MF-v-Department for Communities (DLA) [2017] NICom 14

Decision No:  C4/16-17(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 22 February 2016

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is a claimant’s appeal from the decision of an appeal tribunal sitting at Newry.

2.	For the reasons I give below, I set aside the decision of the appeal tribunal under Article 15(7) of the Social Security Order (NI) 1998 and I direct that the appeal shall be determined by a newly constituted tribunal. 

	REASONS

	Background

3.	The appellant claimed disability living allowance (DLA) from the Department for Social Development (the Department) from 27 September 2013 and was awarded the high rate mobility component and the middle rate care component for a fixed period of two years.  She made a renewal claim from 27 September 2015 on the basis of needs arising from diabetes, depression, anxiety, chronic obstructive pulmonary disease (COPD), blood pressure problems, arthritis, back pain, insomnia, irritable bowel syndrome and eczema.  The Department obtained a report from the appellant’s general practitioner (GP).  On 28 September 2015 the Department decided on the basis of all the evidence that the appellant did not satisfy the conditions of the care component but that she was entitled to the low rate of the mobility component of DLA for a fixed period of three years.  The appellant 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.  The tribunal disallowed the appeal, maintaining the award of the low rate of the mobility component by a majority decision.  The appellant then requested a statement of reasons for the tribunal’s decision and this was issued on 19 April 2016. 

5.	The appellant applied to the LQM for leave to appeal from the decision of the appeal tribunal and leave to appeal was granted by a determination issued on 27 May 2016.  The LQM granted leave on the question of whether the tribunal’s decision was in breach of the rules of natural justice or the appellant’s right to a fair hearing under Article 6 of the European Convention on Human Rights and Fundamental Freedoms (ECHR). On 27 June 2016 the appeal was received in the Office of the Social Security Commissioners. 

	Grounds

6.	The grounds of appeal submit that the tribunal has erred in law on the basis that the tribunal based its assessment of the credibility of the appellant on discrepancies between her DLA claim form and her oral evidence to the tribunal. 

7.	The Department was directed to make observations on the appellant’s grounds.  Mr Hinton of Decision Making Services (DMS) responded on behalf of the Department.  He submitted that the tribunal had erred in law as alleged and indicated that the Department supported the appeal. 

	The tribunal’s decision

8.	The tribunal had sight of documentary material including the Departmental submission, which contained the appellant’s claim form and the GP factual report, the appellant’s medical records and letters from a senior mental health practitioner dated 16 February 2016 and GP dated 4 December 2015.  The appellant attended the hearing, accompanied by a friend and represented by Mr M...., solicitor.  The tribunal heard oral evidence from the appellant. 

9.	The tribunal noted the documentary evidence.  It aggregated the duration of the occasions for which the appellant had claimed a need for attention in her claim form.  It found that this totalled over 42 hours of care in a 24 hour cycle.  It found inconsistency between this and the oral evidence at hearing.  It considered the total of the stated needs against the GP notes and records and other sources of medical evidence, further finding that the evidence of the appellant’s GP was inconsistent between the factual report of July 2015 and her letter of December 2015.  

10.	The tribunal rejected the appeal in relation to the care component on the basis of inconsistency and lack of credibility in the appellant’s account of her own needs.  A majority of the tribunal accepted that the conditions of entitlement to the low rate mobility component were satisfied.  The minority disagreed on the basis that the appellant’s evidence was inconsistent and exaggerated. 

	Relevant legislation

11.	The legislative basis of the care component is found at section 72 of the Social Security Contributions and Benefits Act (NI) 1992 (the 1992 Act). This provides:

		72.—(1) Subject to the provisions of this Act, a person shall be entitled to the care component of a disability living allowance for any period throughout which—

			(a) he is so severely disabled physically or mentally that—

				(i) he requires in connection with his bodily functions attention from another person for a significant portion of the day (whether during a single period or a number of periods); or

(ii) he cannot prepare a cooked main meal for himself if he has the ingredients;

			(b) he is so severely disabled physically or mentally that, by day, he requires from another person—

(i) frequent attention throughout the day in connection with his bodily functions; or

(ii) continual supervision throughout the day in order to avoid substantial danger to himself or others; or

			(c) he is so severely disabled physically or mentally that, at night,—

(i) he requires from another person prolonged or repeated attention in connection with his bodily functions; or

(ii) in order to avoid substantial danger to himself or others he requires another person to be awake for a prolonged period or at frequent intervals for the purpose of watching over him.

12.	The legislative basis of the mobility component is section 73 of the same Act. This provides:

		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;

(ab) he falls within subsection (2) below;

(b) he does not fall within that subsection but does fall within subsection (2) below;

(c) he falls within subsection (3) below; or

(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.

13.	The definition of the virtually unable to walk condition is expanded in regulation 12 of the Social Security (Disability Living Allowance) Regulations (NI) 1992 (the DLA Regulations).  This provides:

	Entitlement to the mobility component

		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—

(i) he is unable to walk,

(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, or

(iii) the exertion required to walk would constitute a danger to his life or would be likely to lead to a serious deterioration in his health; …

	Submissions

14.	The appellant submits that when she completed the claim form she inserted the number 7 in relevant boxes to indicate that she needed help seven days per week, whereas the tribunal has understood her to mean seven times per day. 

15.	The appellant points to a factual error or misunderstanding on the part of the tribunal in its findings about how long the applicant stated she needed help with toileting.  The claim form clearly stated a need for help for 10 minutes, while the tribunal found this to be 5.5 hours when it aggregated toilet needs, incontinence needs, encouragement re toileting and encouragement re incontinence. 

16.	The appellant submitted that as the tribunal was of the opinion that the appellant was not a truthful witness on a false premise, the appellant had not received a fair hearing contrary to Article 6 of the ECHR. 

17.	Mr Hinton for the Department submitted that all the elements of a fair hearing were present and that Article 6 of the ECHR was not breached. 

18.	Nevertheless, he agreed that the tribunal had misunderstood aspects of the appellant’s evidence.  For example, he pointed to the tribunal’s finding that the appellant had claimed that she required encouragement for 90 minutes to get out of bed seven times per day and five times 35 minutes to be encouraged to go to bed at night, totalling 805 minutes per day.  He submitted that it was not reasonable to interpret this evidence as the tribunal had done, and that it was more credible to suggest that the appellant meant that she had the stated needs on seven and five days per week, rather than seven and five times per day as the tribunal assessed.  He agreed that similar issues arose from the tribunal’s treatment of the appellant’s evidence regarding dressing. 

19.	Mr Hinton submitted that the tribunal’s erroneous conclusions regarding the credibility of the appellant’s evidence in these areas could have led it to adopt a prejudicial view of the case. 

	Assessment

20.	Each of the parties submits that the tribunal has erred in law.  This is on the agreed basis that the tribunal has made errors of fact in its assessment of the appellant’s credibility.  In such a case it does not need to be demonstrated that the error has made a material difference to the outcome of the appeal.  It is sufficient for a party to show that it was capable of making a difference to the outcome. 

21.	An error of fact can be based on a misunderstanding that “is plain and incontrovertible and where there is no room for difference about it” (Braintree District Council v Thompson [2005] EWCA Civ 178).  I consider that the parties are correct that the tribunal has misunderstood the appellant’s evidence on her claim form.  As this was a misunderstanding of evidence going to credibility, even though the tribunal had other instances in which it rejected the appellant’s evidence, it was something capable of making a difference to the outcome. 

22.	As each of the parties submits that the tribunal has erred in law, it is expedient for me to dispose of this appeal under Article 15(7) of the Social Security (NI) Order 1998 without making a formal determination that the tribunal has erred in law. 

23.	I set aside the decision of the appeal tribunal under Article 15(7) and I direct that the appeal shall be determined by a newly constituted tribunal.

(signed) O Stockman

Commissioner

17 February 2017