CD-v-Department for Social Development (DLA) [2016] NICom 29

Decision No:  C20/15-16(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 7 July 2015

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 7 July 2015 is in error of law.  The error of law identified will be explained in more detail below.  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.

2.	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.  An appeal tribunal which has a Medically Qualified Panel Member is best placed to assess medical evidence and address medical issues arising in an appeal.  Further, there may be further findings of fact which require to be made and 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.

3.	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.

4.	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 disability living allowance (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

5.	On 12 February 2015 a decision-maker of the Department decided that the appellant was not entitled to either component of DLA from and including 12 December 2014.  On 18 February 2015 the appellant asked for the decision dated 12 February 2015 to be reconsidered.  Following the receipt of further information from the appellant, the decision dated 12 February 2015 was reconsidered on 16 March 2015 but was not changed.  An appeal against the decision dated 12 February 2015 was received in the Department on 8 April 2015.

6.	The appeal tribunal hearing took place on 7 July 2015.  The appellant was present and was accompanied by his partner.  There was no departmental Presenting Officer present.  The appeal tribunal disallowed the appeal and confirmed the decision dated 12 February 2015.

7.	On 12 October 2015 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS).  On 16 October 2015 the application for leave to appeal was refused by the Legally Qualified Panel Member (LQPM).

	Proceedings before the Social Security Commissioner

8.	On 23 November 2015 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 1 December 2015 observations on the application for leave to appeal were requested from Decision Making Services (DMS).  In written observations dated 30 December 2014, Mr Donnelly, for DMS, supported the application for leave to appeal on one of the grounds submitted by the appellant.

9.	Written observations were shared with the appellant on 4 January 2016.  Written observations in reply were received from the appellant on 2 February 2016.  On 8 February 2016 the Legal Officer wrote to the clerk to TAS seeking clarification concerning the appellant’s assertion that he had forwarded a report from his General Practitioner (GP), dated 6 March 2016, to Disability and Carers Service to ‘support’ his appeal.  The clerk was requested to confirm whether the report had been received by Disability and Carers Service and, if so, whether it had been forwarded to TAS.  In correspondence dated 11 February 2016, the clerk confirmed that the relevant report had been included in the submission prepared for the oral hearing of the appeal as Tab No 6.  Further correspondence concerning the relevant report was received from Mr Donnelly on 23 February 2016.

10.	On 25 March 2016 I granted leave to appeal.  In granting leave to appeal I gave, as a reason, that an arguable issue arose as to whether the appeal tribunal omitted to assess evidence relevant to the issues arising in the appeal and which was before it.  On the same date I determined that having considered the circumstances of the case and any reasons put forward in the request for a hearing, I was satisfied that the application can properly be determined without a hearing.

	Errors of law

11.	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.  What is an error of law?

12.	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.” 

	Why was the decision of the appeal tribunal in error of law?

13.	In his helpful and constructive written observations on the application for leave to appeal, Mr Donnelly made the following submission:

‘In his application for leave to appeal, (the appellant) has at numerous points referred to the GP report of 6 March 2015, completed by Dr McN... (The appellant) contends that Dr McN.. is his regular GP and therefore in the best position to offer an assessment of his medical needs.  (The appellant) states that the original GP Factual Report of 5 February 2015, on which the tribunal places considerable weight, was completed a GP unfamiliar with his medical history.  (The appellant) further notes that the tribunal has made no reference to this report in the reasons for decision.  Points 1, 2, 3, 4, and 10 of (the appellant’s) application relate to this.

…

Throughout the reasons for decision, there is no mention of the GP report of 6 March 2015, neither is there any mention of this report in Part 1 of the Record of Proceedings thunder the heading ‘Documents Considered’.  While the tribunal may have had a wide range of evidence before it, this specific report supported many of (the appellant’s) contentions and was evidently relied on by him in support of his appeal.  The tribunal therefore had a duty to, at the very least, refer to this report, and offer some reasoning for preference of other evidence.  Accordingly I submit that … the tribunal has failed to take into account and/or resolve conflicts of fact or opinion on material matters.’

14.	I agree with Mr Donnelly’s submission and, for the reasons which he has set out, agree that the decision of the appeal tribunal is in error of law.

15.	In C8/08-09(IB), I stated, at paragraphs 60-61:

‘60.	The reason for my rejection of the DMS submission is that there is a clear duty on appeal tribunals to undertake a rigorous assessment of all of the evidence before it and to give an explicit explanation as to why it has preferred, accepted or rejected evidence which is before it and which is relevant to the issues arising in the appeal.

61.	In R2/04(DLA) a Tribunal of Commissioners, stated, at paragraph 22(5):

	“ … there will be cases where the medical evidence before a particular tribunal will be unsatisfactory or deficient in an important respect.  It will often be open to the tribunal hearing such a case to reject the medical evidence for that reason.  Indeed, it will sometimes be its duty to do so.  However, and in either case, the tribunal cannot simply ignore medical evidence which is not obviously irrelevant.  It must acknowledge its existence and explain its reasons for rejecting it, even if, as will often be appropriate, such reasons are fairly short.  We repeat, the decision whether a person suffers from a particular medical condition is a matter for the tribunal.  That body must have regard to the whole of the evidence, including the medical evidence.  Where it rejects medical evidence it must, unless the reasons are otherwise apparent, explain why it does so.  Anything less is likely to result in an appeal being brought on the grounds that the tribunal has not given adequate reasons or that its decision is against the weight of the evidence.”’

16.	In its statement of reasons the appeal tribunal has made no reference to the medical evidence provided by the appellant, in the form of the medical report from his GP, dated 6 March 2015 and which was part of a bundle of documents attached to the appeal submissions as Tab No 6.  In this report, Dr McN.. has stated that he is the GP who is most familiar with the appellant’s medical history.  The GP then sets out details of the appellant’s medical conditions and their effects.  In describing those affects the GP makes reference to factors which had potential relevance to entitlement to DLA.

17.	In correspondence dated 25 February 2015, which was also part of the bundle of documents at Tab No 6 of the appeal submission, the appellant had made reference to a Factual Report which had been commissioned by the Department and had formed part of the evidence during the decision-making process which led to the refusal of his claim to DLA.  The relevant report is attached to the appeal submission as Tab No 3.  It is dated 5 February 2015 and was completed by another doctor in the appellant’s GP practice.  In his correspondence dated 6 March 2015 the appellant submitted that the doctor who had completed the Factual Report dated 5 February 2015 was unfamiliar with his medical conditions and their effects, and that the Factual Report had important omissions.

18.	It is clear, therefore, that the appellant was placing significant reliance on the report from Dr McN.. dated 6 March 2015 in both challenging the earlier evidence contained in the Factual Report dated 5 February 2015 and in providing discrete evidence which supported his claim to DLA from a medical practitioner who was very familiar with his medical conditions and their effects.

19.	Where an appellant or an appellant’s representative adduces evidence which is submitted to be specific to the issues arising in the appeal, then the appeal tribunal is under a duty to consider that evidence, assess that evidence in aggregation with all of the other evidence which is before it and set out what its assessment of that evidence is.  The statement of reasons for the appeal tribunal’s decision is detailed and has been prepared with care and attention.  Nonetheless, it gives no indication as to how the relevant medical evidence was assessed and whether or not it was accepted or rejected.

20.	At the start of the statement of reasons, the appeal tribunal has noted:

‘The tribunal considered all the oral and written evidence and submissions in order to decide entitlement to DLA …’

21.	I have, therefore, considered the possibility that the appeal tribunal did undertake an assessment of the medical report from Dr McN.. and rejected that evidence as part of the overall assessment of all of the evidence which was before it.  In CT v Secretary of State for Defence ([2009] UKUT 167, CAF/0589/2009), Upper Tribunal Judge Jacobs said the following, at paragraph 31 of his decision:

‘If the tribunal has rejected evidence, it must be clear why.  It may be self-evident that particular evidence was irrelevant or unreliable, but it is always good practice to deal with it expressly.  Failure to do so all too often leaves the claimant dissatisfied and generates unnecessary applications for permission.’

22.	Those comments reflect my own remarks at paragraph 60 of C8/08-09(IB).

23.	Having found, for the reasons set out above, that the decision of the appeal tribunal is in error of law, I do not have to consider the appellant’s other grounds for appealing.  I would indicate, however, that I would not have found the decision of the appeal tribunal to be in error of law on the other grounds cited by the appellant and agree with Mr Donnelly’s submissions in connection with those grounds.

	Disposal

24.	The decision of the appeal tribunal dated 7 July 2015 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.

25.	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 12 February 2015, in which a decision maker of the Department decided that the appellant was not entitled to either component of DLA from and including 12 December 2014;

	(ii)	the Department is directed to provide details of any subsequent claims to DLA and the outcome of any such claims to the appeal tribunal to which the appeal is being referred.  The appeal tribunal is directed to take any evidence of subsequent claims to DLA into account in line with the principles set out in C20/04-05(DLA);

	(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):  K Mullan

Chief Commissioner

6 May 2016