RD-v-Department for Social Development (DLA) [2016] NICom 59

Decision No:  C16/16-17(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 11 September 2015

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 Coleraine.

2.	For the reasons I give below, I grant leave to appeal.  I allow the appeal and I set aside the decision of the appeal tribunal under Article 15(8)(b) of the Social Security (NI) Order 1998.  I remit the appeal to a newly constituted tribunal for determination. 

	REASONS

	Background

3.	The applicant had claimed disability living allowance (DLA) from the Department for Social Development (“the Department”) from 11 June 2008 and was awarded DLA at different rates for three successive fixed periods.  He made a renewal claim from 11 December 2014 on the basis of needs arising from gout, mental health problems and obsessive compulsive disorder (OCD).  The Department obtained a report from the applicant’s general practitioner (GP) on 3 October 2013. On 16 November 2014 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 11 December 2014.  The applicant appealed.

4.	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 11 September 2015 the tribunal disallowed the appeal.  The applicant then requested a statement of reasons for the tribunal’s decision and this was issued on 25 November 2015.  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 15 December 2015. On 29 December 2015 the applicant applied to a Social Security Commissioner for leave to appeal. 

	Grounds

5.	The applicant, represented by Ms Deans of Causeway Citizens Advice Bureau, submits that the tribunal has erred in law on the basis that:

(i)	the record of proceedings contained a material inaccuracy;

(ii)	the statement of reasons inadequately addressed the issue of the applicant’s mental health;

(iii)	it made a decision which was not supported by evidence. 

6.	The Department was invited to make observations on the applicant’s grounds. Mr Hinton of Decision Making Services (DMS) responded on behalf of the Department.  Mr Hinton submitted that the tribunal had not erred in law as alleged and indicated that the Department did not support the application. 

	The tribunal’s decision

7.	The tribunal had documentary evidence before it consisting of the Department’s submission and scheduled documents, the applicant’s GP records and previous claim papers.  The applicant attended the hearing and gave oral evidence, represented by Ms Deans. Reliance was placed on a particular letter from a psychiatrist.  The applicant described his difficulties. 

8.	The tribunal noted the previous awards of middle rate care component and low rate mobility component.  It noted evidence that the applicant was alcohol-dependent since 2004.  It noted evidence of paranoia and delusional thoughts from 2008 and OCD from 2010.  There had been a petrol bomb attack on his home in 2011.  It noted that in 2013 he was suffering from stress and anxiety.  A report from a community psychiatric nurse referred to post-traumatic stress disorder and social isolation.  

9.	The tribunal found that the applicant was living a restricted lifestyle associated with his abuse of alcohol and drugs.  It found that there was a rational basis for his anxiety, based on the previous attack on his home, and found that he does go out to places where he feels safe.  It found that the applicant had adopted his lifestyle through choice and was not in a state of disablement as required by the legislation, applying R(DLA)6/06.  It disallowed the appeal. 

	Relevant legislation

10.	The relevant legislation is principally to be found in the Social Security (Contributions and Benefits) Act (Northern Ireland) 1992. 

11.	The relevant test for the low rate mobility component appears at section 73(1), as set out below. 

	73.—(1) Subject to the provisions of this Act, a person shall be entitled to the mobility component of a disability living allowance for any period in which he is over the relevant age and throughout which—
			(d) he is able to walk but is so severely disabled physically or mentally that, disregarding any ability he may have to use routes which are familiar to him on his own, he cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time.

	Submissions

12.	I held an oral hearing of the application. Ms Deans of Citizens Advice appeared for the applicant.  Mr Hinton appeared for the Department. I am grateful to the representatives for their assistance. 

13.	Ms Deans firstly submitted that the tribunal had failed to properly deal with the letter from a consultant psychiatrist, Dr L...., which she had placed weight on.  It referred to the applicant’s chronic problems and his medical history, supportive of his stated care and mobility needs.  This was dated 16 March 2015 and reported that the applicant was chronically anxious, had panic symptoms, was anxious out of the house, was suffering from Troubles-related trauma, had avoidance phenomena, distressing recollections, nightmares and had been referred to the WAVE trauma centre. 

14.	She further submitted that the tribunal had made material errors of facts. For example, by recording that the applicant’s mother lived in Belfast, the tribunal had failed to address the element of care which she gave to the applicant.  It had further misunderstood evidence of a neighbour’s telephone call to the applicant’s doctor expressing concern over self-neglect. 

15.	She then submitted that the tribunal had failed to address the evidence of a number of psychiatric conditions requiring ongoing treatment by medication and attendance at the community mental health team which were additional to the applicant’s alcohol and drug abuse issues.  The tribunal, it was submitted, had not asked the applicant about difficulties which he would have going out of doors to unfamiliar places. 

16.	Mr Hinton indicated that he had formed the incorrect impression that the letter from Dr L.... had been handed in at hearing, but now understood that it was among the documents in the medical records.  He submitted that the tribunal should have addressed the evidence in the letter had it been handed in at hearing.  However, he submitted that the tribunal had taken an overall approach to the evidence. 

17.	He submitted that the tribunal had not fatally erred in law by misunderstanding the evidence about the place of residence of the applicant’s mother.  It felt that the applicant did not need the help claimed and that the tribunal would have reached the same conclusion. 

18.	However, he accepted that the tribunal could have asked the applicant in more detail about his ability to walk out of doors without guidance or supervision.  The evidence suggested that the applicant could go out while drunk and Mr Hinton accepted that this might not be enough to establish ability to walk out of doors.  He further accepted that the tribunal had not asked in sufficient detail about the impact of the applicant’s various conditions on him. 

	Assessment

19.	It appears to me that the issues in the present appeal are complex. The applicant has been diagnosed as suffering from a number of mental health conditions – including anxiety and paranoia.  He was also someone who abused alcohol and drugs.  He had further faced threats and his home had been subject to attack – leading to further diagnoses including Post Traumatic Stress Disorder. 

20.	The tribunal had considered the question of the lifestyle choices of the applicant with regard to alcohol.  It had further taken the view that there were rational grounds for his being anxious in the light of attacks on him. However, Mr Hinton accepts the submission of Ms Deans that the tribunal should have made more specific findings in relation to the relevant mental health conditions and specifically on issues arising from the evidence in Dr L....’s letter of January 2015. 

21.	Ms Deans had submitted that the tribunal had not addressed the issue of the needs arising from the applicant’s psychiatric conditions in any great detail.  The tribunal had said that there may be a connection between the substance abuse and the applicant’s psychoses “but this is not identified in the evidence provided”.  She submitted that more attention should have been given to the psychiatric component of the applicant’s problems, but that this was not addressed by the tribunal. 

22.	The parties were essentially in agreement that the issue of entitlement to the low rate mobility was not sufficiently addressed in the record of proceedings and the statement of reasons.   I also accept this. It appears that the tribunal had made certain findings which do not obviously arise from the evidence and that it has not had regard – beyond the issue of substance abuse - to the possible effects of his psychiatric conditions on the applicant’s ability to walk out of doors on unfamiliar routes. 

23.	While I am sympathetic to the tribunal because of the complex and difficult issues it had to address, I accept that the tribunal has erred in law on the basis of making inadequate findings of fact in the particular case. 

24.	I grant leave to appeal. I set aside the decision of the decision of the appeal tribunal on the basis of error of law.  I remit the appeal to a newly constituted tribunal for determination. 

25.	I am advised that the applicant has a new award of DLA from 16 September 2015 to 15 March 2017.  The new tribunal is therefore restricted to a consideration of the issues of entitlement between 11 December 2014 and 15 September 2015 inclusive.  

(signed)

O Stockman

Commissioner

25 August 2016