded mobility allowance in 1991.  A disability appeal tribunal confirmed the rejection of his claim.  The claimant appealed to a Social Security Commissioner.  It was held that the fact of a previous award does not raise any presumption in the claimant’s favour or result in the need for consistency having to be treated as a separate issue on a renewal claim.  However, the requirement for a tribunal to give reasons for its decision means that it is necessary for a tribunal to explain why it is not renewing a previous award unless this is obvious from its findings.

[41] We agree with this reasoning and intend to apply it to the present case.  Here the Tribunal has not explained why it is not following the course previously taken in making an award of DLA but, in our view, there was no need to do so.  The reason that the Tribunal refused DLA was that it had concluded that the appellant did not suffer from the level of disability that had to be present before the benefit was payable.  As the Court of Appeal said in Evans, Kitchen and Others v. Secretary of State, [now reported as R(I)5/94] a previous award carries no entitlement to preferential treatment on a renewal claim for a continuing condition.  In the R(M)1-96 case the Social Security Commissioner put the point in this way: -

“… on a renewal claim, which is a fresh claim for benefit for a period not covered by any previous award, there can be no question of the tribunal being bound to follow any previous decision awarding benefit for an earlier period, nor, in determining whether the conditions for benefit are satisfied on the facts as they find them to be at the date relevant for their decision, is any different standard to be applied according to whether benefit has or has not been awarded before: ex p. Viscusi, supra; CM/205/1988 components of the same benefit dealt with by the same tribunal paragraph 13 (not doubted on this point in the later cases).” (paragraph 13.4)

[42] The Tribunal said that it had concluded that the appellant had full function of her upper arms and lower limbs and that she could attend to her bodily functions unaided and unsupervised day and night.  It also said that she could cook a main meal for herself and has no mobility needs.  This statement was sufficient to convey to the appellant why she was not going to receive the benefit.  Put simply, the Tribunal had concluded that she had exaggerated her condition and that she was not truly disabled.’

19.	Applying those principles to the present case, the appeal tribunal’s duty was to outline and explain to the appellant, and the appellant’s appointee, why he did not satisfy the conditions of entitlement to either component of DLA.  I have concluded that the statement of reasons, absent the error noted above, was sufficient to ‘convey to the appellant why [he] was not going to receive the benefit’.  It was obvious from the appeal tribunal’s findings why the previous award was not being renewed.

	A further issue arising

20.	In the written observations on the application for leave to appeal, Mrs Hulbert submitted that:

‘Issue regarding jurisdiction

This appeal concerns a child who turned 16 during the appeal process; (the claimant) turned 16 on 29 November 2010.  A child self-assessment renewal form was completed by his mother and received by the Department on 30 June 2010.  Within the Departmental submission is a form DLA 225 Certificate of Appointment certifying that under Regulation 42 of the Social Security (Claims and Payments) Regulations (NI) 1987 his mother (…) was appointed to act on his behalf for the period 01 October 2010 to 29 November 2010 at which point he turned 16.  When dealing with appointments made under the GB equivalent to regulation 42 Commissioner Williams stated at paragraph 8 of unreported decision CDLA/4228/2003:

““Child“ in regulation 43 is limited to those under 16.  It follows that any appointment under regulation 43 automatically lapses when the child for whom the appointment is made becomes 16.  If he or she needs an appointee after becoming 16 as a matter of fact, then a new appointment must be made under regulation 33 (persons unable to act).  Otherwise the individual must make his or her own claims and appeals.”

There is nothing in the Departmental submission which would suggest that a further appointee form was sent out to (the claimant’s mother) upon her son turning 16 to enquire whether or not she wished to act as his appointee.  Consequently this raises the issue as to whether the application for leave to appeal dated 30 June 2011, from the CAB acting as (the claimant’s mother) representation, was a valid appeal.

Article 13(2) of the Social Security (Northern Ireland) Order 1998 provides that a claimant and any other person as may be prescribed shall have the right to appeal against a decision of the Department made on a claim for, or an award of a relevant benefit.

Regulation 25 (a) (iv) of the Social Security and Child Support (Decisions and Appeals) Regulations (NI) 1999 provides:

“25. For the purposes of Article 13(2) the following other persons have a right to appeal to an appeal tribunal – 

(a)	any person appointed by the Department –

(iv)  under regulation 33(1) of those Regulations to act on behalf of another.”

The regulations referred to in (iv) are the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987 which provide:

‘33 (1)	Where—

(a)	a person is, or is alleged to be, entitled to benefit, whether or not a claim for benefit has been made by him or on his behalf;
(b)	that person is unable for the time being to act; and
(c)	no controller has been appointed by the High Court with power to claim or, as the case may be, receive benefit on his behalf,

the Department may, upon written application made to it by a person who, if an individual, is over the age of 18, appoint that person to exercise, on behalf of the person who is unable to act, any right to which that latter person may be entitled and to receive and deal on his behalf with any sums payable to him.’

Therefore in accordance with the above legislation any appeal against the Department’s decision would have to be made by (the claimant) himself or by a person appointed under regulation 33.  As aforementioned there is nothing within the papers to suggest that permission to act was given to (the claimant’s mother) under this legislation.  In this case the application for leave to appeal was not made in (the claimant’s) own name; the CAB was acting as representation on behalf of his mother who completed a form of consent on 20 June 2010 giving them power to act.  (The claimant’s mother) was not appointed under regulation 33 to act on (the claimant’s) behalf so it could therefore be argued that for this reason the appeal is invalid.

In the chain of events relating to this case (the claimant) turned 16 after his mother had appealed to the Department but prior to the appeal hearing taking place on 3 February 2011.  At the date of the application for leave to appeal to the Legally Qualified Member (the claimant) was 16 and this application was accepted, however refused on 21 July 2011 as it had not been established that the decision of the tribunal was erroneous in law.

Consequently I would argue that as this application and its validity was accepted.  In a telephone call to the Department on 3 November 2011 I was advised that since the decision under appeal was disallowed no further claims for DLA on behalf of (the claimant) had been received.  In light of this it may also be arguable that his mother was not aware of the obligation to reapply to be (the claimant’s) appointee on his turning 16 and was still of the opinion that she was able to act on his behalf.  Furthermore papers sent from The Appeals Service (TAS) were addressed to (the claimant’s mother) which would further lead her to believe that she was still able to act in a role as appointee.  In unreported decision C30/08-09(DLA) Commissioner Mullan dealt with similar issues and at paragraphs 52 and 53 he stated:

“52.	It seems to me to be grossly unfair to challenge the validity of the appeal to the appeal tribunal.  The claimant’s mother thought that she had been validly appointed.  The Department did not initially challenge the validity of the appeal to the appeal tribunal.  Indeed, an officer of the Department, on 5 June 2008, by completion of Form AT37, which is a form of notification of an appeal by the Department to TAS, has accepted that the appeal was ‘duly made….

53.	The claimant’s mother would have taken corrective action had she known of the true position.  In my view, there should be no adherence to the strict requirements of the legislative provisions to deny a right of appeal in these circumstances and the denial of a right of appeal would be unjust in the circumstances.  It could be argued that the claimant’s mother acted as an agent for the claimant until the true appointee position was made known.”

Consequently in line with the evidence before me and in accordance with the principles laid out in unreported decision C94/10-11(DLA) it is my contention that in the interests of fairness the appeal and the subsequent proceedings be accepted as valid.’

21.	I accept this submission from Mrs Hulbert and am grateful to her for preparing it in this detail.

	Disposal

22.	The decision of the appeal tribunal dated 3 February 2011 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.

23.	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 5 August 2010, in which a decision-maker of the Department decided that the claimant, on whose behalf a claim to DLA was made by his mother, should not have an entitlement to DLA from and including 1 October 2010;

(ii)	the Department is directed to provide details of any subsequent claims to DLA 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 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

6 March 2012