KL-v-Department for Communities (DLA) [2017] NICom 8

Decision No:  C14/16-17(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LVIING ALLOWANCE

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 16 February 2016

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 16 February 2016 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 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

5.	On 8 October 2015 a decision-maker of the Department decided that the appellant was entitled to the lower rate of the mobility component of DLA from and including 4 November 2015.  Following a request to that effect the decision dated 8 October 2015 was reconsidered on 19 October 2015 but was not changed.  An appeal against the decision dated 8 October 2015 was received in the Department on 27 October 2015.

6.	The appeal tribunal hearing took place on 16 February 2016.  The appellant was present and was accompanied by his wife.  There was no Departmental Presenting Officer present.  The appeal tribunal allowed the appeal making an award of entitlement to the lowest rate of the care component of DLA, maintaining the award of the lower rate of the mobility component of DLA, and limiting both awards for the fixed period from 4 November 2015 to 3 November 2017.

7.	On 6 May 2016 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS).  On 20 May 2016 the application for leave to appeal was refused by the Legally Qualified Panel Member (LQPM).

	Proceedings before the Social Security Commissioner

8.	On 31 May 2016 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 17 June 2016 observations on the application were requested from Decision Making Services (DMS).  In written observations dated 7 July 2016, Mr Donnelly, for DMS supported the application for leave to appeal. Written observations were shared with the appellant on 7 July 2016.  On 24 August 2016 I granted leave to appeal, In granting leave to appeal I gave as a reason that it was arguable that there had been an inadvertent breach of the rules of natural justice during the course of the appeal tribunal proceedings. 

	Errors of law

9.	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?

10.	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 error of law in the instant case

11.	In his written observations on the application for leave to appeal, Mr Donnelly made the following submission:

‘In his application for leave to appeal to the legally qualified panel member, (the appellant) has raised the issue of a home visit by an Examining Medical Practitioner (EMP) and subsequent report. In the reasons for decision, the Tribunal referred to being “at a loss” to understand this reference.  This was due to there being no report in the appeal papers, and no reference by the department to such a report, or examination having taken place.

On further investigation of this issue, it has emerged that (the appellant) was indeed examined by an EMP in his home on 9 June 2015, and a subsequent report produced.  A clerical error by the department had in effect created a duplicate record for (the appellant), which did not include the EMP assessment and report.  It was the details of this record that were subsequently before the tribunal. 

It is therefore submitted that there has been an inadvertent breach of the rules of natural justice.  The Tribunal had no evidence of the EMP examination and report and therefore was not in a position to assess this evidence, and therefore is not at fault.  This evidence is especially pertinent as his indefinite award of the lower rate of the mobility component was limited to two years by the tribunal. 

As (the appellant) did not have a chance to have all the pertinent evidence assessed I submit that this would amount to an error in law which was material to the outcome of the appeal.’

12.	I accept Mr Donnelly’s submission and for the reasons which he has set out agree that the decision of the appeal tribunal is in error of law and I set that decision aside. 

	Disposal

13.	The decision of the appeal tribunal dated 16 February 2016 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. 

14.	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 8 October 2015, in which a decision maker of the Department decided that the appellant was entitled to the lower rate of the mobility component of DLA from and including 4 November 2015;

		(ii) the Department is directed to provide details of any subsequent claims to DLA 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 DLA into account in line with the principles set out in C20/04-05(DLA);

		(iii) the appellant will wish to consider what was said at paragraph 77 of C15/08-09(DLA) concerning the powers available to the appeal tribunal and the appellant’s options in relation to those powers;

		(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

7 February 2017