DH-v-Department for Communities (DLA) [2017] NICom 3

Decision No:  C36/14-15(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 19 September 2013

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 19 September 2013 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 her entitlement to disability living allowance (DLA), for a particular period, 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.	The appellant made an application to DLA from and including 6 September 2010.  On 5 January 2011 a decision maker of the Department decided that the appellant was not entitled to DLA from and including the date of claim. An appeal against the decision dated 5 January 2011 was received in the Department on 18 January 2011. 

6.	On 9 September 2011 an appeal tribunal disallowed the appeal and confirmed the decision dated 5 January 2011.  The appellant sought leave to appeal to the Social Security Commissioner and in a decision dated 6 February 2013 Mr Commissioner Stockman allowed the appeal and remitted the appeal to a newly constituted appeal tribunal for determination.

7.	In the meantime another decision maker of the Department decided on 11 October 2012 that the appellant was not entitled to DLA from and including 5 September 2012.  This decision was made following receipt of further self-assessment forms from the appellant.

8.	In light of the further decision dated 11 October 2012, the appeal tribunal to which Mr Commissioner Stockman had remitted the appeal against the Departmental decision of 5 January 2011 was limited in its jurisdiction to the period from 6 September 2010 to 4 September 2012.

9.	The further appeal against the Departmental decision of 5 January 2011 took place on 19 September 2013.  The appellant was present and was represented.  There was a Departmental representative present.  The appeal tribunal disallowed the appeal and confirmed that the appellant was not entitled to either component of DLA from 6 September 2010 to 4 September 2012.

10.	On 11 April 2014 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS) from the appellant’s then representative, Mrs Carty of the Law Centre (Northern Ireland).  On 23 April 2014 the application for leave to appeal was refused by the Legally Qualified Panel Member (LQPM).  

	Proceedings before the Social Security Commissioner

11.	On 20 May 2014 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 18 August 2014 observations on the application were requested from Decision Making Services (DMS).  In written observations dated 29 August 2014, Mr Kirk, for DMS, opposed the application on the grounds advanced on behalf of the appellant.

12.	Written observations were shared with the appellant and Mrs Carty on 5 September 2014.  Written observations in reply were received from Mrs Carty on 6 October 2014 which were shared with Mr Kirk on 28 January 2015.  

13.	On 29 January 2015 I granted leave to appeal. In granting leave to appeal I gave as a reason that an arguable issue arose as to the manner in which the appeal tribunal applied the provisions in section 72(1)(a)(ii) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended.  On the same date I directed an oral hearing of the appeal. 

14.	The oral hearing was originally listed for 10 March 2015. 

15.	On 16 February 2015 correspondence was received from Mrs Carty in which she made an application for a direction to be made by me requiring the appellant’s General Practitioner (GP) records to be made available for consideration at the oral hearing.  The application for a direction was acknowledged by the Legal Officer on 19 February 2015 and Mrs Carty was advised that I had directed that the application be forwarded to the Department for its observations.

16.	On 19 February 2015 the application for a direction was forwarded to Mr Kirk with a request for written observations.  On the same date and using the powers set out in regulation 5(2)(b) of the Social Security Commissioners (Procedure) Regulations 1999, as amended, I directed that the oral hearing of the appeal listed for 10 March 2015 be postponed.

17.	On 27 February 2015 written observations on the application for a direction were received from Mr Kirk together with his Case Summary on the substantive issues arising in the appeal. 

18.	On 18 June 2015 I determined that the application for a direction in connection with the appellant’s GP notes should be refused.  My determination to that effect was forwarded to the parties on the same date. On 15 July 2015 correspondence was received from Mrs Carty in connection with the availability of the GP records.  On 8 September 2015 Mrs Carty was requested to provide an update on the matter. 

19.	On 21 September 2015 Mrs Carty forwarded extracts from the appellant’s GP records which, she submitted, contained the evidence which was referred to by the appeal tribunal as relevant to the appeal.  On 28 October 2015 the Legal Officer wrote to Mrs Carty seeking confirmation that the appellant consented to the release to DMS of the extracts from her GP records.  A further letter to that effect was forwarded to Mrs Carty on 13 November 2015.  On the same date a reply was received from her to indicate that the appellant did consent to the release of her notes to DMS. The relevant extracts were forwarded to Mr Kirk on 27 January 2016. 

20.	The appeal was relisted for oral hearing on 12 May 2016.  The appellant was not present but was represented by Mrs Carty.  The Department was represented by Mr Kirk. I am grateful to both representatives for their cogent and persuasive oral and written submissions.

	Errors of law

21.	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?

22.	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

23.	In the Case Summary prepared for the oral hearing of the appeal, Mrs Carty submitted that the decision of the appeal tribunal was in error of law on the basis of two arguable grounds.  The first of these was as follows:

‘The tribunal drew up a lengthy statement of reasons for its decision.  It placed considerable weight on the report of the EMP and commented that it was, “based on clinical findings, history and observations.”  The EMP stated that in his opinion (the appellant) could only safely with someone’s help cope with hot pans, due to poor memory and also use a traditional cooker, due to low back pain and memory.

It is submitted that the tribunal has erred in finding that (the appellant) “was capable of performing all the tasks involved in the preparation of a cooked meal for one, safely and unaided”.  This was not a finding that was supported by the EMP report upon which the tribunal had placed much weight.  The tribunal refers to the report of the GP which does not contradict the report of the EMP. 

It is submitted that the ability to cope with hot pans and to use a traditional cooker are key considerations in the application of the cooking test.’

24.	During the course of the oral hearing of the appeal, Mrs Carty expanded on these arguments.  She repeated that there was evidence in the report of the Examining Medical Practitioner (EMP) dated 16 December 2010.  More specifically, she referred to the entries made by the EMP on page 29 of the relevant report and in response to question 17.  She asserted that this evidence was supportive of the appellant’s own evidence and was not contradicted by the responses made by the appellant’s GP in the Factual Report dated 24 November 2010.  She submitted that while the appeal tribunal had clearly taken time over the preparation of the lengthy statement of reasons its error was in how it had explained its assessment of the evidence and its decision based on that assessment.   

25.	In his Case Summary Mr Kirk responded to this ground, as follows:

‘… Whilst it is correct to state that the EMP had indicated that (the appellant) would have problems coping with hot pans and bending due to back pain it is not unreasonable to find that the EMP was indicating that it was difficulty bending to use an oven that inhibited her ability to prepare a cooked main meal.  It is established case law that difficulty bending to use an oven is not an essential part of the main meal test  In addition I would state that the main meal test does not involve the manipulation of hot pans nor is it necessary to consider if the claimant could use a traditional cooker only.

Taking all of the above into account I would continue to submit that the tribunal had correctly applied the legislation and case law relating to the main meal test and was correct to find that (the appellant) did not satisfy the test.’

26.	In his oral submissions at the hearing of the appeal, Mr Kirk accepted that it could be said that there was a contradiction in the reasoning of the appeal tribunal.  He stated that the appeal tribunal had made very general statements concerning the weight to be attached to the evidence within the EMP report and then refuted that evidence in aspects at a later stage in its reasoning.  He submitted that the lay person might not understand the reasoning of the appeal tribunal when reading it in the manner in which it had been set out.

	What did the appeal tribunal decide?

27.	In connection with potential entitlement to the lowest rate of the care component of DLA, based on satisfaction of the test in section 72(1)(a)(ii) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, the appeal tribunal set out the following reasoning:

‘The report from General Practitioner (GP) dated 24/11/10 confirmed that the appellant had ME and Chronic Fatigue Syndrome (in excess of 10 years), Menieres disease and generalised anxiety disorder (both since 2005). With regard to the appellant’s ability to self-care, Dr … indicated that day to day activities were affected by chronic joint pain and stiffness in her muscles and joints and that fatigue limited her exercise tolerance. Dr … indicated that the appellant was frustrated with her physical symptoms and found them stressful and restrictive in all her activities.  The GP gave no evidence that the appellant suffered from confusion, impaired judgement or self-neglect.  The Tribunal accept the evidence of Dr … but considered that the report was not sufficiently detailed to support a finding that the appellant needed help specifically in relation to bodily functions or that she had supervision needs to such an extent that the conditions of entitlement to the care component of DLA were satisfied. 

Insofar as there was any conflict of evidence, the Tribunal preferred the evidence of the EMP.  The Tribunal believed that the medical evidence from the Examining Medical Practitioner provided a more accurate indication of the appellant’s care and supervision needs.  The report from the EMP was comprehensive, objective and based on clinical findings, history and observations …

The Tribunal noted that the clinical findings recorded by the EMP did not suggest that significant functional restriction was likely most of the time.  Slight impairment only of the lumbar spine was noted and there were no clinical findings in the GP notes and records to suggest significant functional impairment due to low back pain or indeed the other listed medical conditions.  It was noted that the level of pain relief was relatively minimal and although the appellant had indicated intolerance of medication there had been no referral to the Pain Clinic in relation to pain management.

The appellant stated in her self-assessment form that she had problems preparing a cooked main meal for herself and reiterated these difficulties in her oral evidence.  The Tribunal considered that the appellant did not satisfy the main meal test in light of the above medical evidence.  The Medically Qualified Panel Member (MQPM) explained that the evidence found in the GP records did not indicate that the appellant’s medical conditions would impact on her capability most of the time to perform the tasks involved in the preparation of a cooked main meal for one, safely and unaided.  The EMP was of the opinion, in light of the clinical findings and observations, that the appellant was able to peel/chop vegetables and use taps but may have difficulty due to poor memory coping with hot pans and difficulty using a traditional cooker due to low back pain and memory.  The appellant indicated problems with all of these activities in her oral evidence citing a lack of motivation, weakness, balance problems, pain, nausea and lack of appetite and problems with the use of her hands.

In light of the available medical evidence, the Tribunal found that the Appellant was capable of performing all the tasks involved in the preparation of a cooked main meal for one, safely and unaided.  The available medical evidence in the GP notes and records as detailed above did not support a finding that the appellant had cognitive problems that would most of the time impact on her ability to perform the relevant tasks in the main meal test.  Her GP made no reference to such difficulties in the report dated 24/11/10. The symptoms described by the appellant in relation to her medical conditions both in terms of their frequency and severity were not supported by reference to the GP notes and records.  Slight impairment only of lumbar spine was noted by the EMP and there were no clinical findings in the GP notes and records to suggest significant functional impairment due to low back pain or indeed the other listed medical conditions.

Accordingly the Tribunal found that the Appellant did not satisfy the main meal test in light of the available medical evidence.’

28.	In the statement of reasons for its decision, the appeal tribunal has also summarised entries and reports from the appellant’s GP notes and records.  

	Analysis

29.	In CB-v-Department for Communities (DLA) ([2016] NICom 8, C32/14-15(DLA)), I stated the following, at paragraphs 43 to 46:

	‘43.	Although I cannot be certain, the statement made by the appeal tribunal that it ‘… preferred this assessment by the EMP which was comprehensive, objective and based on clinical findings, history and observations’ has the tenor of being standard or formulaic wording purporting to validate evidence which was supportive of the appeal tribunal’s conclusions.

	44.	In CIB/563/2001, the appeal tribunal was also faced with what the Deputy Social Security Commissioner in Great Britain described as two expert medical reports which were in conflict.  One was a report of an examination conducted by a Benefits Agency Medical Services or ‘BAMS’ doctor as part of the decision-making process giving rise to the appeal.  The other was a report from an associate specialist in rheumatology at the appellant’s local hospital which the appellant had submitted in evidence. The Deputy Social Security Commissioner said the following, at paragraphs 6 to 8 of his decision:

	6.	The crux of the tribunal’s reasoning in this case appears in their statement of reasons:-

“In this case the tribunal must decide between two sets of conflicting evidence namely the findings of the (BAMS doctor) as against the verbal and written evidence of the appellant and the report of (the associate specialist).  In reaching their decision the tribunal preferred the (BAMS doctor’s) report.  This is because this report is from an independent source and follows a full clinical examination and verbal assessment of the appellant.”

	7.	I find this formula, variations of which I have seen in other cases, to be irrational.  BAMS doctors are trained and paid by the Secretary of State, who is one of the parties to the proceedings, to provide expert evidence to assist in determining, amongst other things, incapacity for work.  In this case an associate specialist has been paid by a Solicitor acting on behalf of another party to the proceedings to prepare an expert report.  I do not understand the basis on which a tribunal can, consistent with its judicial function, prefer the report of the BAMS doctor on the ground that it is “independent”.  As to the other reasons given, there is no suggestion that the associate specialist did not conduct a full clinical examination or that he failed to take account of the appellant’s history in reaching his conclusions.

	8.	I therefore conclude that the reasoning of the tribunal is inadequate; that their decision is erroneous in law; and that the case must be reheard.’

	45.	In the instant case, the implication of the appeal tribunal’s statement is that the EMP report was ‘… comprehensive, objective and based on clinical findings, history and observations’ and that those of the GP were not.  If that was what the appeal tribunal intended then its reasoning is in error.  Having examined all of the GP evidence, I do not see how it could not be said to be comprehensive, objective and based on clinical findings, history and observation.

	46.	I would add that the appellate authorities, including the Social Security Commissioners and the Upper Tribunal have been consistent in warning appeal tribunals about the consequences of adopting standard or formulaic paragraphs.  In CIB/511/05, for example, the Social Security Commissioner in Great Britain stated the following, at paragraph 3 of his decision:

‘… Tribunals ought in my view to take particular care to satisfy themselves that reports presented to them in this form really do represent considered clinical findings and opinions by the individual doctor whose name they bear, based on what actually appeared on examination of the particular claimant.  Tribunals who fail to identify and deal with apparent discrepancies such as those shown up here run an obvious risk that their own consideration of the case may be criticised as insufficient, especially if standard phrases such as the wording this one used - "The Tribunal preferred the evidence of the medical advisor which was based on clinical examination and findings." - are given as the reason for rejecting the claimant's own account of his disabilities.’’

30.	In the instant case, and as was noted above, the appeal tribunal has set out a statement concerning the weight which it has attached to the report from the EMP which, in my view, falls into the category of a ‘standard’ or ‘formulaic’ paragraph.  One significant consequence of the adoption of such an approach is the imperative that the remainder of the appeal tribunal’s reasoning, on discrete aspects of the appeal, is consistent with the appeal tribunal’s adoption of the evidence of the EMP in a formulaic manner.  A failure of uniformity in the reasoning is likely to lead to its set-aside on that ground. 

31.	The reader of the statement of reasons, which includes the appellant whose appeal has been unsuccessful, is faced, initially, with very general statements that insofar as there was a conflict in the evidence, the appeal tribunal preferred the evidence in the EMP report and the basis for that preference (synonym) was that the EMP report was ‘comprehensive, objective and based on clinical findings, history and observations.’  Given that aspects of the evidence of the EMP appear, at first glance, to be supportive of the appellant’s assertions, she was entitled to assume that the further reasoning of the appeal tribunal on the issue of benefit entitlement would result in a positive outcome.

32.	That was not the outcome, however.  As has already been noted, at part 7 of section 3 of the report of the EMP, the EMP noted that the appellant could cope with hot pans and use a traditional cooker only with someone’s help.  Under the heading ‘medical evidence to support opinion’ the EMP has recorded ‘poor memory’ and ‘memory’ for both of these limitations.  I would note, at this stage, that during the course of the proceedings before me, submissions were made by both Mrs Carty and Mr Kirk on the significance of the phrase ‘traditional cooker’.  At this stage, however, nothing turns on that because a ‘traditional cooker’ is what is mentioned at page 29 of the report and it was the use of a ‘traditional cooker’ that the EMP was asked to comment on.

33.	It is the case that it is not only in part 7 of section 3 that the EMP makes reference to issue with memory. In part 6 of section 1, the EMP has recorded ‘Memory is poor as well and has left on appliances.’  In part 7 of section 1, the EMP has recorded the appellant’s statement that she ‘… can make a snack in the kitchen but her husband always supervises, as her memory is poor.’  In part 1 of section 3, and in response to a request to provide a summary of the appellant’s functional ability, the EMP has recorded, under the heading ‘Mental’, ‘fatigue and motivational issues contribute, along with poor memory.’  In part 17 of section 17, the EMP was asked to give an opinion as to whether the appellant was aware of common dangers.  The EMP has ticked the box ‘no’ in response and has added ‘memory reported to be poor and has left on appliances.’

34.	As I have already noted, I can understand how the appellant, when reading the appeal tribunal’s general statements that it preferred the evidence of the EMP and cross-referenced that statement with what the EMP had recorded and, more significantly, opined in connection with her lack of awareness of common dangers an inability to cope with hot pans or use a traditional cooker, with evidence of having left on appliances, all based on poor memory, might have thought that all of that was supportive of entitlement to the lowest rate of the care component of DLA based on an inability to prepare a cooked main meal for herself.

35.	The appeal tribunal stated that the MQPM had explained that the evidence in the appellant’s GP records did not indicate an inability to perform the tasks involved in the preparation of a cooked main meal safely and unaided.  The appeal tribunal noted the EMP’s opinion in part 7 of section 3 of the report that appellant could cope with hot pans and use a traditional cooker only with someone’s help and that part of the reason for this was poor memory.  The appeal tribunal made no reference to the other parts of the report where issues with common dangers and memory were recorded.  The appeal tribunal also, and perhaps most significantly of all in connection with this issue, stated that the available medical evidence in the GP notes and records did not support a finding that the appellant had cognitive problems that would, for most of the time, impact on her ability to perform the relevant tasks associated with the preparation of a cooked main meal. The emphasis here is my own. 

36.	I have noted that the appeal tribunal had concluded that the available medical evidence did not suggest significant functional impairment due to problems with low back pain.  There is no doubt that the evidence in the report of the EMP and the other medical evidence which has been made available to me are supportive of that conclusion.  Accordingly, I find no fault with the appeal tribunal’s conclusions in this regard. 

37.	I have also noted that while the appeal tribunal correlated the evidence of the appellant’s GP, as set out in the Factual Report of 24 November 2010, to the general conditions of entitlement to the care component of DLA (attention in connection with bodily functions and/or a requirement for supervision), the GP’s evidence was not correlated to the specificity of the test for entitlement to the lowest rate of the care component based on an inability to prepare a cooked main meal. 

38.	Although the issue is marginal, I am satisfied that the statement of reasons for the appeal tribunal is inadequate to explain to the appellant why she did not satisfy the conditions of entitlement to the lowest rate of the care component of DLA based on satisfaction of the test in section 72(1)(a)(ii) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended.  The inadequacy is in three aspects. 

39.	The first is the failure of the appeal tribunal to have regard to the totality of the evidence in the report of the EMP.  As was noted above, there is a consistency in the report of the EMP concerning a record of the appellant’s problems with memory and the consequent omission to turn off appliances. There is a consistency to the opinion of the EMP that the appellant could only cope with hot pans and a traditional cooker only with someone’s help and that the reason for that was, in part, problems with memory.  Further, the EMP opined that the appellant was not aware of common dangers, once again, based on poor memory.  From all of this, the appeal tribunal having made a very general statement that it preferred the evidence of the EMP has done no more than rehearse what the EMP had stated rather than subjecting that evidence specific to the tasks associated with the preparation of a main meal, to the proper assessment.

40.	It is, of course, entirely arguable that the appeal tribunal has balanced the evidence of the EMP to the evidence which it found in the appellant’s GP notes and records.  This leads to my conclusions on the second aspect of inadequacy in the appeal tribunal’s reasons.  As was noted above, the appeal tribunal stated that the available medical evidence in the GP notes and records did not support a finding that the appellant had cognitive problems that would, for most of the time, impact on her ability to perform the relevant tasks associated with the preparation of a cooked main meal.  It could be argued, therefore, that the evidence in the EMP was outweighed by the lack of evidence of cognitive impairment in the appellant’s GP notes and records.

41.	I have already observed that the appeal tribunal has summarised entries and reports from the appellant’s GP notes and records.  It has noted a report from a Consultant Physician dated 21 April 2012 and has abridged that report as follows:

‘The appellant attended Dr W in April 2012 when she was reported that she has not felt completely well since September 2000 and that her principal symptoms since then comprised of an ongoing sensation of fatigue, characteristically unrelieved by sleep, weakness of her legs, muscular aches and pains and cognitive disturbance. Dr W concurred with the diagnosis of CFS/ME made by Dr H and advised the appellant on relaxation techniques as part of her treatment.’

42.	A copy of the Dr W’s report of 21 April 2012 is in the file of papers which is before me. In that report he stated that:

‘… Her principal symptoms since then have comprised an ongoing sensation of fatigue, characteristically unrelieved by sleep, weakness of her legs, muscular aches and pains and cognitive disturbance.  The latter tends to manifest mainly as a difficulty with short term memory and concentration.’

43.	This report contained in the appellant’s GP notes and records is indicative, once again, of the consistency with which the appellant has reported problems with short term memory.  Further, Dr W did not demur from nor dismiss the appellant’s statement of her symptoms and he readily agreed with another consultant’s diagnosis of chronic fatigue syndrome/ME. Another report from a community mental health nurse which has been made available to me makes reference to poor concentration and motivation.  Accordingly, it is arguable that there was, in fact, medical evidence available in the GP notes and records which could support a finding that the appellant had cognitive problems that could impact on the appellant’s ability to perform the relevant tasks associated with the preparation of a cooked main meal.

44.	Finally I have turned to the Factual Report from the appellant’s GP dated 24 November 2010.  I agree with the appeal tribunal that the statements which have been made by the GP in the Factual Report are general in nature and are not directed towards the legislative tests related to entitlement to the care component of DLA.  Nonetheless, the contents of the report are not unsupportive of the appellant’s claims and assertions. There is a reference to stress, frustration and feelings of being overwhelmed and out of control.

45.	I am of the view, therefore, that the appeal tribunal’s statement of reasons is inadequate to explain to the appellant why it did not accept that she did not satisfy the test for the lowest rate of the care component of DLA set out in section 72(1)(a)(ii) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, and based on her consistently stated problems with poor memory or cognitive impairment.  I set aside the decision of the appeal tribunal but with a degree of reluctance given that the issue is a marginal one.

46.	These conclusions are sufficient for me to dispose of the appeal. Accordingly I do not have to consider the appellant’s other grounds of appeal.  I do not wish, however, in declining to consider those grounds, to accord any disrespect to Mrs Carty in advancing them or Mr Kirk in responding to them. 

	Disposal

47.	The decision of the appeal tribunal dated 19 September 2013 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. 

48.	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 5 January 2011, in which a decision maker of the Department decided that the appellant was not entitled to DLA from and including 6 September 2010;

		(ii) in light of the further decisions dated 11 October 2012 that the appellant was not entitled to DLA from and including 5 September 2012, the appeal tribunal is limited in its jurisdiction to the period from 6 September 2010 to 4 September 2012  - C20/04-05(DLA);

		(iii) the appeal tribunal should also note that on 5 December 2015 the appellant was notified of an entitlement to the lower rate of the mobility component and the middle rate of the care component of DLA from and including 14 August 2014;

		(iv) 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 

		(v) 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

20 January 2017