MH-v-Department  for Social Development  (DLA) [2012] NICom 341
Decision No:  C32/12-13(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 9 June 2010

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.

2.	The decision of the appeal tribunal dated 9 June 2010 is not in error of law.  Accordingly the decision of the appeal tribunal that the appellant is not entitled to either the care or the mobility component of disability living allowance (DLA) from and including 21 January 2010 is confirmed.

	Background

3.	On 23 April 1998 an appeal tribunal made a decision which awarded entitlement to the appellant of the higher rate of the mobility component and the highest rate of the care component of DLA from and including 9 September 1997.  On 21 January 2010 a decision-maker of the Department superseded the decision of the appeal tribunal and decided that the appellant should have an entitlement to the lower rate of the mobility component and the lowest rate of the care component of DLA from and including 21 January 2010.  On 29 January 2010 an appeal against the decision dated 21 January 2010 was received in the Department.

4.	The appeal tribunal hearing took place on 9 June 2010.  The appellant was present, was accompanied by her niece and was represented by Mr Lafferty of the Citizens Advice organisation.  The appeal tribunal disallowed the appeal and decided that the appellant was not entitled to either component of DLA from and including 21 January 2010.  On 27 July 2010 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.  On 14 August 2010 the application for leave to appeal was refused by the legally qualified panel member.

	Proceedings before the Social Security Commissioner

5.	On 1 October 2010 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 2 December 2010 observations on the application for leave to appeal were sought from Decision Making Services (DMS) and these were received on 22 December 2010.  In these initial written observations, Mr Kirk, for DMS, opposed the application for leave to appeal on the grounds submitted by the appellant.  Written observations were shared with the appellant and Mr Lafferty on 18 January 2011.  Written observations in reply were received from Mr Lafferty on 27 January 2011 which were shared with Mr Kirk on 2 February 2011.  Further observations were received from Mr Kirk on 22 February 2011 which were shared with the appellant and Mr Lafferty on 1 March 2011.  Following the promulgation of the decision of the Tribunal of Commissioners in BMcD v Department for Social Development (DLA) ([2011] NICom 175 (C12/10-11 (DLA) (T)), Mr Kirk was asked to provide an additional submission on the application of the principles in that case to the issues arising in the present appeal.  A further submission in connection with this request was received on 14 July 2011 and which was shared with the appellant and Mr Lafferty on 27 July 2011.  There then followed a further delay in the promulgation of this decision, occasioned in part, that it was anticipated that certain of the issues arising in this appeal might be the subject of consideration in another appeal before a Social Security Commissioner.  As it turned out, the other appeal was decided without having to consider those parallel issues.  Nonetheless, apologies are extended to all the parties in this case for what has been a lengthy delay.

	Errors of law

6.	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.

7.	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

8.	In the initial application for leave to appeal to the Social Security Commissioner, the appellant’s first submission that while the appeal tribunal had placed emphasis on and accepted the evidence contained in the report of an examining medical practitioner (EMP), the appeal tribunal appeared to distance itself from the EMP’s opinion concerning the appellant’s ability to prepare a cooked main meal for herself.  The appellant submitted that she could not understand how the appeal tribunal could give an overall endorsement to the findings and conclusions of the EMP and yet appear to reject his specific opinion with respect to the ‘main meal’ test.  Paragraph 13 of the decision of the then Chief Commissioner in BB-v- Department for Social Development (DLA) ([2010] NICom 18 (C49/09-10(DLA)) was cited in respect of this first submission.

9.	The appellant’s second submission was that the appeal tribunal did not properly take into account other factors which might prevent her preparing a cooked main meal for herself and had not put to her that she could take advantage of appropriate aids and appliances in the tasks associated with the preparation of a cooked main meal.  The appellant’s final submission was related to the appeal tribunal’s comments on her appearance and behaviour during the course of the appeal tribunal hearing.  The appellant submitted that the appeal tribunal’s description of her behaviour seemed to have played a significant part in the appeal tribunal’s assessment of her credibility or reliability.  Despite this, the appeal tribunal did not seek clarification from her concerning their perception of her behaviour or demeanour.

10.	As was noted above, in his initial written observations on the application for leave to appeal, Mr Kirk opposed the application on all of the grounds submitted by the appellant.  In further written observations in reply, Mr Lafferty submitted that the presenting officer of the Department, who attended the oral hearing of the appeal, while challenging the award of entitlement to the lowest rate of the care component of DLA did not put in issue the validity of the award of the lower rate of the mobility component.  The appeal tribunal had removed entitlement to both the lower rate of the mobility component and the lowest rate of the care component of DLA.  While Mr Lafferty accepted that the appeal tribunal had given a ‘warning’ in connection with the existing award it was also under a duty to refer to any evidence which might have led the appeal tribunal to conclude that the existing award was not appropriate.  Further, it ought to have invited a submission from the appellant if it was aware of certain evidence calling into question the validity of the existing award.  Mr Lafferty submitted that it may have been the case that this evidence had come to light following the conclusion of the oral hearing of the appeal and during the appeal tribunal’s deliberations.  The decisions of the then Chief Commissioner in C24/98(DLA) and my own decision in C3/10-11(DLA) were cited by Mr Lafferty in support of this submission.

11.	In reply, Mr Kirk made the following submission:

‘In C24/98(DLA), Chief Commissioner Martin was considering a case where a tribunal decided that the original decision to award benefit was erroneous in law.  The Chief Commissioner found that the tribunal had not succeeded in establishing on proper grounds that the Adjudication Officer had erred in law in making the original award (paragraph 9).  In the same paragraph the Chief Commissioner also noted that if the tribunal had found evidence that put the original award in doubt then it was not entitled to make a decision on this evidence without affording the claimant an opportunity to make further representation on that issue as section 31(6) of the Social Security Administration (Northern Ireland) Act 1992 applied.

In C3/10-11(DLA) Commissioner Mullan was considering a case where a tribunal at a paper hearing had decided to remove an award which had not been in dispute prior to an adjourned hearing which was not attended by the claimant.  The Commissioner held that the tribunal had erred in law as it had not properly informed the claimant of its powers which included the power to make a decision less favourable to the claimant.

Before moving on to address Mr Lafferty’s specific contentions I would like to point out that Section 31 (6) of the Social Security Administration (Northern Ireland) Act 1992 was repealed with effect from 18 October 1999 when fundamental changes were introduced into the decision making and appeal process in Social Security matters.  Thus the protection this decision provided was no longer in effect as at the date of the tribunal decision dated 9 June 2010.  I would also point out that Chief Commissioner Martin had acknowledged this at paragraph 11 of the Northern Ireland Commissioner’s decision C11/00-01(DLA).

I would also state that the present case can be distinguished from C3/10-11(DLA) as in this case the tribunal had clearly set out its powers and the options available to (the claimant) at page 1 of the record of proceedings.  I would also point out that the tribunal then granted an adjournment to enable (the claimant) and her representative Mr Lafferty to decide if they wished to continue.  Furthermore I would submit that page 2 of the record of proceedings shows that it was (the claimant’s) decision to continue after the tribunal had informed her of its powers.  I would also state that as (the claimant) was represented that it is not unreasonable to have expected that her representative would have made her aware of the options available to the tribunal.  I would also state that it was for the tribunal to reach its conclusions and to explain how it reached those conclusions.  In my opinion the tribunal did not have to consider the evidence, form an opinion as to its conclusions and put this opinion to (the claimant) or her representative for comment.  The tribunal’s role is to assess the evidence and to reach a conclusion.  At paragraph 13 of the Northern Ireland Commissioner’s decision C24/03- 04 (DLA), Commissioner Brown stated;

“In general terms and because the matter appears to arise from the terms of Mr Hatton’s submission I would state that the Tribunal is not obliged in every case to put forward to the claimant its possible conclusions from the evidence and enable the claimant to dispute those conclusions.  The Tribunal will not err in law if it reaches conclusions which are sustainable on the evidence.  Mrs Gunning is quite correct in that respect.  The hearing is the claimant’s chance to put his case.  He cannot expect a two stage process of the Tribunal hearing the case, reaching provisional conclusions on the evidence and then putting those conclusions forward to be rebutted by more evidence.  In this case the Tribunal’s conclusions on the care component were quite sustainable on the accepted evidence.  It was not an error of law for it to explore the matter of supervision in relation to concentration.  I can find no merit in that ground.”

Therefore I would submit that the tribunal was quite entitled to proceed as it did, that it has not erred in law and that there is no merit in this ground of appeal.’

12.	Mr Kirk was requested to make a further submission on the applicability of the decision of the Tribunal of Commissioners in BMcD v Department for Social Development (DLA) ([2011] NICom 175 (c12/10-11 (DLA)(T)) to the issues arising in the case. In reply, Mr Kirk submitted the following:

‘In C12/10-11(DLA) (T) the Commissioners were considering the powers of a tribunal where it was presented with an appeal against a decision of the Department which was incorrect or incomplete.  In paragraphs 61 and 62 the Commissioners found that the claimant should have been allowed to comment upon the assertion that her condition had improved.  The Commissioners also held that the original tribunal should have afforded the claimant and her representative the opportunity to comment and to adduce further evidence upon the contended variance in the claimant’s condition.

Turning now to the present case (the claimant) had been in receipt of the higher rates of the mobility and care components and this was reduced on supersession to the lower rates of these components.  The tribunal however removed the existing award without giving (the claimant) or her representative the opportunity to make further submissions upon the evidence on which the tribunal based its decision or how her condition had improved to the extent that she was no longer entitled to any rate of DLA.  As this decision was less favourable to the claimant than that under appeal I would submit that in line with the principles in C12/10-11(DLA) the tribunal were obliged to seek further comments from (the claimant) and her representative and its failure to do so renders the decision erroneous in law.’

	Analysis

13.	I begin by considering the submissions which have been made in connection with the appeal tribunal’s conclusions with respect to entitlement to the lowest rate of the care component of DLA.  The first of these submissions related to the appeal tribunal’s assessment of the report of the examination conducted by the EMP.  A copy of that report was attached to the original appeal submission as Tab No. 4.  At page 17 of the report the EMP was asked to give his opinion as to whether the appellant could safely carry out a range of functions or activities, safety being measured by the requirement, or not, for help from another person to carry out the function or activity in a safe manner.  The EMP gave the opinion that the appellant could only peel/chop vegetables, cope with hot pans and use a traditional cooker with someone’s help.  When asked to provide medical evidence to support that opinion, the EMP noted ‘slightly reduced handgrip’.

14.	In the very complete statement of reasons for its decision, the appeal tribunal noted the following:

‘Although the Examining Medical Practitioner noted some help with vegetables, hot pans and cooker, he also recorded that grip was only slightly reduced.  As against this we note that the General Practitioner had actually recorded no grip problem.  On balance, we are prepared to accept the Examining Medical Practitioner’s clinical findings as stated earlier.  Given this, it is the opinion of the tribunal, that a slightly reduced hand grip would not cause disablement to such an extent that the appellant could not peel or chop a couple of vegetables, cope with a hot pan, which would not have to be heavy and use a cooker.  If appellant believed that she could not handle a hot pan she could use a slotted spoon and jug although Tribunal was of the opinion that this would not be necessary.  The appellant is not so severely disabled that she could not reasonably prepare a cooked main meal for one person if she had the ingredients.  This includes from the planning stage right through to eating.  Although Appellant’s behaviour was unusual she did understand questions readily and was able to answer appropriately.  The medical records do not indicate any significant problems in respect of fits, falls, blackouts, comas, or any such likes.  General Practitioner has confirmed that there is no recorded problem in respect of insight and awareness of danger.  Further, the medical records do not indicate any significant problem with nightmares …’

15.	In his written observations on the issue of the appeal tribunal’s assessment of the evidence contained in the report of the EMP, Mr Kirk submitted the following:

‘… the tribunal has in my opinion clearly stated that it was accepting the EMP’s assessment of (the claimant’s) inability to prepare a cooked main meal due to reduced grip.  However the tribunal then proceeded to explain why it did not believe that the reduced grip was sufficient to render (the claimant) unable to prepare a cooked main meal.  Thus I would submit that the tribunal had accepted that EMP’s assessment but had found that the inability to prepare a main meal was due to reduced grip.  I make that comment because I note that the tribunal has also indicated that it found that (the claimant) was not so severely disabled that she could not plan and prepare a cooked main meal.  In reaching that conclusion the tribunal were in my opinion dismissing the contention that (the claimant’s) fibromyalgia or mental health problems prevented her preparing a cooked main meal.’

16.	I am in agreement with the comments of Mr Kirk on this question.  I do not accept the submission that the appeal tribunal was inconsistent in its assessment of the evidence from the report of the EMP.  It is important to note that at page 17 of the report the EMP was being asked to give his opinion as to whether the appellant could safely attend to a range of functions and activities.  The EMP’s opinion was that the appellant could not safely attend to three activities all of which are associated with the preparation of a cooked main meal.  The EMP gave as a reason for his opinion that the appellant had slight reduced handgrip.  The appeal tribunal took a different view to the EMP.  It based that view on an assessment of all of the evidence which was before it, including the appellant’s own evidence.  It concluded that, in its opinion, the appellant’s problems with a slightly reduced handgrip should not prevent her from varying out the activities associated with the preparation of a cooked main meal.  The appeal tribunal was entitled, in my view, to arrive at a conclusion that was different to that of the EMP.

17.	As was noted above, Mr Lafferty had cited the decision of the then Chief Commissioner in C49/09-10(DLA) in support of his submission in connection with the appeal tribunal’s assessment of the evidence which was before it.  As was noted by Mr Kirk, the Chief Commissioner referred to my own decision in C16/08-09(DLA) and, more particularly, paragraph 54 of that decision.  Both C49/09-10(DLA) and C16/09-10(DLA) were concerned with appeals where specific evidence had been adduced either by or on behalf of the appellant and which was submitted to be of relevance to the issues arising in the appeal.  Further, in those cases, it was not clear from the statements of reasons for the appeal tribunal’s decisions that the appeal tribunal had assessed that evidence or, more significantly, outlined what the outcome of that assessment was.  Those decisions can be distinguished from the present case where there is no suggestion that the appeal tribunal failed to assess evidence submitted in connection with and relevant to the issues arising in the appeal.

18.	In connection with the report of the EMP, Mr Kirk also makes reference to the decision of the Deputy Social Security Commissioner in C3/06-07(IB).  At paragraph 11 of that decision, she stated:

‘Finally, for the avoidance of doubt, I make clear that there is no conceivable error of law in a tribunal accepting most of a report but allowing modification of it in some respects, provided that a tribunal’s reasons for doing so are clearly explained.  Mere inconsistency in the use and assessment of evidence is not erroneous in law but only becomes so if it is insufficiently explained or such explanation lacks cogence.’

19.	I agree with the statement of the Deputy Commissioner.  Applying that principle to the instant case, it is apparent that the appeal tribunal has provided a sufficient explanation as to its assessment of the evidence contained in the report of the EMP.

20.	I would note, in addition, that the appeal tribunal concluded that even if the appellant did have problems with the manipulation of a hot pan, due to problems with her grip, those difficulties might be alleviated by the use of an aid or appliance such as a slotted spoon or jug.  I find no error in the appeal tribunal’s conclusions in this regard.  In C9/08-09 (DLA), in paragraphs 21 to 40, I undertook a detailed analysis of the jurisprudence from the Social Security Commissioners in Northern Ireland, the former Social Security Commissioners in Great Britain, the Upper Tribunal and the appellate courts on the ‘main meal’ test set out in section 72(1)(a)(ii) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended and the equivalent section in Great Britain.  At paragraph 40 I stated:

‘Kitchen aids and the cooking environment

40.	There is a plethora of case-law attempting to give guidance to adjudicating authorities on the extent to which the use of devices to assist with the tasks associated with the preparation of a cooked main meal, or to improve the environment in which the task is carried out, can be taken into account.  I would summarise the guidance from these authorities as follows:

(i)	the test pre-supposes that the preparer of the meal has the ingredients.  Accordingly, inability to shop for the ingredients is to be excluded (CDLA770/00);

(ii)	an inability (can’t), or disinclination (won’t) to cook is to be ignored - the test is hypothetical or abstract (Moyna, R(DLA) 2/05, R(DLA) 2/95, CDLA/770/00, CDLA/5686/1999);

(iii)	the usual kitchen devices to assist with the preparation of food may be taken into account (R(DLA) 2/95, CDLA/770/00);

(iv)	the usual kitchen devices to assist with the cooking of food may be taken into account (CDLA/1469/95, CDLA/5686/99, CDLA/770/00);

(v)	while usual kitchen devices may be taken into account, the test should not be limited by reference to specific adaptations to the traditional kitchen to compensate for a disability (R(DLA)2/95);

(vi)	the ability to bend is not an essential part of the main meal test, and it does not require the manipulation of heavy pots and pans (CDLA/1469/95, CDLA/5686/99, CDLA/770/00, C41/98(DLA), CDLA/2367/2004);

(vii)	microwave ovens, used in the preparation of a cooked main meal, may be taken into account (CDLA/770/00, CDLA/5250/02).  In this regard, the following comments of Commissioner Jupp in CDLA/2367/2004 at paragraph 10 are apposite:

‘The claimant’s second ground of appeal was that the use of the microwave in preparing a cooked main meal should be disregarded.  This is an oversimplification of the position.  The test is whether a claimant “cannot prepare a cooked main meal for himself if he has the ingredients”.  In the Secretary of State for Work and Pensions v. Moyna [2003] 4AER 162 R(DLA) 7/03, Lord Hoffman said of the “cooking test” that:

“….its purpose is not to ascertain whether the applicant can survive, or enjoy a reasonable diet, without assistance.  It is a notional test, a thought experiment, to calibrate the severity of the disability”.

Thus we have moved from the position where a claimant might satisfy the criteria if s/he could not, most of the time, prepare a cooked main meal for one on a traditional cooker.  The better view now is that it is more a question of what the claimant does with the microwave most of the time which will enable the appropriate decision to be made as to whether s/he satisfies the criteria for an award.  It is clear that if the only activity that a claimant carries out with the microwave is to pierce a plastic lid, place the item in the microwave and adjust the controls, this will not equate to the preparation of a cooked main meal for one.  If, however, the range of activities conducted by the claimant is, in broad terms, much the same whether or not the meal is then cooked in or on a traditional cooker or in a microwave, there is no reason why the use of the microwave should not be taken into account.  It will be borne in mind that it has long been held that it is not necessary for a claimant to be able to bend to the oven nor hold heavy pans to prepare a cooked main meal for one.’

(viii)	claimed risks associated with cooking will have to be assessed, but all risk cannot be eliminated (R(DLA) 1/97);

(ix)	the effects of heat and steam must be considered where the appellant/claimant suffers from breathing problems.  Factors include the nature of the disability, likely reaction to heat/steam, and degree of ventilation available (CDLA/4214/02, CDLA/20/94).’

21.	From this analysis, it is clear than an appeal tribunal is entitled to take into account the usual kitchens aids and appliances to assist with the preparation and cooking of food.  More significantly, the comments of the appeal tribunal concerning the use of a slotted spoon and jug have to be noted in the context of its overall conclusion, based on its assessment of all of the evidence which was before it, that it did not believe that the use of such aids and appliances by the appellant was necessary.

22.	I turn to the submissions made by Mr Lafferty in connection with the appeal tribunal’s observations of the appellant and the comments made in the statement of reasons for the appeal tribunal’s decision about her demeanour.  In the statement of reasons for the appeal tribunal’s decision, the appeal tribunal noted that:

‘Appellant presented to the Tribunal with most unusual behaviour, grabbing/holding the left side of her neck frequently, looking to the ceiling and moaning/lamenting throughout the hearing, save for a brief period whilst the Presenting Officer was speaking.  The Tribunal offered the Appellant an adjournment on a number of occasions and initially the case was passed [sic] whilst the Appellant considered her options.  Both Representative and Appellant confirmed that the Appellant wished the hearing to proceed.’

23.	The appeal tribunal then proceeded, within the statement of reasons, to undertake a rigorous and thorough analysis of all of the medical and other evidence which was before it.  That analysis is set out in considerable detail.  The appeal tribunal then noted that:

‘Tribunal rejected Appellant’s evidence as we believed same to be unreliable.  We found nothing in the medical evidence to account for her presentation today.  Appellant’s evidence was somewhat conflicting and the medical records did not support her level of complaint.’

24.	As was noted above, the appellant herself submitted that the appeal tribunal’s description of her behaviour seemed to have played a significant part in the appeal tribunal’s assessment of her credibility or reliability.  Despite this, the appeal tribunal did not seek clarification from her concerning their perception of her behaviour or demeanour.  With respect to this submission, I do not agree that the appeal tribunal placed the significant emphasis on the observed behaviour of the appellant, at the oral hearing of the appeal, as she submitted in her application for leave to appeal.  The appellant’s evidence which was rejected by the appeal tribunal was her evidence concerning her claimed level of disability.  That evidence was rejected, not on the basis of her behaviour or demeanour but on the basis that the other evidence which was available to the appeal tribunal and which was subjected to extensive and detailed analysis, did not support that claimed level of disability and inability to function.  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.

25.	I turn now to the submissions made by Mr Lafferty in connection with the removal of the existing award.  It is important to remember that the decision under appeal to the appeal tribunal was a decision of the Department dated 21 January 2010 in which a decision-maker superseded an earlier decision of an appeal tribunal and decided that the appellant should have an entitlement to the lower rate of the mobility component and the lowest rate of the care component of DLA from and including 21 January 2010.  The earlier decision of the appeal tribunal had awarded entitlement to the appellant of the higher rate of the mobility component and the highest rate of the care component of DLA from and including 9 September 1997.  Accordingly, the Departmental decision had resulted in a significant reduction in the appellant’s entitlement to DLA.

26.	It is clear that the appeal tribunal recognised that the decision which was under appeal to the appeal tribunal was a decision which incorporated an existing award.  Further, and most significantly, the appeal tribunal applied the principles which I had set out in C15/08-09(DLA) in a precise and accurate manner.  The appeal tribunal, in the record of proceedings for the appeal tribunal hearing, recorded in some considerable detail the explanations which it had made in accordance with the C15/08-09(DLA) principles.  The record of proceedings also records that the Departmental presenting officer who was present sought to challenge the validity of the existing ‘award’.  I note, in addition, that the appeal tribunal permitted the appellant and her representative the opportunity to have a period of time to discuss the appeal tribunal’s powers and the appellant’s options in light of those powers.  The appellant’s representative has experience of appearing at appeal tribunals and of managing cases, particularly where the benefit at issue is DLA and where the decision under appeal incorporates an existing award.  I am certain that the appellant’s position was clearly and accurately explained to both her and her representative and that she was left in no doubt about the appeal tribunal’s powers and her options.  The appeal tribunal cannot be faulted for the manner in which it has applied the C15/08-09(DLA) principles.  On the contrary, the manner in which it did apply those principles could only be described as exemplary.

27.	To be fair to Mr Lafferty, however, his challenge is not based on a misapplication by the appeal tribunal of the C15/08-09(DLA) principles.  Rather, and as was set out above, he submits that the appeal tribunal was under a duty to refer to any evidence which might have led the appeal tribunal to conclude that the existing award was not appropriate.  Further, it ought to have invited a submission from the appellant if it was aware of certain evidence calling into question the validity of the existing award.  Mr Lafferty submitted that it may have been the case that this evidence had come to light following the conclusion of the oral hearing of the appeal and during the appeal tribunal’s deliberations.  The decisions of the then Chief Commissioner in C24/98(DLA) and my own decision in C3/10-11(DLA) were cited by Mr Lafferty in support of this submission.

28.	I can deal quickly with the two cited decisions by referring to the observations made by Mr Kirk on why they do not support the submission which is being made.  Both cases are easily distinguishable.  I also accept and agree with the submission made by Mr Kirk in connection with the comments of Commissioner Brown at paragraph 13 of her decision in C24/03-04 (DLA), where she stated that:

‘… I would state that the Tribunal is not obliged in every case to put forward to the claimant its possible conclusions from the evidence and enable the claimant to dispute those conclusions.  The Tribunal will not err in law if it reaches conclusions which are sustainable on the evidence … The hearing is the claimant’s chance to put his case.  He cannot expect a two stage process of the Tribunal hearing the case, reaching provisional conclusions on the evidence and then putting those conclusions forward to be rebutted by more evidence.  In this case the Tribunal’s conclusions on the care component were quite sustainable on the accepted evidence.  It was not an error of law for it to explore the matter of supervision in relation to concentration.  I can find no merit in that ground.’

29.	The appellant and Mr Lafferty were aware of the powers of the appeal tribunal to consider the validity of the existing award.  Further, the Departmental presenting officer, at the oral hearing of the appeal, had challenged the validity of at least part of that award.  The appellant and Mr Lafferty were given every opportunity to consider and comment on all of the evidence which was before the appeal tribunal and make submissions in connection with that evidence.  I cannot agree, therefore, that the decision of the appeal tribunal was in error of law, as submitted.

30.	I turn, finally, to the application of the principles in the decision of the Tribunal of Commissioners in BMcD v Department for Social Development (DLA) ([2011] NICom 175 (C12/10-11(DLA)(T)) to the issues arising in the case.  As was noted above, Mr Kirk has made a submission in connection with the principles in BMcD.  With respect to Mr Kirk’s submission, I cannot agree with him.  In many ways, the decision in BMcD turns on its own particular facts.  In that case the appeal tribunal was considering exercising its power to remedy defects in a Departmental decision.  At paragraph 53 of their decision, the Tribunal of Commissioners in BMcD set out a list of the factors which an appeal tribunal should take into account when hearing and determining an appeal where the remedying of a defect is or becomes a live issue.  To that extent, therefore and already, the case may be distinguished from the present case, where no such issue arises.

31.	In BMcD the Department had submitted that the decision-making process giving rise to the appeal was problematic and the appeal tribunal was asked to consider exercising a discretion to remedy the defects in the decision-making process and make the decision which the Department ought to have made.  The Department was submitting that the decision which ought to have been was a supersession decision on the basis of a relevant change of circumstances, the latter being an improvement in functional ability as evidenced by the contents of a relevant EMP report.  The error which the Tribunal of Commissioners found the appeal tribunal had made was that it had not put the Departmental submission concerning a change of circumstances and the evidence purporting to support that change of circumstances to the appellant for her comment.  That was the context in which the comments made in paragraphs 61 and 62 of the decision were made.

32.	In the instant case, the decision under appeal was clear and concise.  It was a supersession decision based on a submitted relevant change of circumstances evidenced by the content of an EMP report.  The basis for the decision was clearly explained in the reasons for the decision set out at Tab No 5A and in the appeal submission.  The appellant and Mr Lafferty were given every opportunity to comment on and make submissions as to whether the decision under appeal was correct.  Indeed in the record of proceedings for the appeal tribunal hearing, Mr Lafferty is noted as submitting:

‘’… Saying no grounds to supersede. Deteriorated. …’

	Disposal

33.	The decision of the appeal tribunal dated 9 June 2010 is not in error of law.  Accordingly the decision of the appeal tribunal that the appellant is not entitled to either the care or the mobility component of DLA from and including 21 January 2010 is confirmed.

(signed):  Kenneth Mullan

Chief Commissioner

29 October 2012