PG-v-Department for Communities (DLA) [2016] NICom 83

Decision No:  C34/16-17(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 21 January 2015

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	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 21 January 2015 is in error of law.  The error of law identified will be explained in more detail below.  I would ask the Legally Qualified Panel Member (LQPM) of the appeal tribunal to note that the issue which I have identified is marginal and that I have set aside the decision of the appeal tribunal with a degree of reluctance. 

3.	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. 

4.	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.

5.	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 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

6.	On 13 June 2014 a decision-maker of the Department decided that the applicant was not entitled to DLA from and including 10 July 2014.  An appeal against the decision dated 13 June 2014 was received in the Department on 6 August 2014.

7.	The appeal tribunal hearing took place on 21 January 2015.  The applicant was present and was not represented. There was no Departmental Presenting Officer present.  The appeal tribunal disallowed the appeal and confirmed the decision dated 13 June 2014. 

8.	On 5 May 2015 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS). On 14 May 2015 the application for leave to appeal was refused by the Legally Qualified Panel Member (LQPM).

	Proceedings before the Social Security Commissioner

9.	On 19 June 2015 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  The applicant was now represented by Mr Halleron of Madden & Finucane Solicitors. 

10.	On 11 August 2015 observations on the application for leave to appeal were requested from Decision Making Services (DMS).  In written observations dated 10 September 2015, Mr Donnelly, for DMS, opposed the application on the grounds submitted on behalf of the applicant.  Written observations were shared with the applicant and Mr Halleron on 14 September 2015.  Written observations in reply were received from Mr Halleron on 27 October 2015 and were shared with Mr Donnelly on 28 October 2015.  On 10 November 2015 a further submission was received from Mr Donnelly which was shared with Mr Halleron and the applicant on 13 November 2015. 

11.	The written observations in reply received from Mr Halleron on 27 October 2015 made reference to the wish to obtain an additional report from the appellant’s General Practitioner (GP).  On 1 February 2016 the Legal Officer forwarded an e-mail to Mr Halleron seeking clarification as to whether he wished to place a GP report before the Social Security Commissioner.  On the same date Mr Halleron replied to indicate that he did wish to obtain such a report. 

12.	On 8 February 2016 a report from the applicant’s GP was received and was shared with Mr Donnelly on 10 February 2016.  On the same date additional information was received in the office in connection with the applicant’s entitlement to employment and support allowance (ESA). 

13.	On 25 May 2016 I directed an oral hearing of the application.  The oral hearing took place on 10 May 2016.  The applicant was present and was represented by Mr McCann.  The Department was represented by Mr Donnelly. Gratitude is extended to both representatives for their detailed and constructive observations and comments.

	Errors of law

14.	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?

15.	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.” 

	The submissions of the parties

16.	In the Case Summary, prepared for the oral hearing of the application, the following submissions were made on behalf of the applicant:

‘The Tribunal relied upon the GP report, where they interpreted that walking 50-100 metres max “before having to stop,” indicated that severe discomfort did not commence until you were unable to walk at all.  “Virtually unable” as stated by R(M) 3/78 means “unable to walk to any appreciable extent or practically unable to walk.”  It is our contention that a person would be able to walk with severe discomfort albeit it would not be to any appreciable extent. 

(The applicant) in his oral evidence had indicated that he is always in severe discomfort however that 50 yards was his maximum walking limit and he would be in severe agony at that point.  Severe discomfort as defined in CDLA/1832/2002 states that severe discomfort is “discomfort that it is not reasonable to expect a claimant to endure on a day-to-day basis.”  We submit that (the applicant) fulfils this yardstick.

The Tribunal failed to consider this aspect and assumed that by the Doctor stating, “having to stop” was when the initial discomfort came upon (the applicant). CDLA/19/1994 places a duty on the tribunal to establish the extent a claimant can walk without severe discomfort to avoid an error of law due to inadequate findings.  See also CM/171/1988 in respect of short stops when walking.

In respect of (the applicant’s) application for Carers, he had stated at the hearing that he had no need for any guidance or supervision to walk outdoors and could attend to all his care needs unaided by day and night.  He described physical problems with walking outdoors and difficulty with main meal preparation, in both cases due to poor mobility.  (The applicant) had described difficulties with standing to do food preparation and stated that due to having no lateral movement and only 30 per cent of vertical movement in his ankles, he needed to hold onto something when standing and thus did not have any hands free to, for example, lift pots or food etc. “I can’t lift an oven tray because it’s heavy and I need 2 hands and then I hit the floor”.  He agreed that he could do food preparation sitting down but said that he needed to use his crutches when standing and would therefore be unable to lift or carry anything.

The medical evidence does not, in the Tribunal’s opinion, substantiate (the applicant’s) claim of being unable to stand unsupported- his GP (letter of 3.11.14) states that he “cannot stand for any prolonged periods of time without causing increased pain” which implies an inability to stand for short to moderate periods of time without undue pain and does not suggest that he would require the support of 2 crutches to stand.  While his GP adds, “he cannot stand and prepare food or cook without marked pain”, he would, we believe, be able to do most of the preparation involved in a main meal for himself sitting down and only need to stand intermittently, for brief periods. In our opinion (the applicant) could, by a combination of sitting and standing, safely and unaided prepare a cooked main meal for himself if he had the ingredients.”

It is our respectful submission that the Tribunal cannot assess the level of pain in which an applicant is suffering from standing purely from an interpretation of a GPs comment and oral evidence by the applicant on the day of hearing.

	CDLA/902/2004 has a framework for assessing the effect of pain stating that: 

	“…it is no longer rational for tribunals to reason simply from clinical findings on examination to the level of pain that a claimant experiences.  Tribunals must investigate the evidence of the claimant’s pain and explain how they have dealt with it.  As there is no direct causal link between disease or injury and pain, the only direct evidence of pain can come from the claimant. This raises potential difficulties”

To alleviate these difficulties, Commissioner Jacobs has suggested that tribunals consider the following to ascertain whether reported pain is consistent with facts.

•	Evidence of the activities undertaken by the claimant
•	The claimant’s medication
•	Other treatment or referrals actual and considered
•	Informal observations of the claimant’s functional ability and activities
•	Opinion of examining medical practitioners.

For the Tribunal to assess the level of pain in which (the applicant) suffers when standing by an implied assertion is not enough.  The Tribunal had indicated that they had considered the medical evidence and (the applicant’s) own evidence when making their decision, however this is not enough to come to an objective, impartial finding as to the level of pain in which he is suffering.  Further consideration is required as indicated above.

For these reasons, we state that the decision of the Tribunal dated 24 November 2014 is erroneous in law and a breach of natural justice.’

17.	In his Case Summary, Mr Donnelly made the following submissions in relation to the specific ground of the appeal tribunal’s findings and conclusions in respect to potential entitlement to the mobility component of DLA, and its assessment of the levels of the applicant’s pain:

‘In support of this contention reference is made to various GB Commissioners decisions namely, R(M) 3/78, CDLA/1832/2002 and CDLA/19/94.  It is the Department’s submission that whilst the tribunal acknowledged that (the applicant’s) ability to walk outdoors is restricted, it held that the GP’s assessment of his maximum walking ability (50 to 100metres) was a realistic distance as to how far he could walk before stopping because of severe discomfort.  The tribunal held that this would not entitle (the applicant) to the higher rate of mobility.  Despite the case law cited above, the Department continue to submit that the tribunal have not erred in law as contended regarding the higher rate of the mobility component, and in particular the issue of severe discomfort. 

It is contended that it was not enough for a tribunal to use an implied assertion of level of pain.  Reference is made to GB Decision CDLA/902/2004, in which Commissioner Jacobs laid down a framework for assessing the effect of pain. 

The tribunal had direct evidence concerning the level of pain of (the applicant) in the form of a review undertaken in July 2013 and again in a review in August 2013 which indicated that the only problems (the applicant) had was when coming downstairs.  

This evidence implicitly refers to (the applicant’s) description of his own level of pain as minimal.  It therefore stands that the tribunal cannot be accused of using an “implied assertion” of a level of pain, as contended.

Subsequently, it is submitted that CDLA/902/2004 is not relative to the current circumstances.’

18.	In his further oral submissions, Mr McCann expanded on the written arguments set out in the Case Summary.  He made reference to a further medical report dated 23 October 2015 from the appellant’s GP which had been adduced by one of his colleagues in connection with the proceedings before me.  He noted that in this correspondence the GP had stated:

‘The above named patient of mine has severe problems in his right knee at present. This is in addition to severe ankle pain and stiffness which has occurred as a result of injuries sustained in a RTA in Dec 1992.  His lifestyle has been markedly restricted at all times as a result.  He has ongoing pains in his joints, worsened by any weight bearing activity.  He cannot walk more than 50 yards without stopping but does have a constant debilitating pain in his joints.  He will as a result struggle with any weight bearing personal activities and his quality is affected in [sic] an ongoing basis.  He has a high pain threshold and doesn’t complain but does find his symptoms exceptionally intrusive.  I would fully support him in his claim for DLA and am surprised he hasn’t been awarded it.’

19.	Mr McCann noted the reference to the appellant’s maximum walking distance as being fifty yards.  He also referred to the medication which the appellant took for his pain and noted that the appellant had to take his medication in a measured manner.  He conceded that the appeal tribunal had accepted that the appellant’s mobility was compromised but argued that the appeal tribunal had misinterpreted the evidence which was before them.  The appeal tribunal’s overall findings and conclusions in respect of the appellant’s mobility did not reflect the true picture which was that the appellant was in severe discomfort at all times.  Mr McCann submitted that the appellant satisfied the threshold for fulfilling the condition of being virtually unable to walk as set out in the relevant jurisprudence. 

20.	Finally, Mr McCann noted that the appellant had been notified in January 2015 of a change in his entitlement to ESA.  The appellant had been informed that it had been determined that he had limited capability for work-related activity and had moved to the ‘support’ group.  Mr McCann accepted that he did not have a copy of the relevant ESA decision in his papers but had been informed that part of the assessment involved an acceptance that the appellant’s mobility was limited.  Mr McCann submitted that an assessment in respect of ESA could and should be taken into account in connection with an assessment in respect of entitlement to DLA.

21.	In his helpful oral submissions, Mr Donnelly noted that there was a discrepancy between what had been recorded by the appellant’s GP in a Factual Report dated 25 May 2014 and in the further report dated 3 November 2014.  Mr Donnelly noted that the appeal tribunal had accepted that the appellant’s mobility was significantly compromised and that there would have been periods in the past when his mobility would probably have been sufficiently limited to merit an award of entitlement to the higher rate of the mobility component of DLA.  Mr Donnelly submitted that the appeal tribunal had given full consideration to all of the evidence which was before it and had applied, in the correct manner, the legislative tests with respect to the mobility component of DLA.  Finally, Mr Donnelly submitted that ESA and DLA were different social security benefits with different conditions of entitlement.  Entitlement to one benefit did not mean an automatic entitlement to the other.

	What did the appeal tribunal decide in connection with the higher rate of the mobility component of DLA?

22.	The appeal tribunal has recorded the following in the statement of reasons for its decision:

‘With regard to the mobility component, we accept that his mobility outdoors is significantly compromised – his GP (letter 3.11.14) refers to a “very reduced exercise tolerance of 50 to 100 metres max before having to stop” and we accept this to be the case.  While he uses crutches or a stick to do so, there is no suggestion that he is not weight bearing through his legs when walking and in fact his GP states that he walks with a limp, confirming that weight is being borne through the lower limbs. Although (the appellant) describes being unable to walk any distance without “serious discomfort”, we consider that the GP’s assessment of 50 to 100 metres as his maximum walking ability provides a more realistic indication of the distance he can walk without being stopped by severe discomfort.  There were some claims made by (the appellant) in his self-assessment form, which were totally unsubstantiated by any medical evidence … which we did not find in the light of all of the evidence available, to have any credibility and which suggested to us, a tendency on his part to exaggerate. We therefore preferred to accept the GP’s assessment of his walking ability as stated in the letter of 3.11.14 and, while we acknowledge that his ability to walk outdoors is greatly restricted, he is not, in our opinion, based on the description of walking ability noted by the GP, either unable or virtually unable to walk.’

23.	As was noted above, the appeal tribunal then went on to discuss whether the appellant would have satisfied the conditions of entitlement to the higher rate of the mobility component in the past, and concluded, that it was likely that he would have satisfied those conditions.                      

	Analysis

24.	In paragraph 19 of her decision in R(DLA) 4/03 the Social Security Commissioner in Great Britain (and former Deputy Commissioner in Northern Ireland) stated the following:

‘Perhaps the most litigated area in social security law is the test set out in regulation 12(1)(a)(ii) of the Social Security (Disability Living Allowance) Regulations 1991. The test is expressed in relatively few words contrasted with what has been extensively argued and written on its meaning and application in fact and in law.’

25.	Regulation 12(1)(a)(ii) of the 1991 Regulations in Great Britain is in identical terms to regulation 12(1)(a)(ii) of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992, as amended.  It is in the following terms:

‘12.—(1) A person is to be taken to satisfy the conditions mentioned in section 73(1)(a) (unable or virtually unable to walk) only in the following circumstances—

(a) his physical condition as a whole is such that, without having regard to circumstances peculiar to that person as to place of residence or as to place of, or nature of, employment—

		(ii) his ability to walk out of doors is so limited, as regards the distance over which or the speed at which or the length of time for which or the manner in which he can make progress on foot without severe discomfort, that he is virtually unable to walk …’ 

26.	The reference to section 73(1)(a) is, of course to that paragraph in the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, which is in the following terms:

‘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—

(a) he is suffering from physical disablement such that he is either unable to walk or virtually unable to do so;’
 
27.	In paragraphs 20 to 25 of her decision in R(DLA) 4/03, the Social Security Commissioner set out the principles to be applied when an adjudicating authority was considering ‘virtual inability to walk’ and, more significantly, the relevance of the factor of ‘severe discomfort.’ It is worth replicating her remarks in full:

‘20.I deduce the following propositions from the case law with respect to regulation 12(1)(a)(ii):
(1)	R(M) 1/81 establishes that the adjudicator evaluates the restrictions (if any) on the claimant’s ability to walk out of doors without severe discomfort, whether the limitations are in respect of distance, speed, length of time or manner.
(2)	The relevant question is how far the claimant is limited in walking without suffering severe discomfort rather than before severe discomfort begins to set in. As Mr Commissioner Howell QC put it in CDLA/608/1994 at paragraph 15:
“An ability to walk 50 yards which can only be accomplished at the expense of the onset of pain amounting to severe discomfort for some time afterwards is not an ability to walk without severe discomfort, even if the pain does not begin in real earnest until the end of the 50 yards.”
(3)	It is an error of law to equate the onset of severe discomfort with the point at which the claimant stops walking.  Walking which gives rise to severe discomfort is discounted.  If a claimant walks 100 yards of which the last 10 are after the onset of severe discomfort, he must be judged as if the distance he walks at that stage is the farthest distance he can go without such a result, which could be 80 yards only.  When he stops is evidentially relevant to determining what are a claimant’s real limitations but, as Mr Commissioner Jacobs pointed out in CDLA/1389/1997, at paragraph 50(d):
“a claimant may cover only a particular distance because there is no need or reason to go any further.  For example, a claimant may only walk 20 yards because that is the distance to the shop where the claimant buys a newspaper before returning home to read it.”
(4)	Rests which a claimant is forced to take from time to time before continuing to walk must be included when calculating “the length of time” the claimant takes to walk a particular distance.  Otherwise, as Mr Commissioner Rowland points out in CDLA/805/1994, there would be little purpose in regulation 12(1)(a)(ii) including the three separate factors of speed, distance and time as the first is a function of the last two.
(5) 	Mr Commissioner Rowland follows the same approach in CDLA/4388/1999 and, more recently, in CDLA/2050/2002.  In the latter cited case he makes the particular point that a tribunal must consider, where a claimant pauses, whether he can “walk further or whether that really was the absolute limit of the claimant’s capacity to walk” (paragraph 17).
(6)	In CDLA/6104/1999, Deputy Commissioner Newsome at paragraph 8 makes the valuable point:
“It may be the case that a claimant rests at a particular point because he is already in severe discomfort or because he will immediately be in such discomfort if he continues or because he is able to pace himself in such a way that if he rests at particular intervals even though the threat of severe discomfort is nowhere near imminent he will be able to progress some considerable distance before such a threat materialises.  It is in connection with the latter alternative that the pace or speed of walking becomes highly relevant in assessing whether the claimant can be taken to be virtually unable to walk.”
21.	None of the above cases nor those cited in argument directly answer the question before me. However, the statutory wording makes clear that the focus of whether a person is “virtually unable to walk” under regulation 12(1)(a)(ii) is on the limitations imposed by the claimant’s physical condition as a whole on an ability to make progress on foot out of doors.  This judgement of fact and degree is, as Mr Commissioner Howell QC said in CDLA/608/1994 (at paragraph 13) “intended to be a broad one”.
22.	All the aspects of a claimant’s walking are to be considered which result from physical disablement and an evaluation of its quality is then made.  This is on the basis that firstly, walking achieved only with severe discomfort is discounted and secondly, that a tribunal must pay appropriate regard to manner, speed, distance and time.  This exercise is carried out with the purpose of determining whether, taken overall, the claimant’s walking out of doors is properly described as “virtually unable to walk”.
23.	If a stop is the absolute limit of the claimant’s capacity to walk then no issue of taking the test only to the first onset of severe discomfort arises. But if a claimant recovers after a period of rest and continues walking without severe discomfort, then the statutory test does not preclude such continued walking from being assessed.  The tribunal must judge from the evidence such relevant factors as how far the claimant can initially walk without experiencing severe discomfort, how long any severe discomfort lasts before it subsides or, if he has paused to prevent such discomfort then the necessary duration of that pause, how frequently these halts recur if at all, and what is the total distance and time he can walk in this manner without severe discomfort.
24.	Time, speed, manner and distance of walking, achieved without severe discomfort, are therefore balanced in order to reach an overall judgement on whether the claimant is virtually unable to walk. If a claimant has to rest an hour between each set of walking before severe discomfort subsides, he or she is more likely to be virtually unable to walk than a claimant who requires only 5 minutes. Conversely, if a claimant with morning stiffness through rheumatoid arthritis walks the first minute out of doors in severe discomfort, stops for 4 minutes in order to flex his limbs and thereafter is enabled to walk 10 miles without severe discomfort at a reasonable pace and speed and without further halts, the statutory criteria do not prevent a conclusion which is in no way perverse, that such a claimant does not fall within regulation 12(1)(a)(ii).
25.	All of these are matters for the good sense of tribunals.  It is not, however, the law that only walking to a first halt required through severe discomfort is relevant. This adds an unjustifiable gloss to the statutory criteria given the broad purpose of the test under regulation 12(1)(a)(ii), which is to establish the practical limitations on a person’s ability to walk due to the stated factors.’

28.	I accept and adopt this reasoning in a reported decision of the former Social Security Commissioners in Great Britain.  The emphasis in the paragraphs set out above is my own.  I have added that emphasis because I am not certain that the appeal tribunal in the instant case, in arriving at its conclusions on the relevance of ‘severe discomfort’, has applied the correct test.  I say ‘not certain’ because it may be the case that the appeal tribunal had the correct test in mind and the phrasing in the statement of reasons is more inelegant than substantively wrong.  There is, however, sufficient doubt in my mind to permit the decision to stand.

29.	The appeal tribunal has accepted the assessment of the appellant’s walking ability as set out in the medical report prepared by the GP on 3 November 2014.  There is one aspect of the appeal tribunal’s acceptance of the GP report to which I will return below.  For the moment, however the key phrase in the report which influenced the appeal tribunal’s reasoning was as follows:
‘He has a very reduced exercise tolerance – currently 50-100 metres max before having to stop.’

30.	As was noted above, the appeal tribunal has adopted that into its reasoning as follows:
‘we consider that the GP’s assessment of 50 to 100 metres as his maximum walking ability provides a more realistic indication of the distance he can walk before being stopped by severe discomfort.’ 

31.	It is the latter highlighted aspect of the reasoning which is either clumsy in its phrasing or represents an application of the wrong test. The cited part of the reasoning followed immediately from the appeal tribunal’s assessment of the appellant’s evidence that he was unable to walk any distance without what the appeal tribunal has described as ‘serious discomfort’.  As was noted above, the appeal tribunal rejected the appellant’s evidence as lacking in credibility or exaggerated.  It may be the case, therefore, that the appeal tribunal had concluded that there was no question of severe discomfort arising until the appellant had achieved the distance referred to by the GP.  I have noted, however, that in the record of proceedings for the appeal tribunal hearing, the appellant gave evidence that a distance of 50 yards would be the maximum he would undertake and that he would be in ‘severe agony’ at 50 metres. In light of the other evidence concerning limping and the requirement to utilise a mobility aid I am of the view that further exploration of the issue of distance was required, and in line with the other legislative factors of time, speed and manner.

32.	The issue is marginal but it seems to me that there is sufficient doubt in the manner in which the appeal tribunal has expressed itself that it had mind the proper principles on the relevance of the factor of ‘severe discomfort’ when considering ‘virtual inability to walk’ as set out in R(DLA) 4/03.  With an element of reluctance, therefore, I am setting aside the decision of the appeal tribunal. 

33.	As was noted above, there is one aspect of the appeal tribunal’s acceptance of the GP report of 3 November 2014 to which I have to return.  The decision under appeal to the appeal tribunal was a Departmental decision of 13 June 2014.  The GP report of 3 November 2014 was adduced in connection with the appeal tribunal proceedings but obviously post-dates the decision under appeal.

34.	In AR-v-Department for Social Development (IB) [2010] NICom06 (C2/10-11(IB)), I indicated that an appeal tribunal should consider any evidence which post-dates the decision under appeal in line with the principles set out in R(DLA) 2/01, R(DLA) 3/01 (DLA) and C24/03-04(DLA).  In paragraph 43 I cited the following extract from paragraph 9 of the decision of Commissioner Jacobs in R(DLA) 2/01 – 

‘If evidence is written or given after the date of the decision under appeal, the tribunal must determine the time to which it relates.  If it relates to the relevant period, it is admissible.  If it relates to a later time it is not admissible.’

and in paragraph 44, and in the circumstances of that case, I found that: 

‘I cannot see, from the statement of reasons for the appeal tribunal’s decision that the appeal tribunal has endeavoured to make findings concerning the relation of the evidence which post-dated the decision under appeal to the period under its consideration – that is the period up to the date of the decision under appeal.’

35.	It is arguable that the appeal tribunal in the instant case has fallen into the same trap and has made findings, having adopted evidence which post-dated the decision under appeal, without relating that evidence, and consequent findings, to the period under its consideration.  I would note, however, that I would not necessarily have found the decision of the appeal tribunal to be in error of law on the basis of this issue alone.

36.	I have given consideration to the submission made by Mr McCann concerning the relevance of the change in appellant’s entitlement to ESA in the form of a determination that the appellant had limited capability for work-related activity and had moved to the ‘support’ group.  During the course of the oral hearing, Mr McCann accepted that he did not have a copy of the relevant ESA decision in his papers.  I have noted, however, that the appellant was informed of the change in his entitlement through correspondence dated 29 January 2016. 

37.	It is axiomatic that an appeal tribunal cannot be faulted for failing to consider evidence, including medical evidence, which was not before it.  The same principle applies to the additional medical report, dated 23 October 2015 which was forwarded to the Office of the Social Security Commissioners, as part of the present proceedings.  In paragraph 7 of unreported decision A63/95(DLA) the then Northern Ireland Chief Commissioner stated:

‘It is, moreover of no assistance to a claimant to submit further evidence to the Commissioner in an attempt to demonstrate that a particular finding was incorrect.  A Tribunal can clearly not be faulted for failing to take account of evidence which was not made available at the hearing’

38.	In addition, I remind myself, of course, that there are considerable differences between the conditions of entitlement to DLA and ESA. It is also important to note that, as a general rule, entitlement to one social security benefit is not an automatic passport to entitlement to another.  It is for decision-makers and other adjudicating authorities such as an appeal tribunal, to be satisfied that the legislative conditions for entitlement to an individual benefit are satisfied. 

	Disposal

39.	The decision of the appeal tribunal dated 21 January 2015 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. 

40.	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 13 June 2014, which decided that the applicant was not entitled to DLA from and including 10 July 2014;

(ii) the Department is directed to provide details of any subsequent claims to Disability Living Allowance 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);

(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. The appeal tribunal should consider any evidence which post-dates the decision under appeal in line with the principles set out in R(DLA) 2/01, R(DLA) 3/01 (DLA), C24/03-04(DLA) and AR-v-Department for Social Development (IB) [2010] NICom06 (C2/10-11(IB)).

(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

21 December 2016