LMMcG-v-Department for Social Development (DLA) [2016] NICom 17

Decision No:  C15/15-16(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 21 February 2014

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is a claimant’s application for leave to appeal from the decision of an appeal tribunal sitting at Banbridge.

2.	An oral hearing of the application has not been requested. 

3.	For the reasons I give, I grant leave to appeal, set aside the decision of the appeal tribunal under Article 15(8)(b) of the Social Security (NI) Order 1998.  I direct that the appeal shall be determined by a newly constituted tribunal. 

REASONS

	Background

4.	The applicant claimed disability living allowance (DLA) from the Department for Social Development (the Department) from 27 February 2013 on the basis of needs arising from fibromyalgia, depression, anxiety, carpal tunnel syndrome and tendonitis.  The Department obtained a report from the applicant’s general practitioner (GP) on 7 May 2013. The Department obtained a report from an Examining Medical Practitioner (EMP) on 23 August 2013.  On 10 September 2013 the Department decided on the basis of all the evidence that the applicant did not satisfy the conditions of entitlement to DLA from and including 27 February 2013.  The applicant appealed.

5.	The appeal was considered by a tribunal consisting of a legally qualified member (LQM), a medically qualified member and a disability qualified member.  After a hearing on 21 February 2014 the tribunal disallowed the appeal.  The applicant then requested a statement of reasons for the tribunal’s decision and this was issued on 8 July 2014.  The applicant applied to the LQM for leave to appeal from the decision of the appeal tribunal but leave to appeal was refused by a determination issued on 2 October 2014.  On 13 April 2015 the applicant applied to a Social Security Commissioner for leave to appeal.  The application was late.  However, on 14 September 2015 the Chief Social Security Commissioner admitted the late appeal for special reasons. 

	Grounds

6.	The applicant submits that the tribunal has erred in law on the basis that:

(i)	the tribunal did not ask her questions about how far she could walk before the onset of severe discomfort;

(ii)	the tribunal was biased against a questionnaire-style report prepared by her GP.

7.	The Department was invited to make observations on the applicant’s grounds.  Mr Donnelly of Decision Making Services (DMS) responded on behalf of the Department.  Mr Donnelly submitted that the tribunal had erred in law as alleged by making a serious accusation against the applicant without evidence.  He indicated that the Department supported the application. 

8.	On 15 October 2015, correspondence was received on the applicant’s behalf indicating that she was now represented by Ms Rogers of Law Centre NI.  Ms Rogers withdrew the applicant’s first ground. 

	The tribunal’s decision

9.	The tribunal heard oral evidence from the applicant.  It had before it the applicant’s GP records, a submission by her representative and a Departmental submission.  The representative provided a pro forma completed by the applicant’s GP.  The Department’s report included an EMP report, a GP factual report and a healthcare professional’s report for employment and support allowance.  The tribunal asked about the applicant’s mobility and care needs. 

10.	The tribunal rejected the applicant’s account of her functional limitations as exaggerated.  It preferred the report of the EMP to that of the applicant’s GP.  In explaining this preference, it stated that “the questionnaire answered by [the GP] postdates decision by some 3 months and was prepared by the representative in a manner that uses leading questions as opposed to asking [the GP] for an opinion.  Many of the questions in this questionnaire are phrased “Are you aware of any difficulty with …?”. It continues “The panel feel that following her disallowance of DLA [the applicant] has had a consultation with her GP and has told him that she does have difficulties in many areas …”. Under the heading of Mobility, the panel states “We have no doubt that the answer to question 4 – “Appellant being able to walk less than 50 metres before having to stop due to severe discomfort” was filled in after the appellant personally told [the GP] that was the precise distance she could walk before the onset of severe discomfort”. 

	Assessment

11.	The applicant has submitted that the tribunal has acted unfairly and made a finding based on no evidence that she had told her GP what to say in the questionnaire.  She denies having attended the GP in relation to the questionnaire, saying that it was sent directly from her representative to the GP and that she had not discussed the content with the GP . She submits that the questions in it are not leading questions. 

12.	From the Department’s side, Mr Donnelly has indicated his support for the application for leave to appeal.  He questions the basis of the tribunal’s finding that the applicant discussed the content of the questionnaire with her GP . He notes that the tribunal has not asked the applicant whether she visited the GP in relation to the report.  He notes that the tribunal does not refer to any relevant entry in the GP records to substantiate its finding.  He submits that the tribunal has made a “serious accusation” seemingly without evidence which has been detrimental to the applicant’s appeal.

13.	I consider that there is an arguable case and I grant leave to appeal and proceed to treat and determine the application as if it were an appeal. 

14.	Each of the parties submits that the tribunal has made a perverse finding on this issue or that it has made a procedural irregularity capable of making a material difference to the outcome of the proceedings. 

15.	I consider that the tribunal has strayed into speculation as to the circumstances in which the GP completed the questionnaire.  There is no evidence that the applicant had consulted with her GP prior to the form being completed.  However, it is evident that the weight given to the report was lessened by the tribunal’s view of what had taken place.  

16.	In the circumstances, I accept that there is merit in the submissions of the applicant and the Department.  I consider that I must allow the appeal and set aside the decision of the appeal tribunal. 

(signed):  O Stockman

Commissioner

10 March 2016