Northern Ireland - Social Security and Child Support Commissioners' Decisions

DM-v-Department for Social Development (DLA) [2010] NICom 335

Decision No: C24/12-13(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 28 July 2011

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.     This is an application for leave to appeal from the decision of the appeal tribunal sitting at Downpatrick on 28 July 2011.

 

2.     An oral hearing of the application has not been requested and I further consider that the matter may properly be determined without a hearing.

 

3.     I set aside the decision of the appeal tribunal and I refer the appeal to a newly constituted tribunal for redetermination in accordance with the directions I have given.

 

         REASONS

 

         Background

 

4.     The applicant had a history of entitlement to disability living allowance (DLA).  He was awarded the high rate of the mobility component and the high rate of the care component form 24 June 2005 to 23 June 2008.  He was subsequently awarded the high rate of the mobility component and the middle rate of the care component from 24 June 2008 to 23 June 2010.  He made a renewal claim in respect of the period from 24 June 2010, on the basis of prolapsed discs, sciatica, depression and rosacea.  This claim resulted in an award of the low rate of the mobility component and the middle rate of the care component from 24 June 2010 to 23 June 2012. He appealed.

 

5.     On 28 July 2011 an appeal tribunal decided that the applicant was entitled to the low rate of the care component from 24 June 2010 to 23 June 2012, but that he was not entitled to the mobility component at any rate.  He requested a statement of reasons for the tribunal’s decision on 8 August 2011.  This was issued to him on 26 October 2011.  On 29 November 2011 he applied for leave to appeal to the Social Security Commissioner.  The application to the legally qualified member (LQM) of the appeal tribunal was out of time, but it was admitted late on 7 December 2011.  On the same date the LQM refused leave to appeal and the determination to this effect was notified to the applicant on 14 December 2011.

 

6.     On 10 January 2012 a letter from the applicant’s representative, dated 25 November 2011, was received at the Office of the Social Security Commissioners, requesting leave to appeal.  The applicant was directed to make his application in the approved form.  An application form dated 12 January 2012 was then received on 17 February 2012.

 

         Submissions

 

7.     The applicant through his representative, Mr McGregor of Down District Citizens Advice Bureau, submits that the tribunal has erred in law by:

 

(i)        not explaining how it came to decide that the applicant was not a “reliable witness”, relying on R(SB)33/85;

 

(ii)       not explaining why the examining medical practitioner (EMP) evidence was preferred over the applicant’s own evidence in relation to gait, chronic pain and durability.

 

8.     On 27 March 2012 the Department was invited to make observations on the applicant’s grounds.  The Department did not initially support either ground of appeal.

 

9.     As this was a case which involved a removal of existing entitlement by a tribunal, I directed the applicant’s representative and the Department to make further observations on the applicability of Commissioner’s Decision C15/08-09(DLA) and in particular the compliance of the decision of the tribunal with the principles set out at paragraph 61 of that decision.  The parties each made submissions to the effect that the tribunal had not complied with the principles of fairness set out in C15/08-09(DLA) in determining the appeal.  Mr Collins for the Department further submitted that the tribunal’s reasons were inadequate as far as entitlement to middle rate care component is concerned.

 

         Assessment

 

10.   I do not consider that there is merit in the grounds of application for leave to appeal submitted.  The evidence of the applicant was not the only material before the tribunal as in R(SB)33/85.  The credibility of the applicant’s account was assessed by the tribunal against a background of medical evidence in the general practitioner (GP) records, the GP factual report and the EMP report.  The reasons of the tribunal for not accepting the applicant’s evidence are abundantly clear from that material.

 

11.   As to the tribunal’s preference for the EMP’s evidence over that of the applicant’s GP, the reason is equally clear.  It is that the GP has merely made generalised comments about back pain and the applicant having a wide gait, whereas the EMP has commented on factors relevant to the statutory test of entitlement.  The EMP addresses the distance the applicant can manage before the onset of severe discomfort, his speed of walking, manner of walking and time (expressed in the finding on the need for halts) taken to walk, all factors which go to the question of whether the applicant is virtually unable to walk.  I do not consider that there is merit in this ground of application.

 

12.   I am more troubled by the fact that the applicant entered the tribunal room with an award of middle rate care and low rate mobility and left it with low rate care.  The tribunal reduced his award on appeal.  It is clear from the record of proceedings that his representative had advised him in a general sense of the tribunal’s powers to reduce an existing award.  It is also clear that the applicant himself raised both the question of entitlement to mobility component and entitlement to care component in the appeal, by seeking higher awards of each.

 

13.   In C15/08-09(DLA), Chief Commissioner Mullan set out some of the legal principles applying where a tribunal is determining an appeal and where it appears to the tribunal that the appellant’s current award is not a correct award on the relevant facts and law.  At paragraph 61 he summarises some of the principles arising from relevant case-law as follows:

 

“(i)       an appeal tribunal is entitled to make a decision less favourable to the claimant than the decision under appeal;

 

(ii)        an appeal tribunal is entitled to supersede (or revise) the original decision on a ground which leads to a decision less favourable to the claimant than the decision under appeal;

 

(iii)       a less favourable award may also be made by an appeal tribunal which is considering an appeal against a decision of the Department on a renewal claim;

 

(iv)       the discretion of the appeal tribunal to make a less favourable decision is one to be exercised judicially, taking into account all relevant circumstances;

 

(v)        if a statement of reasons for the appeal tribunal’s decision is given, then the reasons for the exercise of the discretion should be set out;

 

(vi)       the appeal tribunal must be satisfied that there has been compliance with the requirements of Article 6 of the European Convention on Human Rights and of natural justice;

 

(vii)      compliance with the requirements of Article 6 includes the requirement that the appellant has had sufficient notice of the appeal tribunal’s intention to consider making a decision which is less favourable, in order to enable the appellant properly to prepare his case;

 

(viii)     the appellant is entitled to withdraw his appeal any time before the appeal tribunal’s decision and this power may also be material to what Article 6 and the rules of natural justice demand;

 

(ix)       appeal tribunals should refrain from making decisions less favourable to appellants than the decisions being challenged, except in the most obvious cases, or after an appropriate adjournment; …”

 

14.   In the present case, the Department did not dispute any aspect of the existing award.  However, it appears that the appeal tribunal, upon seeing documentary evidence including the GP records, considered that this evidence placed a question-mark over the existing award.

 

15.   Principle (vii) in the list above suggests that an appellant should be given sufficient notice of a tribunal’s intention to make a less favourable award than the one he currently has.  This enables him to seek adjournment to prepare further evidence to argue that element of his case, or to withdraw the appeal at any time up until the decision in the appeal is given.

 

16.   While clear reference is made to the tribunal’s powers having been explained in general terms, I consider that the specific basis on which a tribunal intends to reopen the question of an existing award requires to be put to the appellant.  It is clear that the tribunal has satisfied itself that the applicant was aware of the general powers of the tribunal.  The relevant part of the record of proceedings reads:

 

“Mr McGregor: I’ve seen the medical records.

It is High Rate Mobility and High Rate Care.

Current award in payment.  I’ve advised him about that and happy to proceed.

Additional letters are past Date of Decision.

Nothing to add”.

 

17.   From this I take it that the tribunal had asked the representative whether he had seen the medical records, what components were in issue in the appeal and whether the applicant was aware of the powers of the tribunal to reduce or remove an existing award.  However, there is no record of any statement to the effect that the tribunal had particular doubts about the correctness of the existing award in the instant case, and was intending to consider a less favourable award.  Nor is there a record of the tribunal highlighting to the applicant the specific evidential basis for the tribunal’s doubts, which the applicant might require to address.  This had the effect that the applicant was not alerted to any such issue, and the possible need to seek adjournment in order to obtain evidence to address it, or to whether, in the face of specific evidence, withdrawal might be a prudent course of action.

 

18.   I consider that the requirement of “sufficient notice of the appeal tribunal’s intention to consider making a decision which is less favourable” requires that the applicant should be alerted to specific evidence which the tribunal considers may lead to it making a less favourable decision, and thereby be given an opportunity to consider whether he requires an adjournment for further evidence on the issue, or whether he might wish to withdraw the appeal as permitted by regulation 40 of the Social Security and Child Support (Decisions and Appeals) Regulations (NI) 1999 (“the Decision and Appeals Regulations”).  It is not evident from the record of proceedings that sufficient notice in this sense was afforded to the applicant.

 

19.   The parties are agreed on this basis that the decision of the tribunal contains an error of law.  In such a circumstance it is open to me to refer the case to a new tribunal under Article 15(7) of the Social Security (NI) Order 1998, without a specific finding that the tribunal has erred in law.

 

20.   However, I consider that it is more appropriate for me to make my own decision to the effect that the tribunal has erred in law.  I grant leave to appeal and, for the reasons I have given, under Article 15(8) of the Social Security (NI) Order 1998 I set aside the decision of the appeal tribunal.  I direct that the appeal should be heard by a newly constituted tribunal.  This decision has the effect that the applicant is in the same position to make any application under Part V of the Decisions and Appeals Regulations as he would have been before the tribunal’s determination of his appeal.

 

(signed):  O Stockman

 

Commissioner

 

 

 

17 October 2012