SL-v-Department for Social Development (DLA) [2012] NICom 277

Decision No:  C59/10-11(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 9 March 2010

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	Having considered the circumstances of the case, I am satisfied that the appeal can properly be determined without a hearing.  The decision of the appeal tribunal dated 9 March 2010 is not in error of law.  Accordingly, the appeal to the Social Security Commissioner does not succeed.  The decision of the appeal tribunal to the effect that the appellant is not entitled to either component of disability living allowance (DLA), from and including 1 January 2010, is confirmed.

Background

2.	On 21 October 2009 a decision-maker of the Department decided that a renewal claim to DLA should be disallowed from and including 1 January 2010.  Two letter of appeal against the decision dated 21 October 2009 were received in the Department on 18 and 26 November 2009.

3.	An appeal tribunal hearing took place on 9 March 2010.  The appellant was not present.  The appeal tribunal disallowed the appeal and confirmed the decision dated 21 October 2009.  On 11 May 2010 an application to have the decision of the appeal tribunal set aside was received in the Appeals Service (TAS) from the appellant’s representative, the Citizens Advice Bureau.  On 7 June 2010 the application for setting aside was refused by the legally qualified panel member (LQPM).  On 14 July 2010 an application for leave to appeal was received in TAS.  On 27 July 2010 the application for leave to appeal was granted by the LQPM.  In granting leave to appeal, the LQPM identified the following point of law:

‘Where adequate reasons are given for the conclusion that the criteria are not satisfied for the care or mobility component at any rate, does a Tribunal err in law in adequacy of reasons by not specifically referring to each particular component?’

Proceedings before the Social Security Commissioner

4.	On 22 September 2010 the appeal was received in the Office of the Social Security and Child Support Commissioners.  On 25 November 2010 written observations on the application were sought from Decision Making Services (DMS) and these were received on 10 December 2010.  In these written observations, Mr Kirk, for DMS, opposed the application on the grounds cited by the appellant’s representative.  The written observations were shared with the appellant and his representative on 18 January 2011.  On 9 June 2011 e-mail correspondence was received from the appellant’s representative, Ms Kyne from the Citizens Advice Bureau, attaching further correspondence and medical evidence, which was shared with Mr Kirk on 14 June 2011.  On 21 June 2011 a further submission was received from Mr Kirk, which was shared with Ms Kyne on 22 June 2011.  Finally, on 4 July 2011 a further e-mail was received from Ms Kyne.

Errors of law

5.	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.

6.	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?

The submissions of the parties

7.	In the application for leave to appeal, which was before the LQPM, Ms Kyne submitted that the decision of the appeal tribunal was in error of law on the basis that:

(i)	the appeal tribunal did not refer to the appellant’s previous award of entitlement to DLA.  In support of this submission Ms Kyne made reference to the decision in R(M) 1/96;

(ii)	it was not clear whether the appeal tribunal considered whether the appellant had a potential entitlement to the lowest rate of the care component of DLA.  Additionally the appeal tribunal had not explained why it had rejected medical evidence which, potentially, supported the claim to assistance with respect to the preparation of a cooked main meal.

8.	As was noted above, Mr Kirk, for DMS, opposed the appeal on the grounds cited by the appellant.

The previous award of entitlement to DLA

9.	In the appeal submission which was prepared for the appeal tribunal hearing, the appeals writer made reference to previous awards of entitlement to DLA.  Ms Kyne, in support of her submission with respect to the requirement to consider a previous award of entitlement to DLA, in cases where a renewal claim has been made, cited the decision of the Commissioner in Great Britain in R(M) 1/96.  It is clear, however, that that decision must be considered in its entirety.  At paragraphs 14 and 15 of his decision, Commissioner Howell stated:

‘14.	I do not for my part find it consistent with this fourth point that there should be any kind of “bias” in the claimant’s favour on a renewal claim arising out of the fact that a decision has been made in his favour before.  It remains in all cases for the tribunal to be affirmatively satisfied on the material before it that the conditions for entitlement are met taking into account always that they are conducting an inquiry to ascertain the claimant’s true entitlement, and not merely umpiring a dispute where a formal “burden of proof” is placed on one side or the other: cf.  “Viscusi,” p. 65ID-652F, 654E, 659C.  To introduce such a bias could perpetuate error and in its turn introduce inconsistency in the treatment of different claimants on otherwise similar facts where one had the benefit of a previous award and the other did not.  I therefore do not consider the idea of a tribunal having to deal with “the need for consistency” as a separate issue in its own right on a renewal appeal to be well founded.  The need to treat like facts alike is of course a basic underlying requirement of any just adjudication process but this does not mean it has to be addressed specifically as an “issue” between the parties any more than the need for fairness, of which it is just one aspect.  I do not read anything said in R(A) 2/83, CM/205/1988 or Evans, Kitchen & Others [R(I) 5/94], as suggesting otherwise and insofar as the two recent decisions in CM/140/1992 and CM/113/1991 seek to go further, I decline to follow them.

15.	It does however, seem to me to follow from what is said by the Court of Appeal in Evans, Kitchen & Others, that while a previous award carries no entitlement to preferential treatment on a renewal claim for a continuing condition, the need to give reasons to explain the outcome of the case to the claimant means either that it must be reasonably obvious from the tribunal’s findings why they are not renewing the previous award, or that some brief explanation must be given for what the claimant will otherwise perceive as unfair.  This is particularly so where (as in the present and no doubt many other cases) the claimant points to the existence of his previous award and contends that his condition has remained the same, or worsened, since it was decided he met the conditions for benefit.  An adverse decision without understandable reasons in such circumstances is bound to lead to a feeling of injustice and while tribunals may of course take different views on the effects of primary evidence, or reach different conclusions on the basis of further or more up to date evidence without being in error of law, I do not think it is imposing too great a burden on them to make sure that the reason for an apparent variation in the treatment of similar relevant facts appears from the record of their decision.’

10.	There is additional authority on the extent of the duty of an appeal tribunal, when considering an appeal following a decision not to renew an entitlement to a social security benefit.

11.	In R 3/04(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.

12.	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.

13.	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.’

14.	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.’

15.	Applying those principles to the present case, it was clear that the appeal tribunal was aware that the appellant had previously been in receipt of DLA.  The record of proceedings for the appeal tribunal hearing notes that the appeal tribunal had ‘previous papers’ before it which I am taking to refer to the paperwork which had been provided in connection with previous awards.  Thereafter, and as was noted above, the appeal tribunal’s duty was to outline and explain to the appellant why she did not satisfy the conditions of entitlement to either component of DLA.  I have concluded that the statement of reasons 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.

The main meal test

16.	There are two issues to be considered here.  The first, identified by Ms Kyne, is how the appeal tribunal assessed the evidence which was available to it, in connection with potential entitlement to the lowest rate of the care component of DLA, based on an inability to prepare a cooked main meal.  The second, initially raised by Ms Kyne, and identified by the LQPM, in granting leave to appeal, is whether he was under a duty to make specific reference to the appeal tribunal’s conclusions with respect to potential entitlement, based on the main meal test, or whether otherwise satisfactory reasons for a conclusion that the DLA care component criteria were satisfied, was sufficient.

17.	In relation to the first issue, the appeal tribunal had before it, the appellant’s renewal claim to DLA.  A copy of that renewal claim form was attached to the original appeal submission as Tab No 1.  In the renewal claim form, the appellant, at page 6 of the form, indicated that ‘My mother cooks all my meals, washes my clothes, helps me remember daily duties e.g. wash myself.’  At page 23 of the form, the appellant was asked whether he had any difficulty or needed help with cutting up food, eating or drinking.  The appellant’s response was ‘no’.  At page 28 of the form, the appellant was asked whether he had difficulty preparing and planning a cooked main meal.  The appellant’s answer was ‘yes’ and he added that he lacked the motivation to cook.

18.	In correspondence dated 23 November 2009 the appellant stated that he was ‘… unable to function of [sic] a daily basis without the help and support of my family’.  In correspondence dated 26 November 2009 the appellant’s general practitioner (GP) stated that:

‘Psychotic illnesses can lead to social withdrawal and can severely debilitate somebody.  According to his mother (the claimant) hardly goes out by himself, would need constant encouragement to get involved in daily household and family activities …’

19.	The appeal tribunal had before it a written submission which had been prepared for the appellant by the Citizens Advice Bureau.  In the submission a request is made for the appeal tribunal to consider entitlement to the lowest rate of the care component of DLA on the basis that the appellant had a reasonable requirement for attention in connection with his bodily functions for a significant portion of the day and the middle rate of the care component of DLA on the basis that the appellant had a reasonable requirement for frequent attention throughout the day in connection with his bodily functions.  Thereafter there is a reference to the fact that the appellant would:

‘… have no interest on [sic] motivation in cooking for himself.  He would have issues around concentration, if things went wrong in the kitchen it would affect his confidence.’

20.	In the statement of reasons for the appeal tribunal’s decision, there is no specific mention as to whether the appellant satisfied the conditions of entitlement set out in section 72(1)(a)(ii) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended – the main meal test.  In fact, after an assessment of the evidence which was before it, the appeal tribunal arrived at a general conclusion that:

‘The available documentation and in particular the medical evidence, does not convince us that the Appellant satisfies the criteria for the care or mobility component at any rate and accordingly the appeal is disallowed.’

21.	Ms Kyne challenges the appeal tribunal’s reasoning that:

‘In the absence of oral evidence or supporting medical evidence it is difficult for us to attach weight to his mother’s claim that he hardly goes out by himself and would need constant encouragement to get involved in daily household and family activities.’

22.	Her challenge is on the basis that the letter from the appellant’s GP, dated 26 November 2009, and which was before the appeal tribunal, is such supporting medical evidence in that the GP made reference to ‘psychotic symptoms’, ‘auditory hallucinations’, to the appellant being ‘socially withdrawn’ and that the appellant required ‘… encouragement to get involved in daily household and family activities’ which could include the motivation to prepare a cooked main meal.

23.	With respect to this submission what Ms Kyne omits is that the GP’s remarks about an inability to get involved in ‘daily household and family activities’ was prefaced by the statement ‘According to his mother…’  Accordingly the GP was simply recording what he had been told by the appellant’s mother about the effect of his psychotic illness.  Further the sentence in the GP’s correspondence, which preceded the report of what the appellant’s mother had told him, was a generic statement about the possible effects of psychotic illnesses.  I am of the view that Ms Kyne has elevated what were (a) a generic statement and (b) what the GP was informed to supporting medical evidence.

24.	Of course, the appeal tribunal had to assess all of the evidence which was before it, including the evidence from the appellant’s mother.  That assessment was thorough, in my view, and the appeal tribunal has given a sufficient explanation of its assessment of the evidence, explaining why it took the particular view of the evidence which it did.  Any conflict in the evidence before the appeal tribunal has been clearly resolved and explained.  The appeal tribunal has made sufficient findings of fact, relevant to its decision, all of which are wholly sustainable on the evidence, and all of which are supported by relevant evidence.  None of the appeal tribunal’s findings are irrational, perverse or immaterial.

25.	Was the appeal tribunal required to set out in its statement of reasons its specific findings and conclusions with respect to potential entitlement to the lowest rate of the care component of DLA under section 72(1)(a)(ii) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended?  In written observations on the application for leave to appeal, Mr Kirk has made reference to the decision of Mrs Commissioner Brown in C48/03-04(DLA).  At paragraph 32 the Commissioner had stated that:

‘… It is not a legal rule that a Tribunal must make a separate evidential assessment for each component or rate of a component.  All that is required is that the reasons be adequate to explain the decision.’

26.	It has to be the case, however, that the appeal tribunal’s reasons are, as Mrs Commissioner Brown put it, ‘… adequate to explain the decision.’  In the instant case, that means that I am required to decide whether the reasons for the appeal tribunal’s decision that none of the conditions of entitlement set out in section 72 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, were not satisfied, were adequate.  Having considered those reasons, I am so satisfied.  Read as a whole, the statement of reasons for the appeal tribunal’s decision provides a detailed explanation of the basis on which the appeal tribunal arrived at its conclusions on the issues before it relating to potential entitlement under section 72.

Other matters arising

27.	There are two other matters arising in the appeal which require to be dealt with.

28.	The first relates to the application to set aside the decision of the appeal tribunal.  As was noted above, the application for setting aside was refused by the LQPM who ruled that none of the legislative grounds for setting aside, set out in regulation 57 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, were satisfied.  I am not revisiting the decision of the LQPM on the setting aside application as that decision is not on appeal before me (and cannot be on appeal to me).  The basis of the application for setting aside, however, was that the appeal tribunal might have considered exercising its power to adjourn the hearing of the appeal.  The submission was the appeal tribunal, in the statement of reasons for its decisions, had indicated that it had considered the contents of the appellant’s GP records, found that those records recorded that the appellant was physically fit and able to participate in mountain cycling, and that this led the appeal tribunal to be ‘puzzled by the claim that some of the family accompany him to ensure his safety …’  The appellant’s representative submitted that had the appeal tribunal formed the view that further clarification of certain issues was required then it could have exercised its power to adjourn to obtain further oral evidence from the appellant or a member of his family.

29.	An appeal tribunal has the legislative power, under regulation 51(4) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, to adjourn an appeal tribunal of its own motion.  Such an adjournment might be for the attendance of an appellant or other witness, or for the production of additional evidence.  A decision by an appeal tribunal as to whether or not to adjourn is one within its own judicial discretion.

30.	As was indicated by Mrs Commissioner Brown at paragraph 16 of C6/05-06(IB):

“I do not consider that the tribunal need even consider adjourning unless there is something to indicate that the appeal should not be heard on the papers.  It therefore follows that unless there is some such indication the tribunal need not consider adjourning and need not refer to having considered adjourning …  If there is no indication that determination on the papers would not lead to a fair hearing the tribunal need not adjourn nor even consider adjourning.”

31.	Looking at the entirety of the instant case, I am of the view that the appeal tribunal’s decision to proceed to determine the appeal on the basis of the evidence before it was rational, and one which it was entitled to make.

32.	The second remaining issue relates to the evidence which was presented as part of the proceedings before the Social Security Commissioner, that the appellant was diagnosed as suffering schizophrenia shortly after the appeal tribunal hearing in March 2010.  Evidence was also provided that the appellant had been detained in hospital under the Mental Health (Northern Ireland) Order 1986.  Ms Kyne submitted that:

‘(The claimant) was diagnosed as suffering from schizophrenia shortly after the Tribunal hearing in March 2010.  This information was not before the Tribunal, however given the references to ‘psychotic symptoms’ by the Appellant’s GP Dr D… in his letter of 26/11/09.  Therefore it is submitted that the Tribunal erred in not considering whether an adjournment was required in order to glean further information about the Appellant’s mental health.’

33.	The deterioration in the appellant’s medical condition, following the appeal tribunal hearing, appears to have been rapid and unexpected.  In the correspondence dated 26 November 2009, the appellant’s GP refers to ongoing psychotic symptoms that reference was in the context of the GP not having seen the appellant for some time.  It is my view that the appeal tribunal assessed the evidence contained within the correspondence dated 26 November 2009 in line with all of the other medical evidence which was before it.  The appeal tribunal was not, in my view, alerted to any change in the appellant’s medical condition which required consideration of an adjournment to obtain additional medical evidence.

34.	I am certain that Ms Kyne was not submitting that the deterioration in the appellant’s medical condition, subsequent to the appeal tribunal hearing, should now be taken into account by me, as part of the appeal against the decision of the appeal tribunal.  In this regard, she will be aware of the decision of Mrs Commissioner Brown in C24/03-04(DLA), in which she approved of the following statement of law set out in paragraph 9 of the decision of Commissioner Jacobs in R(DLA) 2/01):

‘….. In the case of a claim for a Disability Living Allowance, the jurisdiction {of an Appeal Tribunal} is limited to the inclusive period from the date of claim to the date of the decision under appeal.  The only evidence that is relevant is evidence that relates to the period over which the tribunal has jurisdiction.  However it is the time to which the evidence relates that is significant, not the date when the evidence was written or given.  It does not limit the tribunal to the evidence that was before the officer who made the decision.  It does not limit the tribunal to evidence that was in existence at that date.  If evidence is written or given after the date of the decision under appeal, the tribunal must determine the time to which it relates.  If it relates to the relevant period, it is admissible.  If it relates to a later time it is not admissible.’

35.	Accordingly, the appeal tribunal in the instant case was limited to taking account of evidence that was relative to the period over which it has jurisdiction under Article 12(8)(b).  The principles in R(DLA) 2/01 give an accurate summary of the relevant legal principles, and confirm why a submission regarding a deterioration in a medical condition, subsequent to the decision of the appeal tribunal, cannot succeed as a ground for applying for leave to appeal to the Social Security Commissioner.

36.	Nonetheless, one should not under-estimate the gravity of the deterioration in the appellant’s medical condition.  It may be the case that the effects of that deterioration are such that a further claim to DLA might be warranted.

Disposal

37.	The decision of the appeal tribunal dated 9 March 2010 is not in error of law.  Accordingly, the appeal to the Social Security Commissioner does not succeed.  The decision of the appeal tribunal to the effect that the appellant is not entitled to either component of DLA, from and including 1 January 2010, is confirmed.

(signed):  K Mullan

Chief Commissioner

4 April 2012