Northern Ireland - Social Security and Child Support Commissioners' Decisions

LY-v-Department for Social Development (DLA) [2013] NICom 60

Decision No:  C10/13-14(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 April 2012

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.     This is a claimant’s application for leave to appeal from the decision of an appeal tribunal sitting at Belfast on 2 April 2012.

 

2.     I grant leave to appeal and with the consent of the parties I treat the application as an appeal.  I allow the appeal and I set aside the decision of the appeal tribunal under Article 15(8)(b) of the Social Security (NI) Order 1998.  I refer the case to a newly constituted tribunal for redetermination.

 

         REASONS

 

         Background

 

3.     The applicant was previously awarded the high rate of the mobility component of disability living allowance (DLA) by the Department for Social Development (the Department) from 26 May 2010 to 25 May 2011.  She made a renewal claim on the basis of needs arising from fibromyalgia, spinal pain, migraines and dizziness.  This was disallowed on 15 June 2011.  She appealed.

 

4.     A tribunal heard and disallowed the appeal on 2 April 2012.  The applicant requested a statement of reasons for the tribunal’s decision.  This was issued to her on 20 June 2012.  The applicant sought leave to appeal to the Social Security Commissioner but this was refused by the legally qualified member (LQM) of the tribunal in a determination issued on 31 July 2012.  By an application of 30 August 2012 the applicant requested a Social Security Commissioner to grant leave to appeal.

 

         Submissions

 

5.     The applicant, now represented by Mr Hatton of Law Centre NI, submits that the tribunal erred in law (in summary) as:

 

(i)        it permitted a procedural irregularity capable of making a material difference to the outcome or fairness of the proceedings;

 

(ii)       it failed to give adequate reasons for its findings on material matters.

 

6.     The Department was invited to make observations on the applicant’s grounds of application.  Mrs Hulbert responded on behalf of the Department.  She submits that the tribunal did not err in law and opposes the application.

 

         The tribunal decision

 

7.     The proceedings involve consideration of two tribunal decisions.  The first was made on 14 February 2012 and resulted in adjournment to enable the applicant to obtain a report from a consultant neurologist, arising from her statement to the tribunal that she had been told that she was experiencing seizures consistent with temporal lobe epilepsy.  The LQM of the tribunal directed that the next hearing should not be listed as a “special” hearing in order that the appeal could be heard as soon as possible.

 

8.     The second decision was the substantive decision in the case.  This was given by a differently constituted tribunal on 2 April 2012.  That hearing proceeded in the absence of any consultant neurologist’s report and resulted in the disallowance of the appeal.

 

9.     The tribunal relied on the evidence of the applicant herself in relation to low rate mobility and care, and rejected her evidence in relation to a high level of disability in relation to high rate mobility and preparing a main cooked meal.  In rejecting her evidence the tribunal relied on the report of the examining medical practitioner.  It indicated that it had regard to the general practitioner notes and records to the “additional medical evidence which has been submitted today in support of the appeal”.

 

         Hearing

 

10.   I held an oral hearing of the application.  The applicant did not attend but was represented by Mr Hatton of Law Centre (NI).  The Department was represented by Mrs Hulbert of Decision Making Services.

 

11.   Mr Hatton submitted that at the first hearing before the adjourned tribunal the applicant made the case that she had a need for supervision arising from seizures which had been identified as arising possibly from temporal lobe epilepsy.  The first tribunal adjourned for a neurologist’s report, but such a report was not obtained for the second tribunal.  Mr Hatton acknowledged that the applicant pressed for her appeal to be determined without the report, but nevertheless submitted that the issue of seizures was not addressed by the second tribunal.  He submitted that, thereby, the tribunal failed to address an issue raised on the appeal and had acted unfairly.  He submitted that the tribunal should have clarified to the applicant that this was a new hearing and that she should therefore raise all relevant issues before it afresh.

 

12.   Mr Hatton further submitted that the tribunal failed to consider all the evidence before it, pointing to a specific piece of medical evidence which had been handed to the first tribunal hearing, but was nowhere mentioned or referred to by the second tribunal.  This was a letter from her consultant rheumatologist referring her to a consultant neurologist for investigations following her report of a seizure involving unconsciousness, accompanied by incontinence and mouth trauma.  This seizure would have occurred shortly before the date of the Department’s decision in the case.  He further referred to the evidence that the applicant was prescribed anti-convulsant medication between the date of decision and the date of appeal.

 

13.   If the tribunal had considered the issue of seizures, Mr Hatton submitted that it had not made adequate findings of fact on the issue and that it did not give reasons why the applicant would not have resulting supervision needs, or how it would impact on her ability to prepare a main cooked meal safely.

 

14.   Mrs Hulbert opposed the grounds advanced by Mr Hatton.  She submitted that the tribunal had rejected the credibility of the applicant, particularly in the light of the lack of any neurological findings.  However, she acknowledged that there was merit in the point made regarding the adequacy of the tribunal’s reasons, particularly in the context of its lack of reference to the letter of the consultant rheumatologist.

 

         Assessment

 

15.   I am satisfied from the record of proceedings that the tribunal had regard to the issue of seizures.  Had the applicant agreed to a further adjournment of the proceedings pending investigation and report of her possible epilepsy, then that could have provided considerable assistance to the tribunal in its assessment of any possible supervision needs.  As it was, the tribunal had to rely on the oral evidence of the applicant and some circumstantial evidence tending to support her account.  Among that evidence was the consultant’s letter.  However, from the tribunal’s statement of reasons, or otherwise from the record of proceedings, it is not possible to say whether or not the tribunal took into account the letter of the consultant, Dr M, dated 24 August 2011.  Therefore I cannot say how the tribunal assessed the weight of that evidence.

 

16.   More generally, it is implicit from the tribunal decision that a lack of evidence of any significant neurological findings was a factor in its decision.  However, this would imply that a lack of results from any investigation (as yet) was counted as a negative rather than a neutral factor in the assessment of the applicant’s supervision needs.  I consider that this would be an erroneous approach.  It is long established that there is no requirement that a claimant’s evidence should be corroborated (R(SB)33/85).

 

17.   I accept Mr Hatton’s submission that the tribunal did not adequately explain its reasons for rejecting the applicant’s account of a need for supervision arising from seizures.  Following the decision of the Court of Appeal of England and Wales in R(Iran) v. Secretary of State for the Home Department [2005] EWCA Civ 982, I must therefore conclude that the tribunal has erred in law by failing to give reasons or adequate reasons for findings on material matters.

 

18.   I set aside the decision of the appeal tribunal and I refer the appeal to a newly constituted tribunal for redetermination.

 

19.   The new tribunal shall give consideration to all the issues raised by the applicant, who should be aware that her success in the proceedings before me does not necessarily indicate any increased prospect of success on appeal before the new tribunal.

 

 

(signed):  O Stockman

 

Commissioner

 

 

 

22 August 2013