DMcT-v-Department for Social Development (DLA) [2015] NICom 43
Decision No:  C3/15-16(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 13 August 2014

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 13 August 2014 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.  The legally qualified panel member (LQPM) should note, however, that the decision of the appeal tribunal is being set aside on the basis of a failure of procedures within the Appeals Service (TAS) following the oral hearing of the appeal.  One significant breakdown was an omission to carry out a direction from the LQPM which was wholly appropriate in the circumstances.  The implementation of the LQPM’s direction might have obviated the present proceedings before the Social Security Commissioner.

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.  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.

3.	It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of her 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

4.	On 5 March 2014 a decision-maker of the Department decided that the appellant did not have an entitlement to either rate of DLA from and including 9 March 2014, on the basis of a renewal claim to that benefit.  Following receipt of a telephone call disputing the relevant decision on 17 April 2014 the decision dated 5 March 2014 was reconsidered but was not changed.  A letter of appeal was received on 15 May 2014.

5.	The appeal tribunal hearing took place on 13 August 2014.  The appellant was not present and was not represented.  There was no Departmental Presenting Officer present.  The appeal tribunal disallowed the appeal and confirmed the decision dated 5 March 2014.

6.	There then followed a sequence of actions within TAS which will be described in further detail below.

7.	On 5 November 2014 the appellant was forwarded a copy of a statement of reasons for the appeal tribunal’s decision.  On 2 December 2014 the Clerk to TAS wrote to the appellant acknowledging receipt of an application for leave to appeal to the Social Security Commissioner.  On 10 December 2014 the application for leave to appeal was refused by the LQPM.

	Proceedings before the Social Security Commissioner

8.	On 9 January 2015 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 23 January 2015 written observations on the application for leave to appeal were sought from Decision Making Services (DMS).  In written observations received on 12 February 2015, Mr Culbert, for DMS, opposed the application on the grounds submitted by the appellant but supported the application on another identified ground.  Written observations were shared with the applicant on 12 February 2015.

9.	On 10 April 2015 Mr Culbert was asked to clarify the evidential basis on which he had submitted the decision of the appeal tribunal was in error of law.  A further reply was received from Mr Culbert on 15 April 2015.

10.	On 26 May 2015 I granted leave to appeal.  In granting leave to appeal, I identified as a reason that:

‘… it is apparent that due to procedural errors certain evidence submitted by the appellant in connection with her appeal was not before the appeal tribunal.  In addition, it is clear that the appellant was not advised of her right to seek to have the decision of the appeal tribunal set aside.’

	Errors of law

11.	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.  What is an error of law?

12.	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.”

	Analysis

13.	In his written observations on the application for leave to appeal, Mr Culbert submitted:

‘(The claimant) provided further evidence to support her appeal which was received in Disability Living Allowance branch on 23rd June 2014 however due to a delay in the DLA appeals section the letter was not received by The Appeals Service (TAS) until 21st August 2014 and therefore was not before the tribunal on 13th August 2014.

On 22nd August 2014 the tribunal clerk completed an AT10 asking the Legally Qualified Member of the tribunal how to proceed.  On 28th August 2014 the Legally Qualified Member responded stating:

Notify the appellant that the letter dated 30/05/14 from Dr R had been received by TAS from DLA branch on the 21/8/14, ie post the hearing on the 13/8/14.

What action does she want TAS to take in relation to it?  Does she want to make an application to set aside the decision of the 13/8/14?  Refer back to LQM in due course.

The papers show that the appellant was not notified as requested by the LQM and was not advised that she could make an application to set aside the decision of 13th August 2014 in accordance with Regulation 57(1)(a) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 which provides:

“57.-(1) On an application made by a party to the proceedings, a decision of an appeal tribunal made under the relevant statutory provision or the Child Support Order may be set aside by a legally qualified panel member in a case where it appears just to set the decision aside on the ground that – 

(a)	a document relating to the proceedings in which the decision was made was not sent to, or was not received at an appropriate time by, a party to the proceedings or the party’s representative or was not received at an appropriate time by the person who made the decision”

As (the claimant) was not in attendance at the appeal hearing she would not be aware that the further evidence she provided was not in front of the tribunal and given that it was received by Disability Living Allowance branch on 23rd June 2014 she would have a reasonable expectation that it would be.  Furthermore (the claimant) was not advised, as directed by the LQM, that the document was not received by TAS until after the hearing or that she could apply to have the decision set aside.  I can only imagine the reason for this is that TAS had received (the claimant’s) request for the statement of reasons for decision before the clerk had the opportunity to action the LQM’s direction.

Whilst the tribunal would not have known at the time of the hearing that it had not received all the evidence I would submit that there was an expectation on (the claimant’s) behalf that the tribunal would have considered evidence that she submitted in support of her appeal.  I would submit that failing to have this evidence considered would be a breach of the rules of natural justice and as such would amount to an inadvertent error in law in the tribunal’s decision.’

Furthermore it would appear that the LQM was mindful to set aside the decision of the tribunal and the failure of TAS to action his direction has deprived (the claimant) of the opportunity to have recourse to another tribunal hearing without having to go through the route of seeking leave to appeal to the Social Security Commissioner.’

14.	I accept Mr Culbert’s submission and for the reasons which have been set out by him agree that the decision of the appeal tribunal must be set aside.  There has been a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings and which justifies the setting-aside of the decision of the appeal tribunal.

	The appellant’s other grounds for appealing to the Social Security Commissioner

15.	Having found that there was a procedural irregularity which was capable of making a material difference to the outcome or the fairness of the proceedings, I do not have to consider the appellant’s other grounds for appealing.  I would indicate, however, that I would not have found the decision of the appeal tribunal to be in error of law on the other grounds cited by the appellant.

	Disposal

16.	The decision of the appeal tribunal dated 13 August 2014 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.

17.	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 March 2014, which decided that the applicant was not entitled to DLA from and including 9 March 2014;

(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

7 August 2015