JV -v- Department for Social Development (DLA) [2013] NICom 352 (16 January 2013)

JV-v-Department for Social Development (DLA) [2013] NICom 352

Decision No: C36/12-13(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 20 April 2011

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. The appellant applied for leave to appeal from the decision of an appeal tribunal sitting at Belfast on 20 April 2011.

2. I held an oral hearing of the application on 4 September 2012. At the hearing I granted leave to appeal and, with the consent of the parties, I proceeded to treat and determine the application as an appeal.

3. However, for the reasons given below, I disallow the appeal.

REASONS

Background

4. The appellant, who is a national of Hungary, claimed disability living allowance (DLA) from and including 27 August 2009. His claim was disallowed on 14 October 2009 and he appealed. On 11 June 2010, a tribunal awarded him the low rate of the care component for the fixed period from 27 August 2009 to 26 August 2011 on the basis of his requirement for attention in connection with bodily functions for a significant portion of the day.

5. Within a few weeks of the tribunal decision, on 1 July 2010, the appellant applied to the Department for a supersession of the tribunal decision. He submitted further evidence, in the form of a translated Hungarian medical report dated 5 October 2009 and a DLA434 form, stating that his condition had got worse. On 10 August 2010 the Department made a decision refusing to supersede the tribunal’s decision. On 13 August 2010, the appellant appealed.

6. The appeal against the decision to refuse to supersede the earlier tribunal decision was heard by a tribunal on 20 April 2011. The tribunal disallowed the appeal. A statement of reasons for the tribunal’s decision was requested on 12 May 2011 and issued on 15 July 2011. The appellant applied to the legally qualified member (LQM) for leave to appeal to the Social Security Commissioner but the LQM refused leave to appeal on 8 August 2011. This determination was notified to the appellant on 17 August 2011.

7. On 16 September 2011 the appellant sought to make an application to extend the time limit for making his application for leave to appeal to a Social Security Commissioner. However, the faxed request was not received at the correct office until 21 September 2011, by which date it was out of time. The appellant’s representative subsequently submitted grounds of application for leave to appeal on 5 October 2011, with reasons for lateness. On 14 December 2011 the Chief Commissioner accepted the late application for special reasons.

Submissions

8. The appellant’s grounds of application for leave to appeal were:

1. the tribunal’s decision was wrong, based on the medical evidence used to make the decision;

2. all of his medical documents were not before the tribunal;

3. the tribunal did not take into account medical evidence provided by Hungarian doctors.

9. On 26 October 2011 the Department was invited to make observations in relation to the grounds of application. The Department responded on 7 November 2011. For the Department, Mr Collins noted that the appellant does not say what medical documents were not before the tribunal. However, he submitted that the case had been previously adjourned for the purpose of obtaining a report following an orthopaedic attendance on 7 December 2010, yet this was not before the tribunal. He submitted that the tribunal had failed to consider the terms of the previous adjournment, to consider the absence of the report and to determine what should be done in its absence, giving reasons, as required following C16 & C17/04-05(DLA). He therefore submitted that the tribunal had erred in law. He further supported the application in so far as it related to the translations of Hungarian medical reports. Mr Collins raised the additional issue of whether the tribunal had erred in making findings based on ocular observations of the appellant, without giving him an opportunity to comment, contrary to C87/10-11(DLA).

10. On 24 January 2012, Mrs Carty of Law Centre NI came on record to represent the appellant. She concurred with the views of Mr Collins and submitted that this was an appropriate case in which the Commissioner might use the power under Article 15(7) of the Social Security (NI) Order 1998 to set aside the decision of the tribunal where each of the parties agreed that the decision of the appeal tribunal was erroneous in law.

11. I consider that Article 15(7) is a useful power for expediting remittal to a new tribunal in appropriate cases. In the present case, however, I was not convinced that the errors of law identified by the parties in the tribunal decision represented material errors of law, in the sense that they would necessarily have affected the outcome of the appeal. In such circumstances, it seems to me inappropriate to remit an appeal with no realistic prospect of success, thus giving an applicant false hope and burdening a new tribunal with an appeal with only one likely outcome. Therefore, in the circumstances of the particular case, I decided to hear oral argument on the aspect of material error of law.

Case summaries

12. I directed the parties to provide written summaries of the case they intended to advance at the hearing. Mrs Carty observed firstly that the appellant, subsequent to the challenged decision, had been awarded the low rate of the mobility component together with the low rate of the care component for a fixed five year period from 16 May 2011 to 15 May 2016. This meant that I was considering a closed period up to 15 May 2011, following the decision of Commissioner Brown in C20/04-05(DLA).

13. The first ground relied upon by Mrs Carty was that a tribunal previously adjourned the appellant’s case in order to obtain a copy of a medical report relating to an orthopaedic attendance of 9 December 2010. The present tribunal appeared to have determined the appeal without sight of that report and without acknowledging the failure to comply with the earlier direction, contrary to C16/04-05(DLA).

14. The second ground was that the tribunal did not appear to address the evidence provided by the appellant from a doctor in Hungary. By failing to address this evidence the tribunal had erred in law, contrary to C19/11-12(DLA).

15. The third ground was that the tribunal failed to address a specific assertion by the appellant that his circumstances had worsened following a specific fall in March 2010. The tribunal referred to the question of whether grounds existed to supersede the tribunal decision of 11 June 2010. Mrs Carty questions whether the tribunal addressed the correct period for considering whether there had been a change of circumstances, and whether it had excluded the events of March 2010 from consideration.

16. Fourthly, Mrs Carty submitted that the tribunal’s reasons were inadequate, in that they had not considered the issue of diminished mobility.

17. Fifthly, Mrs Carty submitted that the tribunal had placed weight on ocular observations, but should have put its observations to the appellant for comment, relying on C87/10-11(DLA).

18. Finally, she submitted that the tribunal had made material errors of fact, referring particularly to a finding about the appellant’s past injury from kick-boxing which, she submitted, was ascribed to a period ten years later than it actually occurred.

19. Mr Collins responded for the Department and accepted that the tribunal had erred in law in some of the respects asserted by Mrs Carty. He accepted her points about the tribunal proceeding without the medical document which the previous tribunal had directed to be provided, about the tribunal failing to make specific reference to the medical evidence from Hungary, about the tribunal’s assessment of the appellant’s mobility and about the tribunal’s use of ocular observations without giving the opportunity to the appellant to comment.

Relevant legislation

20. Article 11 of the Social Security (NI) Order 1998 (“the 1998 Order”) reads:

“Decisions superseding earlier decisions

11.-(1) Subject to paragraph (3) and Article 36(3), the following, namely-

(a) any decision of the Department under Article 9 or this Article, whether as originally made or as revised under Article 10; and

(b) any decision under this Chapter of an appeal tribunal or a Commissioner, may be superseded by a decision made by the Department, either on an application made for the purpose or on the Department’s own initiative.

(2) In making a decision under paragraph (1), the Department need not consider any issue that is not raised by the application or, as the case may be, did not cause the Department to act on its own initiative.

(3) Regulations may prescribe the cases and circumstances in which, and the procedure by which, a decision may be made under this Article.

….”

Article 13(8) of 1998 Order reads:

“(8) In deciding an appeal under this Article, an appeal tribunal-

(a) need not consider any issue that is not raised by the appeal; and

(b) shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.”

The relevant provisions implementing Article 11 of the 1998 Order can be found at regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations (NI) 1999 (“the Decisions and Appeals Regulations”). This reads, so far as relevant:

Supersession of decisions

“6.-(1) Subject to the following provisions of this regulation, for the purposes of Article 11, the cases and circumstances in which a decision may be superseded under that Article are set out in paragraphs (2) to (4).

(2) A decision under Article 11 may be made on the Department’s own initiative or on an application made for the purpose on the basis that the decision to be superseded-

(a) is one in respect of which-

(i) there has been a relevant change of circumstances since the decision had effect or, in the case of an advance award under regulation 13, 13A or 13C of the Claims and Payments Regulations or regulation 146 of the Employment and Support Allowance Regulations, since the decision was made, or

(ii) it is anticipated that a relevant change of circumstances will occur;

(b) is a decision of the Department other than a decision to which sub-paragraph (d) refers and-

(i) the decision was erroneous in point of law, or it was made in ignorance of, or was based on a mistake as to, some material fact, and

(ii) an application for a supersession was received by the Department, or the decision by the Department to act on its own initiative was made, more than one month after the date of notification of the decision which is to be superseded or after the expiry of such longer period of time as may have been allowed under regulation 4;

(i) that was made in ignorance of, or was based on a mistake as to, some material fact, or

(ii) that was made in accordance with Article 26(4)(b), in a case where Article 26(5) applies;

…”

The hearing and my assessment

21. The appellant was not required to attend and did not attend. He was represented by Mrs Carty, and the Department was represented by Mr Collins. At the outset of the hearing I granted leave to appeal. The parties consented to the application being determined as if it were an appeal. I am grateful to both parties for their helpful submissions.

Ground 1 - the previous tribunal’s terms of adjournment

22. On Mrs Carty’s first point, I asked for submissions on whether the tribunal had in fact directed that information about the orthopaedic attendance of 7 December 2010 should be provided. I then asked for submissions on the content of the report, which Mrs Carty had provided to me. It was accepted by the parties that the report was descriptive of the appellant’s condition in a manner consistent with other evidence but gave no indication of mobility or care needs. It did not suggest any relevant change of circumstances such as to support the application for supersession.

23. I do not consider that the tribunal did in fact direct the production of the particular report. The context of adjourning was one of a general absence of medical records. The tribunal adjourned for the medical records and indicated to the appellant that he should check that his medical notes would be provided and that the information about the orthopaedic attendance was included. This indicates to the appellant that the tribunal felt that the report could be useful to his case, but in my view this fell short of a direction. Therefore this was not on all fours with the case such considered by Deputy Commissioner Powell in C16/04-05(DLA). In any case, the tribunal did not see the relevant report. However, I have had the benefit of seeing the report and I consider that, if the tribunal had seen it, its content was not such as to be likely to materially affect the tribunal’s decision.

24. Mrs Carty also observed that the tribunal had adjourned for the attendance of a presenting officer to clarify whether the appellant had an appeal pending from the tribunal decision which was the subject matter of the refusal to supersede appeal. However, none attended and the tribunal proceeded with no mention of this fact. It was, however, the case that a further submission had been produced by the Department on the issue of a possible appeal against the tribunal decision, which had confirmed that no such appeal was pending. Having clarified the factual issue which was uncertain, I consider that this document does not require specific mention by the tribunal in the circumstances. I do not accept that the tribunal has materially erred in law with reference to the terms of the previous adjournment decision and I reject the applicant’s first ground.

Ground 2 - the Hungarian medical reports

25. The second main issue was the question of treatment of the Hungarian medical evidence. This included a report dated 5 October 2009 from a “Dr G” of the Magyar Imre Hospital which was submitted at the time of requesting supersession. The appellant provided further medical evidence to the tribunal in the form of a report dated 17 September 2010 from a “Dr C” of the Csolnoky Ferenc Hospital based on an MRI scan of the same date. Additionally the applicant provided the tribunal with a note from “Dr S” of the Magyar Imre Hospital dated 21 September 2010, confirming that the appellant suffered from dysthymia and paranoid schizophrenia.

26. In identifying the relevant change of circumstances which the appellant relied upon, Mrs Carty referred to an incident in March 2010 where he had fallen on the stairs. She submitted that he had sustained a vertebral fracture in the fall and that this gave rise to increased functional restrictions. She submitted that the relevance of the Hungarian medical evidence lay in the MRI scan report of 17 September 2010 where one line reads “Status post fracturam vertebrae C5”. Mrs Carty linked this to a letter from the Pain Clinic dated 24 October 2011 which relates that the appellant “fell down the stairs in March 2010 and attended casualty and was given a collar which he has been wearing ever since”. It is accepted that there is no record of an attendance at casualty around this date in the applicant’s medical notes.

27. In order to address the question of whether the tribunal approached this evidence correctly in deciding whether there had been a relevant change of circumstances, it was necessary to identify the relevant period which the tribunal had to consider. The tribunal referred to the date of the decision refusing to supersede, which was 10 August 2010, and to the date of first appeal tribunal decision being 11 June 2010 and says “This is quite a short time scale”. Mrs Carty submits that the tribunal has addressed the wrong period, by addressing the issue of whether there was a relevant change of circumstances between 11 June 2010 and 10 August 2010, which is indeed a short time scale. She submits that the proper period which the tribunal had to consider was from the date of the Departmental decision of 14 October 2009, giving rise to the first appeal, to the new Departmental decision made on 10 August 2010. This could not be described as quite a short time scale and, she submits, points to an error by the tribunal.

28. Having had the benefit of written submissions from the appellant and from the Department, I accept that the dates pointed to by the tribunal are indeed suggestive of an error of law in its approach to the question before it. In particular, if the tribunal understood that the question before it was whether there had been a change of circumstances between 11 June 2010 and 10 August 2010, I consider that it would have been in error of law.

29. The reason for this relates to the legislative requirements surrounding the decision of the tribunal of 11 June 2010. Since the introduction of Article 13(8)(b) of the Social Security (NI) Order 1998, tribunals have been precluded from a consideration of factual matters down to the date of hearing. Rather, they are restricted to a consideration of the circumstances obtaining at the date on which an appealed decision is made. The consequence is that the tribunal of 11 June 2010 was precluded from considering changes in circumstances which occurred after the date of the Department’s decision on 14 October 2009. As the decision of the appeal tribunal of 11 June 2010 could not have taken into account any relevant change of circumstances after 14 October 2009, a request for a supersession of the tribunal’s decision on the basis of a change in circumstances at least required a consideration of whether there had been relevant change in the period from 14 October 2009 to the date of the Department’s refusal to supersede on 10 August 2010.

30. However, the relevant question for the purposes of regulation 6(2)(a)(i) of the Decisions and Appeals Regulations is whether there has been a relevant change of circumstances since the decision “had effect”. The decision of the appeal tribunal of 11 June 2010 was to award low rate care component from and including 27 August 2009. The words “had effect” are not defined and bear their natural meaning. I consider that the tribunal decision therefore had effect from 27 August 2009. This would have the consequence that the tribunal, when considering the question of whether there were grounds to supersede the tribunal decision of 11 June 2010, was concerned with the question of whether there had been a change in circumstances in the broader period from 27 August 2009 to 10 August 2010.

31. In R(IS)2/08, a GB Tribunal of Commissioners has addressed a related question. They noted that where a change of circumstances occurs before the date of the decision under appeal, a tribunal is not bound by (the GB equivalent of) Article 13(8)(b) of the 1998 Order. They reasoned that, where the tribunal is well aware of such a change of circumstances and has therefore adjudicated on it, the Department, and by implication a subsequent tribunal, should not find that there are grounds to supersede on the basis of a relevant change of circumstances (paragraph 38).

32. For the Department Mr McGrath in a post-hearing submission argues that this decision has application in the present circumstances to restrict any consideration of possible changes in circumstances to the period after the date of the Departmental decision (ie from 14 October 2009). Mrs Carty on the other hand submits that the decision in R(IS)2/08 concerned capital and notional capital for income support purposes, and can be distinguished from the context of DLA. She submits that the case must be considered as restricted to its facts, enabling a full consideration to be given to possible changes of circumstances from 27 August 2009.

33. As the relevant change of circumstances relied upon is said to have occurred in March 2010, it post-dates the decision under appeal before the first tribunal. Therefore I am not required to consider whether an application for supersession of a decision of a tribunal under regulation 6 of the Decisions and Appeals Regulations is restricted by the application of Article 13(8)(b) of the 1998 Order. I do not need to decide this issue and consider that it is better left for fuller argument in a case where the facts require a determination of the issue.

34. This leads back to the more straightforward question of whether there was evidence of a relevant change of circumstances. A relevant change of circumstances could be change resulting from a single event, such as the fracture claimed by the appellant, or resulting from a process. In either case there must be a change in the level of mobility or the level of attention or supervision required by the claimant which will satisfy the relevant tests relating to past and prospective duration of need - it is not the cause of this in itself which is relevant (Quinn v Department for Social Development [2004] NICA 22, paragraph 38).

35. I consider that the evidence from the Hungarian doctors, even read together with the medical information from Northern Ireland and with the oral evidence, does not establish that the appellant suffered a specific injury in March 2010. However, did it need to? The real question was whether there had been relevant change in terms of mobility and care. In assessing the possible change in the level of the appellant’s needs it was not necessary to identify what caused the change. The only relevance of the injury of March 2010 from the appellant’s point of view was not as a change in itself but to identify a possible starting point for the change.

36. The evidence of the Hungarian doctors does not establish that there had been a change in the appellant’s circumstances. It was for the appellant to establish that his circumstances had changed, in the sense that his care needs had increased or his mobility had become more restricted. He sought to do just that through his oral evidence at the hearing. Although the tribunal had the Hungarian documents before it, yet did not refer to them in the reasons for its decision, I do not consider that the tribunal failed to consider them. They simply did not assist the tribunal in making a material finding one way or the other. I do not accept that the tribunal materially erred in law by failing to consider the Hungarian documents, as has been submitted.

Ground 3 - the incident of March 2010

37. Mrs Carty submits that the tribunal has failed to address the issue of the alleged fall in March 2010. I do not agree. The tribunal records the appellant saying “I broke my vertebrae on 30 March 2010. I fell down the stairs”. It addresses this in its reasons saying, “He referred to fractured vertebraes in his neck in March 2010 but there was nothing in the notes to support this”. The tribunal therefore did address the issue. The tribunal noted that the appellant had attended hospital in October 2010 due to neck pain but that this had been diagnosed as a mild disc prolapse.

38. On all the evidence, the tribunal reached a conclusion concerning the alleged cervical fracture which was open to it. In particular, I consider that the reference in the Hungarian MRI scan report to “Status post fracturam vertebrae C5” is insufficiently specific to connect it to an event in March 2010. The context is one of long-standing neck problems which had involved neck surgery in 2005 and 2008. Moreover, the consultant surgeon whose report was discussed above referred to the Hungarian MRI scan in his letter of 7 December 2010. He noted merely that the MRI showed mild C4/C5 compression without reference to any fracture.

Ground 4 - adequacy of reasons

39. Mrs Carty further submits that the reasons of the tribunal are inadequate as they do not deal with the issue of diminished mobility. In his DLA434 application form, which led to the supersession decision, the appellant refers to limitation in walking by reason of dizziness which leads to more falls than before, to an inability to carry anything when walking, and to a need to be accompanied out of doors. He estimates his walking distance as 150 metres in five-six minutes before the onset of walking difficulties. In oral evidence he says that his walking distance in the summer was 100 metres, but was worse in autumn. He further talks about problems going out alone due to dizziness. In his claim form of September 2009 he had estimated a walking distance of 200m and had referred to dizziness as a side effect of his medication.

40. The tribunal rejected the general credibility of the applicant’s evidence, pointing to inconsistency in his evidence in relation to care needs in particular. The tribunal further relied on ocular observations, the lack of supportive evidence in the medical records, and the finding following a medical examination that he was fit for work for employment and support allowance (ESA) purposes. It is evident from the decision of the tribunal that it did not believe the appellant’s account of a change in his circumstances and therefore why the applicant’s appeal from the refusal to supersede a tribunal decision was refused.

41. It is not expressly stated that there has not been a relevant change of circumstances in terms of the applicant’s mobility. However, it is clear that the tribunal rejected the credibility of his assertion that his circumstances had changed in a relevant way in the relevant period. In particular, the appellant’s evidence on mobility is that he was walking 100 metres before the onset of walking difficulties. A tribunal could reasonably take the view that this was not evidence of a change of circumstances indicative of virtual inability to walk. Further, the appellant claimed that his outdoors walking was impaired by dizziness. However, that was also a previous feature of his claim as evidenced in the Hungarian medical report of 5 October 2009 and was not indicative of a change of circumstances.

42. I do consider that there is some force in Mrs Carty’s submission on this point. The reasons as stated by the tribunal are barely adequate. However, the case in hand is one where the appellant has applied for supersession. He carries the burden of proving that there has been, for example, a relevant change of circumstances. The tribunal does not spell out its findings on mobility, as Mrs Carty rightly argues. What the tribunal says is that “we do not see any evidence to suggest that there is any basis for superseding the original tribunal decision”. It is implicit from this that the tribunal finds that the appellant has not established to its satisfaction that his mobility has deteriorated to a relevant extent. Unlike a decision on a fresh claim, where a tribunal would be expected to give careful reasons for its decision on the evidence before it, where a claimant takes on himself the extra burden that goes with applying for supersession, and provides no clear evidence of any ground for supersession, there will be (possibly rare) cases where brief reasons explain the tribunal decision adequately. I think that this is one of them. The applicant has simply not advanced sufficiently credible evidence of any deterioration in his mobility to warrant detailed analysis.

43. If I am wrong about the adequacy of the tribunal’s reasons, I consider that the height of the evidence submitted by the appellant did not raise an arguable case of a relevant change in his circumstances, and no material error of law has occurred.

Ground 5 - ocular observations

44. Mrs Carty further questions the approach of the tribunal to its ocular observation of the appellant, as the tribunal’s observation of him carrying a crutch and a “heavy bag” was cited as a reason for not believing his account that he had problems using his arms. In his DLA434 supersession claim, the appellant has written “I am unable to carry anything when walking”. In evidence to the tribunal the appellant is recorded as saying “My arms are not functioning”. Mrs Carty submits that the tribunal should have put this apparent discrepancy to the appellant for comment, as per C87/10-11(DLA). She was instructed that the bag was not heavy, but contained the appellant’s medication and Hungarian medical reports.

45. In R3/01(IB)(T), at paragraph 27 it was said that “… a tribunal can use its own observations in reaching an assessment on credibility. It is however, strongly desirable that a tribunal seek a comment from the parties on specific observations of activity as opposed to a more generalised impression of the witness”. Later it was said at paragraph 28 “Where, however, a tribunal makes an observation which is merely confirmatory of existing evidence it can use that observation as an aid to assessment of the evidence before it without necessarily having to seek comment. Much will depend on whether or not a new issue is raised by the observations made”.

46. No new issue was raised by the tribunal here, such as might lead to a reduction in the appellant’s entitlement to DLA. The tribunal had found the appellant’s evidence to be inconsistent and not credible, citing his account of his wife needing to help him upstairs to the toilet. I consider that this is a case where the tribunal used its ocular observation to confirm its existing view of the appellant’s evidence. The tribunal observed the appellant’s arms functioning, contrary to his claim, and it observed him to carry a bag and his crutch when walking. It seems to me that the only explanation which could be advanced by the appellant for this inconsistency would be that his arm functioning had improved. However, this would rather tend to undermine his supersession request based on deterioration of his condition. Again, in the particular circumstances of this case, I do not consider that the tribunal has materially erred in law by failing to seek a comment from the appellant as to his ability to use his arms.

Ground 6 - mistake of fact

47. Mrs Carty finally submitted that the tribunal had made an error as to a material fact, referring in particular to a finding about the appellant’s past injury from kickboxing which, she submits, was ascribed to a period ten years later than it actually occurred. The tribunal was quoting an extract from the medical notes dated October 2008 which ascribed the kickboxing injury to a period ten years previously - ie 1998. The tribunal noted that the appellant had plates inserted into his neck as a result. The appellant instructed Mrs Carty that he last participated in kickboxing some 20 years ago and that the operation in 2005 was not the result of a kickboxing injury. It is clear to me that absolutely nothing turns on the question of whether the appellant’s neck injury and operation was due to kickboxing. The tribunal was concerned with the question of the extent of the appellant’s functional ability not the specific cause of any disability. There is no merit in this submission.

48. I do not accept the appellant’s submissions that the tribunal has erred in point of law and it follows that I must disallow the appeal.

(signed): O Stockman

Commissioner

10 January 2013

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