DR –v- Department for Social Development (DLA) [2010] NICom 2

 

Decision No:  C21/08-09(DLA)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

DISABILITY LIVING ALLOWANCE

 

 

Appeal to a Social Security Commissioner

on a question of law from a Tribunal's decision

dated 26 June 2007

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.     The decision of the appeal tribunal dated 26 June 2007 is in error of law. The error of law identified will be explained in more detail below.

 

2.     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.

 

3.     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.

 

4.     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.

 

5.     The legal effect of my decision, in terms of entitlement to disability living allowance (DLA) is that the appellant remains entitled to the higher rate of the mobility component and the lowest rate of the care component of that benefit, from and including 29 January 2007.

 

6.     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 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

 

7.     On 29 January 2007, a decision-maker of the Department made a decision which superseded an earlier decision of the Department dated 10 June 2001, and which awarded the appellant an entitlement to the higher rate of the mobility component and the lowest rate of the care component of DLA from and including 29 January 2007.

 

8.     An appeal against the decision dated 29 January 2007 was received in the Department on 6 February 2007. The appeal tribunal hearing took place on 26 June 2007. The appellant was present and was accompanied by his son. A presenting officer from the Department was also present. The appeal tribunal disallowed the appeal, and substituted its own decision. The substituted decision was that the appellant did not satisfy the conditions of entitlement to either the care or the mobility components of DLA from and including 29 January 2007.

 

9.     On 17 December 2007, an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service. On 17 January 2008, the application for leave to appeal was refused by the legally qualified panel member.

 

10.   On 7 February 2008, 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. The grounds cited by the applicant were that the medical evidence in the case was wrong, with specific reference to a discrete medical report.

 

11.   On 19 March 2008 observations were sought from Decision Making Services (DMS) and these were received on 17 April 2008. DMS supported the application. The basis for the agreement was the appeal tribunal’s reliance on a medical report which post-dated the decision under appeal. Observations were shared with the appellant on 30 April 2008.

 

12.   On 19 November 2008 I granted leave to appeal. In so doing I gave the following reason for granting leave to appeal:

 

‘Leave to appeal is granted as an arguable issue arises as to whether the appeal tribunal was entitled to rely on a medical report which post-dated the decision under appeal.’ 

 

13.   On 11 March 2009, I directed an oral hearing of the appeal. The oral hearing took place on 24 April 2009. At the oral hearing, the appellant was not represented but was accompanied by a friend. The Department was represented by Mr Kirk of the DMS section. Gratitude is extended to Mr Kirk for his detailed and constructive observations, comments and suggestions.

 

         Errors of law

 

14.   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.

 

15.   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

 

16.   I should state that at the outset of my consideration of this appeal that the degree of detail in the record of proceedings for the appeal tribunal hearing demonstrates that the appeal tribunal was meticulous in its evidence-gathering process and in its record of the submissions made by the parties to the proceedings. Further, I would also note that the same degree of care and attention has been devoted to the preparation of the statement of reasons for the appeal tribunal’s decision.

 

         The submissions of the parties

 

17.   In the application for leave to appeal to the Social Security Commissioner, the appellant submitted that the decision of the appeal tribunal was in error of law as a specific medical report relied on by the appeal tribunal was wrong, and that his walking ability was less than had been suggested in that medical report.

 

18.   In the initial written observations on the application for leave to appeal, DMS supported the application, but on a different ground to that cited by the appellant. DMS submitted that a particular medical report which had been relied on by the appeal tribunal post-dated the decision under appeal and that, accordingly, consideration of this evidence fell foul of the rule in Article 13(8)(b) of the Social Security (Northern Ireland) Order 1998, as amended.

 

19.   At the oral hearing of the appeal, DMS submitted that there were concerns in relation to the decision of the appeal tribunal on three other grounds, namely:

 

(i)     whether the appeal tribunal had properly considered the issue that the decision under appeal was a supersession;

 

(ii)   whether the appeal tribunal had provided an adequate ‘warning’ to the appellant in respect of his existing award; and

 

(iii) whether the appeal tribunal, in considering whether the appellant should have an entitlement to the higher rate of the mobility component of DLA, considered all of the factors set out in regulation 12 of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992, as amended.

 

         Consideration of evidence which post-dated the decision under appeal

 

20.   Article 13(8)(b) of the Social Security (NI) Order 1998 provides –

 

‘(8) In deciding an appeal under this Article, an appeal tribunal –

 

(a)……….

 

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

 

21.   Article 13(8)(b) exhorts appeal tribunals to concentrate on the decision under appeal and, more particularly, the date of the decision under appeal. The applicability of Article 13(8)(b) has to be considered, however, in the context of the social security appellate structure. It is inevitable that the appeal tribunal hearing will take place at a date later to the date of the decision under appeal. In the majority of cases, the date of the appeal tribunal hearing will be at least some months after the date of the decision under appeal and, in some rare instances, may take place at a date some years after the date of the decision under appeal.

 

22.   It is equally often the case that the appellant, or any representative whom the appellant might have, and, in rare instances, the Department as the other party to the proceedings may also have, between the date of the decision under appeal and the date of the appeal tribunal hearing, sought to adduce further evidence considered to be relevant to the issues arising in the appeal. Moreover, the appeal tribunal itself has the legislative power under regulation 51(4) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, to adjourn an appeal tribunal of its own motion for the purpose, for example, of production of additional evidence.

 

23.   In oral hearings, where the appellant is in attendance, the appeal tribunal will also usually hear the oral evidence of the appellant given, therefore, at a time which post-dates the decision under appeal.

 

24.   My understanding is that in appeals involving DLA in Northern Ireland, there is a procedure which results in the general practitioner (GP) records relating to the appellant being made available to the appeal tribunal in the majority of cases. Of course, GP records may be made available in appeals relating to other social security benefits, although such availability is not routine. Those medical records may also include entries and reports which post-date the decision under appeal.

 

25.   In short, therefore, an appeal tribunal may find that there is before it evidence which post-dates the decision under appeal. The question arises, therefore, as to how the appeal tribunal should deal with such evidence in light of the rule set out in Article 13(8)(b) of the Social Security (NI) Order 1998.

 

26.   In R(DLA) 2/01, Commissioner Jacobs considered how disability appeal tribunals (as they then were) should consider evidence which post-dated the decision under appeal, in light of a then extant rule in section 33(7) of the Social Security Administration Act 1992. Section 33(7) provided that a disability appeal tribunal should ‘… not take into account any circumstances not obtaining at the time when the decision appealed against was made.’

 

27.   In R(DLA) 2/01, the date of the decision under appeal was 15 September 1998. The appeal tribunal hearing took place on 18 February 1999, when the appeal tribunal had before it oral evidence from the appellant that he had had a serious operation in January 1999, and also had before it a letter from the appellant’s GP, dated 3 November 1998. The statement of reasons for the appeal tribunal’s decision recorded, in two separate places, that ‘we hear’ the case on the basis of the evidence which was before the adjudication officer on 15 September 1998.

 

28.   At paragraph 9 of the decision, Commissioner Jacobs noted that:

 

‘… In the case of a claim for a disability living allowance, the jurisdiction {of an Appeal Tribunal} is limited to the inclusive period from the date of claim to the date of the decision under appeal.  The effect is also to limit the evidence that is relevant to the appeal.  The only evidence that is relevant is evidence that relates to the period over which the tribunal has jurisdiction.  However, it is the time to which the evidence relates that is significant, not the date when the evidence was written or given.  It does not limit the tribunal to the evidence that was before the officer who made the decision.  It does not limit the tribunal to the evidence that was before the officer who made the decision.  It does not limit the tribunal to evidence that was in existence at that date.  If evidence is written or given after the date of the decision under appeal, the tribunal must determine the time to which it relates.  If it relates to the relevant period, it is admissible.  If it relates to a later time, it is not admissible.’

 

29.   In relation to the case before him, Commissioner Jacobs found that the appeal tribunal appeared wrongly to have limited itself to the evidence which was before the adjudication officer. In relation to the evidence which post-dated the decision under appeal, and which was before the appeal tribunal, Commissioner Jacobs noted, at paragraph 11:

 

‘The claimant told the tribunal that his disablement at the time of the hearing was the same as that at the date of the adjudication officer’s decision. The tribunal’s statement records that the claimant had had a serious operation on 8 January 1999 and was now recovering. Although the statement does not say this in so many words, the implication is that although the claimant was recovering from his operation, he was nevertheless worse than he had been at the date of the adjudication officer’s decision. That may have been correct. However, that did not mean that by appropriate questioning the tribunal could not have obtained relevant evidence from the claimant as to his condition at the relevant time, perhaps by comparison with his condition at the date of the hearing. The tribunal was not entitled to reject the claimant’s oral evidence on the ground that it was not before the adjudication officer. The same point applies with greater force to the claimant’s evidence in his letter of appeal to the tribunal which was written about two weeks after the adjudication officer’s decision. This evidence was also covered by the tribunal’s blanket rejection.’

 

30.   In R(DLA) 3/01, Commissioner Jacobs considered the effect of section 12(8)(b) of the Social Security Act 1998, the equivalent in Great Britain to Article 13(8)(b) of the Social Security (Northern Ireland) Order 1998, in light of his comments in R(DLA) 2/01. At paragraph 58 he stated:

 

‘Section 12(8)(b) limits an appeal tribunal’s jurisdiction by preventing it taking into account a fresh circumstance. It is only concerned with evidence in this respect: evidence is not admissible unless it relates to circumstances obtaining at the date of the decision under appeal. I stand by the statement of the law that I set out in [R(DLA) 2/01] para.9 … In relating later evidence to the time of the decision, the claimant’s evidence is admissible, although it will, like all evidence, have to be weighed by the appeal tribunal.’

 

31.   The decisions in R(DLA) 2/01 and R(DLA) 3/01 were considered by Commissioner Brown in C24/03-04(DLA). In that case, the Commissioner stated, at paragraphs 6 to 8:

 

‘6.  I shall deal first with the third ground of appeal.  The ground is based on the provisions of Article 13(8)(b) of the Social Security (Northern Ireland) Order 1998.  That provision is as follows: -

 

“In deciding an appeal under this Article, an appeal tribunal –

 

a)   …

 

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

 

7.   This is a mandatory provision.  It prevents the Tribunal from taking account of circumstances not obtaining at the date of the decision under appeal. It does not relate to evidence whenever it came into being, which is relevant to what the circumstances were up to the date of the relevant decision.  It does not prevent the Tribunal taking into account evidence obtained after the decision under appeal was made, for the purpose of drawing inferences as to the circumstances obtaining when or before the decision was made.  For example, if a claimant tells the Tribunal that his situation now is the same as it was at the date of the decision under appeal and produces evidence as to his present walking ability, why should that latter evidence if accepted not be used to determine the circumstances at the date of the claim?

 

The Tribunal in deciding the appeal must not take into account circumstances which did not obtain at the time of the decision under appeal.  However, it is entitled to take account of any evidence which indicates what those circumstances were.

 

 In this connection I would refer in particular to decision CDLA/4734/99, a decision of Mr Commissioner Jacobs in Great Britain.  As Commissioner Jacobs stated at paragraph 57 of that decision: -

 

“There is a difference between a circumstance and evidence of that circumstance.”

 

At paragraph 58 he stated: -

 

“Section 12(8)(b) [the Great Britain equivalent to Article 13(8)(b)] limits an Appeal Tribunal’s jurisdiction by preventing it taking into account a fresh circumstance.  It is only concerned with evidence in this respect: evidence is not admissible unless it relates to circumstances obtaining at the date of the decision under appeal.  I stand by the statement of the law that I set out in CDLA/2934/1999, paragraph 9: -

 

“In the case of a claim for a Disability Living Allowance, the jurisdiction [of an Appeal Tribunal] is limited to the inclusive period from the date of claim to the date of the decision under appeal.  The effect is also to limit the evidence that is relevant to the appeal.  The only evidence that is relevant is evidence that relates to the period over which the tribunal has jurisdiction.  However, it is the time to which the evidence relates that is significant, not the date when the evidence was written or given.  It does not limit the tribunal to the evidence that was before the officer who made the decision.  It does not limit the tribunal to evidence that was in existence at that date.  If evidence is written or given after the date of the decision under appeal, the tribunal must determine the time to which it relates.  If it relates to the relevant period, it is admissible.  If it relates to a later time, it is not admissible.””

 

8.   I can put the matter no better than Mr Commissioner Jacobs did in the above extract with the caveat as regards the final sentence in relation to which I would add only this, that the evidence may relate to the period over which the Tribunal has jurisdiction even though it also relates to a later time so long as it sheds light on the circumstances obtaining at the date of the decision under appeal …’

 

32.   How were these principles applied in the instant case?

 

33.   As was noted above, the decision under appeal to the appeal tribunal was a supersession decision of the Department, dated 29 January 2007. The appeal tribunal hearing took place on 26 June 2007.

 

34.   The appeal tribunal’s decision notices read as follows:

 

‘Appeal Disallowed.

 

(The claimant) does not satisfy the conditions of entitlement to the mobility component of DLA at any rate from and including 29/1/2007.’

 

         and

 

‘Appeal disallowed.

 

(The claimant) does not satisfy the conditions of entitlement to the care component of DLA at any rate from and including 29/1/2007.’

 

35.   The record of proceedings for the appeal tribunal’s decision notes that the appeal tribunal had before it:

 

‘Scheduled documents and departmental submission.

 

Medical records.’

 

36.   The fact that the appellant’s GP records were available to the appeal tribunal is of significance. It is clear, from the statement of reasons for the appeal tribunal’s decision, that the appeal tribunal relied on evidence contained within the GP records in arriving at its decision. The statement of reasons begins with the following:

 

‘The Tribunal noted that the decision under appeal was that of 29.1.07. This decision superseded and changed the decision dated 10.6.01.

 

Having considered all of the available evidence, the Tribunal was of the view that, as contrasted with the Examining Medical Practitioner findings of 14.5.01, the current evidence suggested an improvement in the appellant’s functional ability since the decision to award the middle rate care component was made. The Tribunal was satisfied that there was a relevant change of circumstances such as to satisfy the requirements of Regulation 6(2)(g)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations (NI) 1999.’

 

37.   It is clear that ‘all of the available evidence’ included the evidence contained within the appellant’s GP records. The statement of reasons for the appeal tribunal’s decision contains the following:

 

‘MOBILITY

 

On the basis of information available from (the claimant’s) medical records the Tribunal considered it appropriate to look at the mobility award.

 

It was noted that (the claimant) was discharged from the Cardiology Department on 2.3.07 at which time his exercise tolerance was assessed as being around “100-200 yards on the flat”. The other evidence regarding mobility was the opinion of the EMP (17.1.07) and the GP (22.9.06). The EMP felt that (the claimant) could walk up to 50 metres without having to stop in about 2 minutes and that he would be slow due to shortness of breath.

 

Dr Logan noted that (the claimant) complains of back and leg pains and breathlessness which limit his walking but did not given [sic] an opinion as to maximum distance.

 

The Tribunal had asked (the claimant) about his use of a wheelchair on the day of the hearing and were not convinced by his responses that it was really necessary. It was noted that (the claimant’s) own GP had recorded that no aids were used by him. Overall, (the claimant) presented to the Tribunal as an appellant who had a tendency to overstate his case and this affected his credibility.

 

Assessing all of the evidence as regards mobility, the Tribunal preferred the clear evidence available from the records of (the claimant’s) attendance at and discharge from the Cardiology Department.

 

On this basis, the Tribunal could not be satisfied that the existing award of high rate mobility component was appropriate.’

 

38.   It is clear from the penultimate paragraph of the section of the statement of reasons quoted above, that in its assessment of whether the appellant satisfied the conditions of entitlement to the mobility component of DLA, the appeal tribunal placed significant emphasis, derived from the appellant’s GP records, concerning the appellant’s attendance at, and discharge from, the Cardiology Department. It is also clear that the appeal tribunal was drawing a distinction between the conclusions of the examining medical practitioner, which had been utilised by the decision-maker as the basis for maintaining an entitlement to the higher rate of the mobility component, and the conclusions contained in the discharge report from Cardiology.

 

39.   The appeal tribunal noted that the appellant was discharged from the Cardiology Department on 2 March 2007, and noted the evidence concerning the limitations on his mobility at that date. The decision under appeal, however, is 19 January 2007. That means that the evidence on which the appeal tribunal relied post-dated the decision under appeal. In turn, that means that the reliance on that evidence would have to satisfy the principles set out in R(DLA) 2/01 and R(DLA) 3/01, as approved in  C24/03-04(DLA).

 

40.   In my view, the principles set out in R(DLA) 2/01 and R(DLA) 3/01 concerning reliance on evidence which post-dates the decision under appeal, are not satisfied in the instant case. Of course, the appeal tribunal was entitled to consider evidence which post-dated the decision under appeal. Thereafter, however, the appeal tribunal was under a duty to determine whether the post-dated evidence relates to the period under its consideration. As was noted above, at paragraph 9 of R(DLA) 2/01, Commissioner Jacobs noted that:

 

‘… If evidence is written or given after the date of the decision under appeal, the tribunal must determine the time to which it relates.  If it relates to the relevant period, it is admissible.  If it relates to a later time, it is not admissible.’

 

41.   In the instant case, I cannot see, from the statement of reasons for the appeal tribunal’s decision that the appeal tribunal had related the evidence which post-dated the decision under appeal to the period under its consideration - that is the period up to the date of the decision under appeal. There is no doubt that the period between the date of the decision under appeal, that is 29 January 2007, and the date of the evidence on which the appeal tribunal relied, that is 2 March 2007, is short and I gave serious consideration as to whether it could be implied from the appeal tribunal’s reasoning that it was relating the post-dated evidence to the period under its consideration. I am of the view that that conclusion cannot be derived from the appeal tribunal’s reasoning. The reliance on the evidence which post-dated the decision under appeal is of such significance that there had, in my view, to be an explicit relation of that evidence to the period under consideration.

 

42.   The failure of the appeal tribunal to relate specific evidence on which it relied, in arriving at its decision with respect to the mobility component of DLA, to the period under its consideration did not accord with the principles set out in R(DLA) 2/01 and R(DLA) 3/01, as approved in C24/03-04(DLA). Accordingly, the decision of the appeal tribunal is in error of law.

 

         The supersession issue

 

43.   The decision under appeal to the appeal tribunal was a decision dated 29 January 2007, in which a decision-maker of the Department made a decision which superseded an earlier decision of the Department dated 10 June 2001, and which awarded the appellant an entitlement to the higher rate of the mobility component and the lowest rate of the care component of DLA from and including 29 January 2007.

 

44.   At the oral hearing of the appeal, DMS submitted that there were concerns in relation to the decision of the appeal tribunal on the ground as to whether the appeal tribunal had properly considered the issue that the decision under appeal was a supersession.

 

45.   In C12/08-09(DLA), at paragraphs 48 to 53, I said the following about the appeal tribunal’s duties with respect to the proper identification of a supersession decision, in appeals relating to DLA:

 

‘48.      The appeal tribunal was under a specific duty to determine whether the decision under appeal was correct.  As that decision was a supersession decision the duty was to determine whether there were grounds to supersede under regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.

 

49.       If the appeal tribunal determined that the decision-maker did not have grounds to supersede the earlier decision then that decision would continue to have effect.

 

50.       If the appeal tribunal determined that the decision-maker did have grounds to supersede the earlier decision then the appeal tribunal could have gone on to consider entitlement to benefit, in light of the substantive rules for entitlement to DLA.

 

51.       Finally, the appeal tribunal was under a duty to determine the effective date from which any supersession decision should take effect.

 

52.       The appeal tribunal’s duty is not only to consider the supersession issue, including grounds, entitlement and effective date, but to make clear that it has done so.  It is not sufficient for it to be, as DMS suggests, implicit from the appeal tribunal’s documentation that the supersession issue was addressed.  That consideration must be explicit from the decision notice, the statement of reasons or a combination of both.  In the present case, I am of the view that it is not even implicit that consideration was given to the supersession issue.

 

53.       The consideration of the issues raised by the appeal is expressly a part of the appeal tribunal’s inquisitorial role (on which issue see the further comments of the Tribunal of Commissioners in Great Britain in R(IB) 2/04 at paragraph 32).  That would mean that the supersession issue ought to have been addressed, in any event.’

 

46.   In the instant case, Mr Kirk from DMS submitted that the appeal tribunal, in determining that the decision-maker, on 29 January 2007, did have grounds to supersede an earlier decision of the Department dated 10 June 2001 and, more particularly, in identifying that there had been a relevant change of circumstances, concentrated on changes in the appellant’s functional ability, with respect to the care component, and did not identify grounds for removal of entitlement to the mobility component.  

 

47.   In C14/04-05(DLA), at paragraph 7, Commissioner Brown stated:

 

‘… DLA is a composite benefit and … once grounds for supersession have been established both components can be looked at. R2/95(DLA) and CIB/4751/2002 so indicate.’

 

48.   I am satisfied that the appeal tribunal did set out, in the initial section of the statement of reasons, quoted above, the basis upon which it determined that there were grounds to supersede the earlier decision of the Department, dated 10 June 2001. Those grounds were identified by the appeal tribunal as a relevant change of circumstances, namely an improvement in the appellant’s functional ability, sufficient to satisfy regulation 6(2)(g)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended. I am also satisfied that the appeal tribunal identified evidence sufficient to support the change of circumstances.

 

49.   Having done so, the appeal tribunal was thereafter entitled to consider whether the substantive rules of entitlement to benefit, including the rules of entitlement to the mobility component of DLA, were satisfied. Of course, and as I have found above, it was the manner in which the appeal tribunal addressed the evidence available to it with respect to whether the substantive rules of entitlement were satisfied, that it erred in law.

 

50.   Although the issue is hypothetical, I might have taken a different view if the appeal tribunal, instead of identifying that the relevant change of circumstances was an improvement in the appellant’s functional ability, had identified the change as being an improvement in his mobility, and had utilised, as support for the conclusion, the evidence which post-dated the decision under appeal.

 

51.   There is one aspect of the supersession issue which does concern me, however. As was noted at paragraph 51 of C12/08-09(DLA), the appeal tribunal was under a duty to determine the effective date from which any supersession decision should take effect. It is arguable that the identified effective date is evident from the content of the appeal tribunal’s decision notices ie 29 January 2007. It is not clear, however, from the statement of reasons for the appeal tribunal’s decision the date from which the appeal tribunal concluded that there had been an improvement in the appellant’s functional ability, sufficient to support a relevant change of circumstances for the purposes of regulation 6(2)(g)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.

 

         The potential removal of an existing award

 

52.   At the oral hearing of the appeal, Mr Kirk from DMS submitted that there were concerns in relation to the decision of the appeal tribunal on the ground as to whether the appeal tribunal had provided an adequate ‘warning’ to the appellant in respect of his existing award. More particularly, Mr Kirk was concerned that as the appeal submission, prepared for the appeal tribunal hearing, had not brought the issue of entitlement to the higher rate of the mobility component of DLA into question.

 

53.   In C15/08-09(DLA), I gave detailed guidance to appeal tribunals on the approach to be taken in cases where the decision under appeal incorporates an existing award. At paragraph 77 I stated:

 

‘Accordingly, in my view, it is safest and best practice for an appeal tribunal in each case where the decision under appeal incorporates an existing award:

 

(i)         to explain to the appellant that the appeal tribunal is under a duty to consider all of the evidence which is before it, and to ensure that the decision under appeal to it is correct;

 

(ii)        to outline to the appellant the powers available to the appeal tribunal which are:

 

·        to make a decision which is more favourable to the appellant;

·        to confirm the decision of the Department with respect to the existing award; and

·        to make a decision which is less favourable to the appellant.

 

(iii)       to outline to the appellant, the options available to him, which are:

 

·        to continue with the appeal tribunal hearing;

·        to withdraw the appeal at any stage prior to its determination;

·        to seek a brief adjournment to consider the implications of what has been described, or a longer adjournment to seek further legal advice in light of that description.

 

(iv)       to ensure that all explanations are provided in appropriate terms and language, and to be satisfied that the appellant understands the relevance and context of the powers of the appeal tribunal and the options available to him;

 

(v)        to ensure that a record of the explanations given by the appeal tribunal, in respect of its powers and the appellant’s options is entered into the record of proceedings for the appeal tribunal’s hearing;

 

(vi)       to ensure that where a statement of reasons for the appeal tribunal’s decision is requested and given that the reasons for the exercise of the discretion to make a decision which is less favourable are set out;

 

(vii)      to ensure that in a case determined on the papers alone and, where the appeal tribunal is considering exercising its judicial discretion to make a decision which is less favourable to the appellant, that it is satisfied that an appellant has had sufficient notice of the appeal tribunal’s intention to consider making a decision which is less favourable, which will be likely to involve adjourning the appeal, and providing an appropriate description of the appeal tribunal’s powers and the appellant’s options in light of those powers.’

 

54.   In the instant case, having looked at the record of proceedings and, in particular, specific references on pages 1 and 6 of that record, I am satisfied that the appeal tribunal’s handling of the issue of its powers with respect to the existing award, and the appellant’s options in light of those powers, was wholly in keeping with the principles set out in C15/08-09(DLA).

 

         The rules of entitlement to the higher rate of the mobility component

 

55.   At the oral hearing of the appeal, Mr Kirk from DMS submitted that there were concerns in relation to the decision of the appeal tribunal on the ground whether the appeal tribunal, in considering whether the appellant should have an entitlement to the higher rate of the mobility component of DLA, considered all of the factors set out in regulation 12 of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992, as amended.

 

56.   The legislative provisions for the mobility component of DLA are to be found in section 73 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 and regulation 12 of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992, all as amended.

 

         Section 73(1) of the 1992 Act provides that:

 

‘73.—(1) Subject to the provisions of this Act, a person shall be entitled to the mobility component of a disability living allowance for any period in which he is over the relevant age and throughout which—

 

(a) he is suffering from physical disablement such that he is either unable to walk or virtually unable to do so;

 

(b) he falls within subsection (2) below;

 

(c) he falls within subsection (3) below; or

 

(d) he is able to walk but is so severely disabled physically or mentally that, disregarding any ability he may have to use routes which are familiar to him on his own, he cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time.’

 

         Regulation 12 of the 1992 Regulations provides that:

 

‘Entitlement to the mobility component

 

12.—(1) A person is to be taken to satisfy the conditions mentioned in section 73(1)(a) (unable or virtually unable to walk) only in the following circumstances—

 

(a) his physical condition as a whole is such that, without having regard to circumstances peculiar to that person as to place of residence or as to place of, or nature of, employment—

 

(i) he is unable to walk,

 

(ii) his ability to walk out of doors is so limited, as regards the distance over which or the speed at which or the length of time for which or the manner in which he can make progress on foot without severe discomfort, that he is virtually unable to walk, or

 

(iii) the exertion required to walk would constitute a danger to his life or would be likely to lead to a serious deterioration in his health; or

 

(b) he has had both legs amputated at levels which are either through or above the ankle, or he has one leg so amputated and is without the other leg, or is without both legs, to the same extent as if it, or they, had been so amputated.’

 

57.   The submission of Mr Kirk relates to the requirements of regulation 12(i)(a)(ii).

 

58.   In relation to that submission, I would find as follows. In C44/97(DLA), and in relation to regulation 12(1)(a)(ii), Commissioner Brown noted the following, at paragraphs 14 to 16:

 

‘14.            It seems to me that the Tribunal in the present case also appreciated the regulation 12(1)(a)(ii) test and, in the context, the finding that the claimant is able to walk a reasonable distance with a reasonable gait at a reasonable speed is a proper finding and one that it perfectly acceptable on the evidence before the Tribunal. 

 

15. Helpful guidance is also available from Chief Commissioner Chambers in C3/87(MOB), a case concerning mobility allowance which is directly relevant to the present case.  In that case at paragraph 7 Chief Commissioner Chambers stated as follows:-

 

"... In my view the decision of the Court of Appeal should not be interpreted as requiring the Tribunal to provide answers to the four questions raised by the Regulation in terms of a distance, a speed, a time and a description of the child's manner of walking.  Undoubtedly, those questions must be specifically addressed and answers given; but to require the Tribunal to attempt to quantify distances, speeds, etc. would be to impose an impossible burden upon them.  It is, moreover, difficult to see what purpose it would serve to provide such answers; as it would remain for the Tribunal to decide whether or not the child was unable or virtually unable to walk.  If there are to be limits of distance, speed, etc marking the level below which claimants qualify for mobility allowance, it is for Parliament or the Rule-making authority to set them; not the Medical Appeal Tribunal. ..."

 

The Court of Appeal decision referred to by the Chief Commissioner is the unreported case of Raymond Murray (a minor) v DHSS (1987) in which Kelly LJ gave the judgment of the Court.

 

16. Applying this approach to the present case I conclude that it is not necessary for the Tribunal to attempt to quantify distances, speeds, manner of gait or level of discomfort.  The Tribunal has directed its mind to the statutory test and has come to a conclusion and a decision that could not be described as perverse and in the circumstances it is not open to me to interfere with it.’

 

59.   As in C44/97(DLA), in the instant case, while it would have been preferable, in my view, for the appeal tribunal to specifically address the further factors of time, speed, manner of walking and discomfort, I am satisfied that the appeal tribunal had directed its mind to the statutory test. Unfortunately, and as was noted above, it was in relation to how the appeal tribunal addressed specific evidence with respect to that statutory test that the appeal tribunal erred in law.

 

 

 

 

         Disposal

 

60.   The decision of the appeal tribunal dated 26 June 2007 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.

 

61.   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.

 

62.   The legal effect of my decision, in terms of entitlement to DLA is that the appellant remains entitled to the higher rate of the mobility component and the lowest rate of the care component of that benefit, from and including 29 January 2007.

 

63.   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 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.

 

64.   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 29 January 2007, in which a decision-maker of the Department made a decision which superseded an earlier decision of the Department dated 10 June 2001, and which awarded the appellant an entitlement to the higher rate of the mobility component and the lowest rate of the care component of DLA from and including 29 January 2007;

 

(ii)   the appellant will wish to consider what was said at paragraph 77 of C16/08-09(DLA) concerning the powers available to the appeal tribunal and the appellant’s options in relation to those powers;

 

(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):  Kenneth Mullan

 

Commissioner

 

 

 

6 January 2010