Northern Ireland - Social Security and Child Support Commissioners' Decisions

JG-v-Department for Social Development (DLA) [2011] NICom 162

Decision No:  C99/10-11(DLA)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

DISABILITY LIVING ALLOWANCE

 

 

Application by the claimant for leave to appeal

and appeal to a Social Security Commissioner

on a question of law from a Tribunal’s decision

dated 31 July 2009

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1. This is an application by the claimant for leave to appeal against the decision of the tribunal, affirming the decision of a decision-maker, to the effect that the claimant is not entitled to either rate of the mobility component and any rate of the care component of disability living allowance (DLA) from and including 5 July 2009.

 

2. Leave to appeal is granted.  By virtue of regulation 11(3) of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999, I treat and determine this application as an appeal as both parties, through their advocates, have given their consent.

 

3. The claimant had an award of the higher rate of the mobility and the middle rate of the care component of DLA from 5 July 2007 to 4 July 2009.  He made a renewal claim for DLA on 19 January 2009.  On 3 April 2009 a decision-maker disallowed the claimant’s claim from and including 5 July 2009.  On 24 April 2009 a letter of appeal was received.  The appeal was heard on 31 July 2009 and the tribunal confirmed the decision of 3 April 2009.  Leave to appeal to a Commissioner was sought from the legally qualified member of the tribunal.  This application was late as it was not received until 29 December 2009, more than five weeks late.  (The application for leave to appeal ought to have been made within one month of the date that the statement of reasons for the tribunal’s decision was sent to the applicant and the date of sending was 20 October 2009.)  The late application for leave to appeal was rejected on 22 January 2010 as the legally qualified member found no special reasons to accept it.  However, on 28 September 2010 a Commissioner accepted the late application for special reasons.  Accordingly the application for leave to appeal is before me.

 

4. Miss Fionnuala McVeigh of G R Ingram & Company, Solicitors, represented the claimant, while Mr John Kirk of Decision Making Services represented the Department at the hearing of the appeal before me.

 

5. Four issues have been raised by this appeal.  I will deal with them in turn.

 

6. It was submitted by the claimant’s solicitors in written submissions that Article 6 of the European Convention on Human Rights has been breached as the claimant did not have the benefit of legal representation at his hearing to ensure full and accurate representation of his arguments.  The case was listed for an oral hearing, primarily to deal with this point.   Article 6(1) which is set out in Schedule 1 of the Human Rights Act 1998, states, inter alia, as follows:

 

“In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. …”

 

It had been contended that it was in breach of the Article for the tribunal to have adjudicated upon the present case without ensuring full and accurate representation of his arguments and, accordingly, the tribunal erred on a point of law by not so ensuring.  However, at the hearing Miss McVeigh decided not to proceed with this submission.  However, as it is still an issue in the case, I will deal with it in short form.

 

7. Mr Kirk has drawn my attention to the leading relevant authority in the Commissioners’ jurisdiction where, in CJSA/5101/2001 – a Great Britain case – Mr Commissioner Williams stated at paragraph 9 as follows:

 

“The claimant has no right to legal representation under British law in a social security case, and the European Convention on Human Rights does not give him that right.”

 

This decision appears to have settled the law in relation to this point and I adopt it as a relevant statement setting out, not only the law of the United Kingdom, but also the law of Northern Ireland.

 

8. Mr Kirk has also pointed out that the Appeals Service in its literature had clearly informed the claimant of his right to seek representation before the tribunal if he wished to obtain it.

 

9. I therefore conclude, in light of the law as it now stands, that the tribunal has not erred by failing to hear the claimant’s appeal in circumstances where the claimant was not represented by a solicitor or barrister.

 

10. The second issue raised by the appeal was that the tribunal had erred by failing to explain the view it had taken about a letter from the claimant’s general practitioner.  This letter dated 12 June 2009 stated, inter alia, that the claimant “reports pain in his right wrist which prevents him preparing meals.”  The letter was clearly before the tribunal as it is referred to at the beginning of the record of proceedings (in relation to the mobility component) and the doctor’s name is mentioned in the statement of reasons.  However, the references do not relate to the contents of the letter dated 12 June 2009.

 

11. Miss McVeigh submitted that the tribunal, when dealing with the claimant’s ability to cook a main meal, erred by concluding that the claimant’s evidence to the tribunal was “not consistent with the medical evidence provided”.  She submitted that, if proper consideration had been given to Dr S…….’s letter, the tribunal could not have properly come to this conclusion.

 

12. Mr Kirk supported Miss McVeigh’s submission and accepted that there was substance in this point.  He submitted that it was relevant and pertinent that Dr S……….’s letter referred to the fact that the claimant had indicated to him that he (the claimant) could not prepare a cooked main meal due to pains in his right hand.  In the tribunal’s reasons for its decision the tribunal explained that it could find no evidence to support the claimant’s contentions regarding osteoarthritis and tendonitis.  The tribunal did not refer to the doctor’s letter.  Mr Kirk made the point that it may well be that the tribunal had considered and rejected this evidence but there was an onus upon it to make explicit reference to that letter and to explain why it was rejecting it.

 

13. In relation to this issue I come to the following conclusion.  I note that it could be taken from the doctor’s letter that he was not making a clinical finding in relation to the claimant’s ability but was merely reporting what the claimant told him.  However, I agree with both advocates that the reference to wrist pain preventing the claimant preparing meals raised an issue that ought to have been dealt with.  I accept that the failure so to do amounts to an error in law.

 

14. The third relevant issue is whether or not the tribunal erred by failing to explain why it rejected the claimant’s oral evidence concerning the gripping of the steering wheel of his car whilst driving.  It is recorded in the record of proceedings that the claimant at the tribunal hearing stated as follows:

 

“I pick up kids from school in the car.  I have tendonitis in my right hand.  Don’t have a “grip” on the steering wheel of the car.  No back problem.  Only problem is my knees.”

 

In the reasons for its decision the tribunal stated:

 

“The Tribunal specifically find that the evidence provided by the claimant today is not consistent with the medical evidence provided.  The Tribunal also note that the claimant has no known difficulties with regard to gripping the steering wheel or operating the manual controls within his motor car.”

 

15. Miss McVeigh submitted that there was evidence from the claimant that he has difficulties gripping the steering wheel and that the tribunal had erred in law in concluding as it did, without taking this evidence into account.

 

16. Mr Kirk agreed with this submission and made the further point there was an onus on the tribunal to explain why it was rejecting the claimant’s evidence in relation to this issue, especially because gripping difficulties could have an impact upon his ability to prepare a main meal.

 

17. In light of these submissions I conclude that the tribunal has erred in law by failing to explain why it rejected the claimant’s contentions regarding his difficulties with gripping a steering wheel.

 

18. Miss McVeigh made the further point that the tribunal erred in law by not concluding, in light of the evidence, that the entitlement conditions for the award of DLA had been satisfied.

 

19. However, in my view, the substance of this submission has been dealt with adequately by the decision in relation to the second and third issues and, accordingly, I do not consider it to be constructive or helpful to adjudicate upon this point.

 

20. I therefore conclude that the tribunal has erred in law in relation to the second and third issues set out at paragraphs 13 and 17.  Accordingly, I allow the claimant’s appeal, set aside the tribunal’s decision and refer the case back to be re-decided by a differently constituted tribunal.  However, the fact that this appeal to a Commissioner has been successful should not be taken as an indication of the ultimate success of the claimant’s appeal to a tribunal.

 

 

(signed):  JAH Martin QC

 

Chief Commissioner

 

 

 

12 April 2011