AM-v-Department for Social Development (DLA) [2012] NICom 286

Decision No:  C68/11-12(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 13 May 2010

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 13 May 2010 is not in error of law.  Accordingly, the decision of the appeal tribunal that the appellant satisfies the conditions of entitlement to the lower rate of the mobility component of disability living allowance (DLA) from 19 July 2010 to 18 July 2012 and does not satisfy the conditions of entitlement to the care component of DLA from and including 19 July 2010 is confirmed.

2.	This decision will come as a disappointment to the appellant but I am obliged, as was the appeal tribunal, to apply the relevant legislative provisions to the facts of the case.

Background

3.	On 20 February 2010 a Decision Maker of the Department decided that the appellant satisfied the conditions of entitlement to the lower rate of the mobility component of DLA from 19 July 2010 to 18 July 2012 and does not satisfy the conditions of entitlement to the care component of DLA from and including 19 July 2010.  On 5 March 2010 an appeal against the decision dated 20 February 2010 was received in the Department.

4.	An appeal tribunal hearing took place on 13 May 2010.  The appeal tribunal proceeded by way of a ‘paper’ hearing.  The record of proceedings for the appeal tribunal hearing records that the appellant had returned Form Reg2(i)(d) to the Appeals Service (TAS) indicating that she was content for the appeal tribunal hearing to proceed on the basis of the papers alone.  The appeal tribunal disallowed the appeal and confirmed the decision dated 20 February 2010.

5.	On 7 June 2010 correspondence was received in TAS from the appellant in which she asked for the decision on her appeal to be reconsidered.  On 22 June 2010 the correspondence from the appellant was placed before the legally qualified panel member (LQPM) who decided that the correspondence should be ‘treated’ as an application for leave to appeal against the decision of the appeal tribunal.  On 30 July 2010 the application for leave to appeal was rejected by the LQPM.

Proceedings before the Social Security Commissioner

6.	On 21 September 2010 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 16 November 2010 the appellant was asked to contact TAS and to make a request for the record of proceedings for the appeal tribunal hearing.  On 1 December 2010 correspondence was issued to the appellant reminding her to request the record of proceedings from TAS.

7.	On 3 February 2011 correspondence was forwarded to TAS seeking clarification of actions which had been taken following the determination by the LQPM that the correspondence received from the appellant was to be ‘treated’ as an application for leave to appeal.  On 3 March 2011 a reply was received from the clerk to TAS.  In this reply the clerk confirmed that:

(i)	on 26 July 2010 Form Comm2d was forwarded to the appellant acknowledging receipt of her application for leave to appeal to the Social Security Commissioner.  The appellant was not given any further advice to apply for a statement of reasons for the appeal tribunal’s decision or to apply for an extension of time to seek a statement of reasons;

(ii)	form Comm5d was forwarded to the appellant on 18 August 2010 advising her that the LQPM had rejected the application for leave to appeal and that she could thereafter make a further application for leave to appeal directly to the Office of the Social Security Commissioners.  Form ‘OSSC1’ was enclosed with this correspondence;

(iii)	on 25 November 2010 correspondence had been received from the appellant in which she had requested, having been asked by the Office of the Social Security Commissioners to do so, a copy of the record of proceedings for the appeal tribunal hearing;

(iv)	the further request for the record of proceedings had been placed before the LQPM who, on 16 December 2010, refused to permit the issue of the record of proceedings.

8.	Attached to the correspondence from the LQPM were copies of all of the relevant documents and correspondence referred to.

9.	On 11 May 2011 written observations on the application for leave to appeal were requested from Decision Making Services (DMS) and these were received on 19 May 2011.  In these written observations, Mr Collins, for DMS, did not support the application for leave to appeal.  Written observations were shared with the appellant on 24 May 2011.

10.	On 4 July 2011 the legal officer wrote to TAS requesting that the LQPM look again at the decision not to permit the release of the record of proceedings in light of regulation 55(3)(e) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.  On 30 August 2011 a copy of the record of proceedings was received.

11.	On 8 February 2012 I accepted the late application for special reasons and, on the same date, directed that the application could properly be determined without a hearing.

Errors of law

12.	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.

13.	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 post-appeal action in TAS

14.	As was noted above, on 7 June 2010 correspondence was received in TAS from the appellant in which she asked for the decision on her appeal to be reconsidered.  On 22 June 2010 the correspondence from the appellant was placed before the LQPM who decided that the correspondence should be ‘treated’ as an application for leave to appeal against the decision of the appeal tribunal.

15.	On 26 July 2010 a clerk to TAS wrote to the appellant in the following terms:

‘I acknowledge receipt of your application for leave to appeal to a Social Security Commissioner against the Tribunal decision dated 13/05/2010.

Your application will be forwarded to a legally qualified member for determination.

You will be notified of the determination in due course.’

16.	The appellant was not given any further advice to apply for a statement of reasons for the appeal tribunal’s decision or to apply for an extension of time to seek a statement of reasons.

17.	On 30 July 2010 the application for leave to appeal was rejected by the LQPM.  Form Comm5d was forwarded to the appellant on 18 August 2010 advising her that the LQPM had rejected the application for leave to appeal and that she could thereafter make a further application for leave to appeal directly to the Office of the Social Security Commissioners.  Form ‘OSSC1’ was enclosed with this correspondence.

18.	Accordingly, it would appear that the appellant was not re-directed to make an application for the statement of reasons for the appeal tribunal’s decision, when it was clear on receipt of the correspondence from her that the statement of reasons had not been requested.

19.	I am aware that the procedural guide for clerks to TAS contains a section which makes provision for administrative action to be taken in a situation where an application for leave to appeal has been received but a statement of reasons has not yet been requested.  Where a statement of reasons has not yet been requested, the clerk is instructed to forward a template letter ‘Comm 1d’ to the applicant, to retain the application in the file and bring the file forward for 14 days.  The template letter ‘Comm1d’ instructs the applicant to make a request for the statement of reasons.  As was noted above, it would appear that Comm1d was never issued in this case.

20.	I have to ask whether the appellant has been disadvantaged as a result of these problematic aspects of the post-appeal actions.

21.	Following the hearing of an appeal, an appellant is entitled, under regulation 53(3) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland 1999, as amended to be sent a copy of the decision notice which contains the decision of the appeal tribunal, and be informed of his right:

(i)	to apply for a statement of reasons for the appeal tribunal’s decision; and

(ii)	to the conditions governing appeals to a Social Security Commissioner.

22.	The conditions governing appeals to a Social Security Commissioner are to be found in regulation 58 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland 1999, as amended.

23.	It seems to me that an appellant is also entitled to be informed of his right to apply for the record of proceedings for the appeal tribunal hearing, and of his right to make an application to have the decisions of the appeal tribunal set aside.

24.	In the instant case, it appears to be the case that the appellant was sent a copy of the decision notice on 18 May 2010, together with the details of the regulation 53(3) requirements.  Those requirements would include the need to apply for a statement of reasons for the appeal tribunal’s decision.  The appellant was, however, not re-directed to make an application for the statement of reasons for the appeal tribunal’s decision, when it was clear on receipt of the correspondence from her that the statement of reasons had not been requested.

25.	The details in the decision notice (Form AT3D’SSAT), and the accompanying notes which were sent to the appellant on 18 May 2010, and which she did receive are, on balance, sufficient to inform the appellant of her rights to apply for the decision of the appeal tribunal to be set aside; of her right to make an application for leave to appeal to the Social Security Commissioner; and of her right to apply for a statement of reasons for the appeal tribunal’s decision.  The appellant did take certain action based on that correspondence, namely to ask for the decision of the appeal tribunal to be reconsidered.  Accordingly, I am of the view that the appellant was aware of the requirement to request a statement of reasons but failed nonetheless to make such a request.

26.	I am of the view, however, that consideration should be given by TAS as to the proper procedures to be applied in the circumstances where post-appeal correspondence from an appellant is unclear as to what the true intentions of the appellant are.

Was the decision to reject the application correct?

27.	Regulation 58(1) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, provides that:

‘58(1) Subject to paragraph (1A), an application for leave to appeal to a Commissioner from a decision of an appeal tribunal under Article 15 of the Recovery of Benefits Order or under Article 13 or 14 shall—

(a)	be sent to the clerk to the appeal tribunal within the period of one month of the date of the applicant being sent a written statement of the reasons for the decision against which leave to appeal is sought; and

(b)	be in writing and signed by the applicant or, where he has provided written authority to a representative to make the application on his behalf, by that representative;

(c)	contain particulars of the grounds on which the applicant intends to rely;

(d)	contain sufficient particulars of the decision of the appeal tribunal to enable the decision to be identified; and

(e)	if the application is made late, contain the grounds for seeking late acceptance.’

28.	An appeal tribunal has no jurisdiction to consider an application for leave to appeal to a Social Security Commissioner if there is no written statement of reasons for the appeal tribunal’s decision.  That principle was established in the decision of the Commissioner in Great Britain in R(IS)11/99 in connection with the former procedural rules for decision-making and appeals – the Social Security (Adjudication) Regulations 1995, as amended, which had an equivalence in Northern Ireland in the Social Security (Adjudication) Regulations (Northern Ireland) 1995, as amended.  The principle remains valid, however, in connection with regulation 58(1) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.  On a simple construction of regulation 58(1)(a), the time for sending an application for leave to appeal to the Social Security Commissioner commences with the date on which a written statement of reasons for the decision has been sent to the applicant.

29.	Accordingly, although I have found that the proper post-appeal procedures were not followed by TAS, the LQPM was correct to reject the application for leave to appeal to the Social Security Commissioner.

30.	In other applications for leave to appeal and in appeals themselves, I have noted that there is in existence a template form which is utilised by LQPMs to record determinations in connection with applications for leave to appeal to the Social Security Commissioner.  At section 4 of that form, the LQPM may choose one of three reasons for rejecting the application for leave to appeal.  The first of those three options, in its current version, reads as follows:

‘Reasons for decision were not sent to the applicant as required by Regulation 58(1)(a)’

31.	I am of the view that this wording does not properly reflect the reason why a LQPM has the power to reject an application for leave to appeal to the Social Security Commissioner, where there is no written statement of reasons for the appeal tribunal’s decision.  The true reason for the rejection in these circumstances is that the applicant has not applied for a written statement of reasons under regulation 53(4) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended and, accordingly, the time for bringing an application for leave to appeal, under regulation 58(1)(a) has not started to run.  I have, in the past, recommended that consideration is given to the alteration of this form to reflect the proper position.  I would repeat that recommendation here.

Consideration of the application by the Social Security Commissioner

32.	Regulation 9(1) of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999, as amended, provides that an application to a Commissioner for leave to appeal against the decision of an appeal tribunal may be made only where the applicant has sought to obtain leave from the chairman and leave has been refused or the application has been rejected.  The latter emphasis is mine.

33.	Regulation 10 of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999, as amended, requires an application to a Social Security Commissioner for leave to appeal to be made by notice in writing and to have with it, inter alia, a copy of the written statement of the reasons of the appeal tribunal for the decision against which leave to appeal is sought.

34.	The application in the instant case does not fulfil that requirement in that it does not have a copy of the written statement of the reasons of the appeal tribunal for the decision against which leave to appeal is sought.  Nonetheless, I have exercised the power conferred on me by regulation 27 of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999, as amended, and waive the absence of a copy of full written statement of the reasons for the appeal tribunal’s decision as an irregularity.  The exercise of this power permits me to consider the application.

35.	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.  In the absence of a full statement, the error of law must appear from the documents before me or from the circumstances of the case.  As was noted in R3/02(IB)(T) and R(IS) 11/99, it is evidently not possible to challenge an appeal tribunal’s decision on the grounds of inadequacy of reasoning in circumstances where there is no written statement of reasons available.  The lack of adequate reasons cannot constitute an error of law, because a statement of reasons was not requested in time.

36.	Nonetheless, I have considered the arguments which have been raised by the appellant, in her application for leave to appeal, and the response of the Department, to those arguments.  In the written observations on the application for leave to appeal Mr Collins stated the following:

‘… it is not clear to what medical information she is referring.  It would however appear that she wants her case looked at again as she disagrees with the tribunal’s findings.  In paragraph 44 of unreported Northern Ireland decision C21/10-11(DLA) Commissioner Mullan held that “an appeal on a question of law should not be permitted to become a re-hearing or further assessment of the evidence, when that assessment has already been fully and thoroughly undertaken.”  In view of this I would submit that the tribunal has not erred in law.

Furthermore as (the claimant) has not identified a point of law upon which the tribunal has erred she has therefore not passed the ‘threshold test’ and established a “….. prima facie case that the tribunal has erred in law and in what way.’”

37.	I agree with Mr Collins that the applicant has not identified a basis upon which it could be said that the decision of the appeal tribunal is in error of law.

Disposal

38.	The decision of the appeal tribunal dated 13 May 2010 is not in error of law.  Accordingly, the decision of the appeal tribunal that the appellant satisfies the conditions of entitlement to the lower rate of the mobility component of DLA from 19 July 2010 to 18 July 2012 and does not satisfy the conditions of entitlement to the care component of DLA from and including 19 July 2010 is confirmed.

(signed):  K Mullan

Chief Commissioner

14 May 2012