PM-v-Department for Social Development (DLA) [2010] NICom 56

Decision No:  C36/10-11(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 2 March 2009

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

1.    Having considered the circumstances of the case, I am satisfied that the application can properly be determined without a hearing.

 

2.    I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.

 

3.    The decision of the appeal tribunal dated 2 March 2009 is in error of law.  The error of law identified will be explained in more detail below.

 

4.    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.

 

5.    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, and there may be further findings of fact which require to be made.  Further 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.

 

6.    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.

 

7.    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

 

8.    The decision under appeal is a decision of the Department, dated 26 September 2008, which decided that the applicant was not entitled to DLA from and including 29 August 2008 on what appears to have been a new claim.  An appeal against the decision dated 26 September 2008 was received in the Department on 24 October 2008.

 

9.    The appeal tribunal hearing took place on 2 March 2009.  The applicant attended the oral hearing and gave evidence.  He was accompanied by his father.  A presenting officer from the Department was present.  The appeal tribunal disallowed the appeal, and confirmed the decision dated 26 September 2008.

 

10.   On 29 June 2009 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.  On 2 July 2009, the application for leave to appeal was refused by the legally qualified panel member.

 

       Proceedings before the Social Security Commissioner

 

11.   On 22 July 2009, a further application for leave to appeal to the Social Security Commissioner was received in the Office of the Social Security Commissioners and Child Support Commissioners.

 

12.   On 21 September 2009 observations were sought from Decision Making Services (DMS) and these were received on 12 October 2009.  DMS opposed the application.

 

13.   Observations were shared with the appellant on 19 October 2009.

 

14.   On 14 December 2009, DMS were asked to comment on the specific issue of the applicability of the principles in R(DLA) 3/06 to the issues arising in the appeal.

 

15.   On 23 December 2009 a further submission was received from DMS which was shared with the applicant on 18 January 2010.

 

16.   On 9 February 2010 a further submission was received from the applicant which was shared with DMS on 25 February 2010.

 

Errors of law

 

17.   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.

 

18.   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.”

 

       Was the decision of the appeal tribunal in the instant case in error of law?

 

19.   The statement of reasons for the appeal tribunal’s decision runs to two pages.  The first page is taken up with a description of the background to the appeal; a review of certain medical evidence from the appellant’s general practitioner (GP) and a review of the evidence given by the applicant, both in the claim form to DLA and orally before the appeal tribunal.

 

20.   At the bottom of the first page and top of the second page of the statement of reasons, the appeal tribunal has stated:

 

‘The panel considered (the claimant’s) medical records carefully.  He had been referred to Mr V… at the C….. Hospital. Mr V…. indicated on 03.10.2008 that (the claimant’s) condition was “most probably sleep apnoea”, and significant problems with snoring.  He stated that he would probably require a CPAP device and advised him to lose weight.  Mr V…. nowhere indicated that (the claimant) suffered from narcolepsy.

 

(The claimant’s) description of his condition was indicative of severe fatigue, but described himself as not falling asleep without warning.  He was not precluded from driving by DVLA, although he had stopped driving by choice.

 

The panel noted the General Practitioner’s stated diagnosis of narcolepsy.  However Mr V…. diagnosed not narcolepsy but possible sleep apnoea.  The panel noted the definition of narcolepsy in “Symptoms and Signs in Clinical Medicine” as resembling epilepsy, in that it consisted of a paroxysmal but transient disturbance of cerebral function.  In ‘Neurology: What Should I Do?  (Thomas and Daily), it is stated that a patient does not have narcolepsy if he sleeps badly at night and then catches up during the day.  The relevant entry continued “Remember the possibility of sleep apnoea syndrome in patients who are overweight with a short neck and who snore heavily”.  On this basis the panel rejected the diagnosis of narcolepsy in (the claimant’s) case.  They accepted that (the claimant) experienced a high level of fatigue, but not bouts of uncontrollable sleep from which he could easily be raised, which is characteristic of narcolepsy.’

 

21.   In R(DLA) 3/06, at paragraphs 35 to 37, a Tribunal of Commissioners in Great Britain stated:

 

‘35.     “Disability” is conceptually distinct from “medical condition”.  “Disability” is entirely concerned with a deficiency in functional ability, ie the physical and mental power to do things.  Of course, a diagnosable medical condition may give rise to a disability.  For example, a condition that inevitably involves the loss of a sense or a limb would give rise to an obvious diminution in functional capacity.  But entitlement to DLA is dependent upon a claimant’s inability to cope with care and mobility without assistance and with his consequent reasonable care and mobility needs; and not upon the diagnosis of any medical condition.  Even if a person has a serious medical condition in the sense that his life is imminently threatened – perhaps some asymptomatic heart condition – that person is not entitled to either component of DLA if the condition has no adverse impact on his ability to care for himself and be mobile without assistance.  Conceptually and in ordinary language usage, “disability” cannot be equated with “medical condition”; and a “severe disability” is not the same as a “serious medical condition”.

 

36.           Contrary to this usage, do the statutory provisions of sections 72 and 73(1)(d) require “disability” to mean “medical condition”?  The requirement of these provisions is that the claimant is “so severely disabled … that” certain consequences follow.  This clearly does not and cannot mean “having a serious medical condition”.  If severity of disability is measured by reference to the seriousness of the medical condition, rather than to the effects in terms of care needs, the provisions could not achieve their purpose of correlating entitlement to care needs.  Furthermore, as the Chief Commissioner recognised in the formulation of his question in R(A) 2/92, in context the equation of “disability” with “medical condition” requires a severance of the statutory language, which would deprive the provision of any criteria by which “severity” could be assessed.  Indeed, the very use of the word “severe” is an indication that “disability” is a reference to some functional deficiency (see paragraph 41 below).

 

37.           Sections 72 and 73(1)(d) require a claimant to be “disabled physically or mentally”, and provide no further definitions or guidance.  If there had been an intention to require proof of a diagnosed or diagnosable medical condition, then the provisions could have made this clear, as they do in other benefit contexts (eg the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 (SI 1985/967).  We were also referred to section 1(1) of the Disability Discrimination Act 1995 which provides “[s]ubject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities”.  Schedule 1 provides a number of detailed provisions that supplement section 1, including in paragraph 1 the following:  “Mental impairment’ includes an impairment resulting from or consisting of a mental illness only if the illness is a clinically well-recognised illness”.  As Mr Maurici submitted, had Parliament intended to adopt a similar restricted approach to the concept of “disability” in the 1992 Act, it could and no doubt would have done so.’

 

22.   The key phrase in the extract cited above is ‘… entitlement to DLA is dependent upon a claimant’s inability to cope with care and mobility without assistance and with his consequent reasonable care and mobility needs; and not upon the diagnosis of any medical condition.’

 

23.   In the instant case, a large part of the statement of reasons for the appeal tribunal’s decision is taken up with a detailed analysis as to whether the applicant had a definite diagnosis of narcolepsy.  It is not clear why the appeal tribunal undertook such a detailed analysis.  I would say, however, that if the reasoning of the appeal tribunal was that the appellant could not have an entitlement to DLA because he had no real diagnosis then such reasoning is erroneous.  I would add that the unnecessary concentration on the diagnosis issue is unfortunate as it may give the misleading impression that aspects of the tests for entitlement to DLA are predicated on a claimant having to demonstrate that he or she suffers from a diagnosed medical condition.

 

24.   There are, however, other aspects to the appeal tribunal’s statement of reasons and I have to go on to consider whether despite the initial emphasis on the rejection of a specific diagnosis, the appeal tribunal has properly assessed whether the applicant satisfies the conditions of entitlement to DLA.

 

25.   The remainder of the statement of reasons for the appeal tribunal’s decision are brief, and read, in part, as follows:

 

‘CARE

 

The panel found that (the claimant) experienced extreme fatigue during the day.  The panel did not find on the evidence of (the claimant), nor on the basis of the background medical evidence, that (the claimant) experienced sudden and unexpected episodes of falling asleep.  It was not felt that he required supervision to avoid substantial danger to himself or others for this reason.

 

Similarly, the panel could see no basis why (the claimant) could not prepare a main cooked meal if he had the ingredients …’

 

26.   Included within the papers which are before me is the appeal submission which, in turn, was before the appeal tribunal.  Within that appeal submission, at Tab No 2 is a copy of a ‘factual report’ completed by the appellant’s GP on 22 September 2008.  At page 4 of that report, the GP is asked to give details of the history of the appellant’s medical condition.  In response to that question, the GP has recorded ‘… falls asleep mid conversation.’  The GP is also asked to give details of day to day variation in the appellant’s medical condition(s).  In the response to this question, the GP has recorded ‘… frequently falls asleep during daytime activities eg buttering toast, talking’.

 

27.   In the statement of reasons for the appeal tribunal’s decision the only reference to the evidence from the GP’s factual report is in the lengthy section where the appeal tribunal rejects the diagnosis of narcolepsy.  It is important to note that the relevant section begins with the sentence ‘The panel noted the GP’s stated diagnosis of narcolepsy.’  There had been an earlier reference to the GP indicating a diagnosis of narcolepsy in the factual report.  The penultimate sentence in the section is that ‘On this basis, the panel rejected the diagnosis of narcolepsy in (the claimant’s) case.’

 

28.   It seems to me that the appeal tribunal, having rejected the GP’s diagnosis of narcolepsy, and without making it explicit, has gone on to reject the remainder of the evidence of the GP as set out in the factual report.  The appeal tribunal’s concentration on the diagnosis question has, it seems to me, resulted in an inflexible approach to the assessment of the evidence available to it concerning the appellant’s functional impairment and any resultant care and/or supervision requirements.  That would seem to be the only possible explanation for the contrary overall conclusion that the appeal tribunal ‘… did not find on the evidence of (the claimant), nor on the basis of the background medical evidence, that (the claimant) experienced sudden and unexpected episodes of falling asleep…’ when there was evidence before the appeal tribunal, contained within the GP’s factual report that there were sudden and unexpected episodes of falling asleep.

 

29.   In the record of proceedings for the appeal tribunal hearing, the appellant’s father is recorded as giving evidence concerning a requirement for him to be awake at night to ensure that his son is alright.  Accordingly, in addition, the appeal tribunal must also have rejected the evidence from the applicant’s father concerning the requirement for someone to be awake at night.  I say that because there is no reference to what the appeal tribunal made of this evidence in the statement of reasons for its decision.

 

30.   I am of the view that the appeal tribunal’s rejection of the evidence of the GP was in the erroneous context of its desire to reject the diagnosis of narcolepsy.  As noted above, the overall approach of the appeal tribunal, in concentrating on the diagnosis issue, and in taking an inflexible approach to the available medical evidence in light of the diagnosis issue, is erroneous.

 

31.   I would add that the diagnosis issue was not, in any event, as clear-cut as the appeal tribunal concluded.  Within the relevant factual report from the GP, there is reference to the appellant being on a waiting list for ‘CPAP/sleep studies’.  It is not clear to me whether such studies were completed and what the outcome of those studies was.

 

       Disposal

 

32.   The decision of the appeal tribunal dated 2 March 2009 is in error of law.

 

33.   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.

 

34.   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, and there may be further findings of fact which require to be made.  Further 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.

 

35.   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 26 September 2008, which decided that the applicant was not entitled to DLA from and including 29 August 2008;

 

(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)            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

 

(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

 

Commissioner

 

 

 

16 June 2010