AER-v-Department for Social Development (AA) [2016] NICom 58

Decision No:  C1/15-16(AA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

ATTENDANCE ALLOWANCE

Appeal to a Social Security Commissioner
on a question of law from a tribunal's decision
dated 19 May 2014

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 19 May 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. 

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. 

3.	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.

4.	It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of his entitlement to attendance allowance (AA) 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

5.	On 21 November 2013 a decision-maker of the Department decided that the appellant was not entitled to AA from and including 25 January 2014. An appeal against the decision dated 21 November 2013 was received in the Department on 6 December 2013.

6.	Following an earlier postponement at the request of the appellant, the substantive oral hearing of the appeal took place on 19 May 2014.  The appellant was present and was accompanied by his wife. There was a Departmental Presenting Officer present.  The appeal tribunal disallowed the appeal and confirmed the decision dated 21 November 2013.

7.	On 13 June 2014 correspondence from the appellant was received in the Appeals Service (TAS). On 30 June 2014 the Legally Qualified Panel Member (LQPM) determined that the correspondence should be treated as an application for leave to appeal to the Social Security Commissioner.  On 8 November 2014 a further application for leave to appeal was received in TAS. On 4 December 2014 the application for leave to appeal was refused by the LQPM.

	Proceedings before the Social Security Commissioner

8.	On 8 January 2015 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 5 February 2015 observations on the application for leave to appeal were sought from Decision Making services (DMS).  In written observations dated 24 February 2015, Mr Culbert, for DMS, opposed the application on the grounds submitted by the appellant.  Written observations were shared with the appellant on 25 February 2015 and he was invited to make observations in reply.  Reminder correspondence was forwarded to the appellant on 25 March 2015 and 6 May 2015.

9.	On 10 November 2015, a Deputy Social Security Commissioner granted leave to appeal in the following terms:

‘Having considered the claimant’s stated grounds and the response to them by the Department for Social Development (Decision Making Services) I grant him leave to appeal.  The claimant’s ground of appeal that the tribunal should have dealt specifically in their Statement of Reasons with his contention that the EMP’s examination was rushed before their reasoning can be considered adequate is arguable.  The grant of leave to appeal should not be taken as an indication of eventual success in the appeal itself.’

10.	On 23 November 2015 I directed an oral hearing of the appeal.  The oral hearing was initially arranged for 12 January 2016 but was postponed at the request of the appellant.  The oral hearing eventually took place on 25 February 2016.  The appellant was present.  The Department was represented by Mr Culbert. I am grateful to them both for their oral and written submissions.

	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.	The first ground of appeal which was advanced by the appellant was as follows:

‘The doctor who visited my home to examine me literally flew through her agenda (I was her last call of the day and she had changed my appointment time stating “Your home is near my hotel and I will pop in to see you on my way there”) 

14.	As was noted above, it was in connection with this ground that the Deputy Social Security Commissioner granted leave to appeal.

15.	In his letter of appeal against the Departmental decision of 21 November 2013 the appellant made the following submission:

‘However I am obliged to inform you that I was totally surprized by the decision to cease the ‘Attendance Allowance’ payment which had been awarded to me.

I was particularly surprized since I was recently examined by a doctor appointed by your office (11th November 2013) who was made aware of the continued deterioration of my medical condition.  I would point out that throughout this medical examination the doctor appeared to be more concerned with rapidly completing a check-list and never attempted to ascertain the actual level of pain that I am constantly experiencing.’

16.	The examination to which the appellant is making reference is one which was conducted on 11 November 2013 by an Examining Medical Practitioner (EMP) on behalf of the Department.  A report of the examination was attached to the original appeal submission as Tab No 2. 

17.	In the record of proceedings for the appeal tribunal hearing the following is recorded:

‘He was surprised the EMP flew through a check list.  The EMP telephoned him to ask could she visit him late in the afternoon. Feels her examination and check list was fast.’

18.	In the statement of reasons for the appeal tribunal’s decision, there are the following references to the report of the examination conducted by the EMP:

‘On receipt of this form the Department arranged for (the appellant) to be examined by an EMP.  The examination occurred on 11th November 2013 and on 21 November 2013 the Department made a determination that (the appellant’s) Attendance Allowance should be disallowed from 25th January 2014.

The Tribunal at today’s hearing believe the evidence given by the appellant to be overstated and in no way confirmed either by way of the EMP examination or indeed the GP records.

We believe given the clinical findings of the EMP indicating full function in right upper limb and full function in the left arm with the exception of a slight impairment affecting his left elbow and with full function in both lower limbs with only slight impairment in both knees that (the appellant) should be able to attend to the majority of his bodily functions unaided.

We cannot overlook the fact that the only problem (the appellant’s) own GP, Dr O’D identifies is assistance dressing/undressing – consistent with the EMP assessment.’

19.	Two points emerge from this. The first is that the appeal tribunal has relied on the contents of the report of the examination by the EMP as part of its evidential assessment, fact-finding and reasoning.  The second is that the appeal tribunal has not addressed the issues raised by the appellant about the manner in which the examination leading to the report was conducted.

20.	In R3/01(IB)(T), a Tribunal of Commissioners stated the following at paragraphs 17 to 20:

‘17.	We are in agreement with both representatives that the reasoning is inadequate in this case.  The claimant set out a very detailed submission in the appeal letter which was referred to again at the Tribunal hearing as to claimed inaccuracies in the Examining Doctor’s report.  This was obviously a live issue in the case.  It was equally obvious that the Tribunal did not accept the Examining Doctor’s report in full.  However, it was a substantial and particularised part of the claimant’s argument that the observations of the Examining Doctor and indeed his clinical findings were inaccurate.  The Tribunal has not commented in any way on these contentions made by the claimant and, in a situation where it may well be (though the reasoning is not clear in that respect) that the Tribunal relied to some extent at least on the Examining Doctor’s observations and report, it has not adequately addressed the claimant’s contentions.

18.	We consider that in this particular decision a reasonable person reading the decision would not find the reasons sufficient to explain it.  A very substantial part of the claimant’s submission was not addressed.

19.	In general terms we would recommend to Tribunals the practice of identifying the issues which are specifically and expressly or by clear implication raised by the appeal letter.  Often there will be no specific issues raised other than that the claimant disagrees with the decision or considers it to be wrong with no reasons given.  In other cases grounds of complaint will be put forward but will be worded in vague or very general terms. For example, that the time allowed was insufficient or that the doctor concerned lacked competence. In all such cases the Tribunal by hearing the case will adequately deal with the appeal.  That was not so in this case.  Here very specific issues were raised.

20.	Whether or not a Tribunal accepts a claimant’s representations on an Examining Doctor’s report, whether it considers that any further information is necessary or whether an Examining Doctor should be asked for comment are all matters within a Tribunal’s province and a Tribunal has considerable discretion in this matter.  However, here it appears that issues raised expressly by the claimant were ignored.  It may be that in this case the Tribunal did not place any reliance whatsoever on the Examining Doctor’s report.  It may be that it rejected the claimant’s contentions.  We have no means of knowing.  We consider that in this case, when such very specific issues in relation to the report have been raised, the Tribunal should have commented on them in some manner.  We set the decision aside for the reason that it did not deal with this issue and the decision was not therefore understandable.’

21.	The decision in R3/01(IB)(T) was reported in what were then the reports of the decisions of the Social Security Commissioners (now the Administrative Appeal Reports).  As a decision on a question of significant legal principle, it is binding on decision-makers and appeal tribunals. As a reported decision it has greater prominence in having decided difficult issues, contributed to the coherent operation of the law and, most significantly, provided practical guidance to decision-makers and appeal tribunals. 

22.	In the instant case, as in R3/01(IB)(T), the manner in which the examination by the EMP was conducted was a live issue.  Equally, as in that case, the appeal tribunal in the instant case ‘ has not commented in any way on these contentions made by the claimant and, in a situation where … the Tribunal relied to some extent at least on the Examining Doctor’s observations and report, it has not adequately addressed the claimant’s contentions.’  The issue having been raised by the appellant meant that the appeal tribunal was under a duty to consider it.  That required the appeal tribunal to acknowledge, in its statement of reasons that the issue was considered by the appeal tribunal. It required, in addition, the appeal tribunal to follow the clear guidance which was set out by the Tribunal of Commissioners in paragraphs 19 to 20 of its decision and which remains apposite.  I have to conclude that as in R3/01(IB)(T), the reasoning of the appeal tribunal, by failing to address a live issue in the appeal, is inadequate.  The decision of the appeal tribunal is, accordingly, in error of law. 

23.	I have to acknowledge that in his written observations on the application for leave to appeal, Mr Culbert has made reference to the decision of Mrs Commissioner Brown in C12/03-04 (DLA). In paragraph 34 of her decision, she stated:

‘... I would emphasize that the weight to be given to any piece of evidence is for the Tribunal.  The Tribunal in this case relied on the EMP’s report.  This addressed the conditions for entitlement to DLA and the Tribunal was entitled to rely on it.  As regards Mr C…’s contention that the EMP’s report should not be relied on as it was based on a brief assessment, I can see no legal merit in that argument.  The Tribunal is entitled to give such weight as it sees fit to the evidence.  In any event the overall assessment took ½ hour, a history was taken and signed, an examination was carried out and observations made. Mere briefness is not of itself a ground for rejecting a report but the report and assessment time overall does not in any way appear brief ...’

24.	I would emphasise that the decision of Mrs Commissioner Brown remains good law and that there is no inconsistency between what she stated and the principles to be derived from R3/01(IB)(T).  The resolution of the two decisions is that while ‘mere briefness is not a ground for rejecting a report’ (C12/03-04 (DLA)) where there is a challenge to the manner in which an examination was conducted or the contents of the report of an examination then such a challenge has to be addressed by an adjudicating authority (R3/01(IB)(T)).

25.	Having found that the decision of the appeal tribunal is in error of law on the basis of his first submitted ground, I do not have to address, in detail, the other grounds raised by the appellant.  I would state, however, that I would not have found the decision of the appeal tribunal to be in error of law on the basis of those additional grounds.

	Disposal     

26.	The decision of the appeal tribunal dated 19 May 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. 

27.	I direct that the parties to the proceedings and the newly constituted appeal tribunal take into account the following:

the decision under appeal is a decision of the Department, dated 21 November 2013, which decided that the appellant was not entitled to AA from and including 25 January 2014;

		(i) at the oral hearing of the appeal before me, the appellant indicated that he has not made any further claims to AA. Nonetheless, and in case that position has changed, the Department is directed to provide details of any subsequent claims 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 Disability Living Allowance into account in line with the principles set out in C20/04-05(DLA);

		(ii) 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 

		(iii) 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

18 August 2016