SQ-v-Department for Communities (DLA) [2018] NICom 15

Decision No:  C76/17-18(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 27 June 2017

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 Newry.

2.	An oral hearing of the application has been requested.  However, I consider that the proceedings can properly be determined without an oral hearing. 

3.	For the reasons I give below, I grant leave to appeal.  However, I disallow the appeal. 

	REASONS

	Background

4.	The appellant claimed disability living allowance (DLA) from the Department for Social Development (the Department) from 22 December 2014 on the basis of needs arising from knee problems.  The Department obtained a report from the appellant’s general practitioner (GP) dated 22 January 2015.  On 30 January 2015 the Department received advice from its Medical Officer.  On 30 January 2015 the Department decided on the basis of all the evidence that the appellant did not satisfy the conditions of entitlement to DLA from and including 22 December 2014. The appellant appealed.  However, he did not request an oral hearing of his appeal. 

5.	The appeal was considered by a tribunal consisting of a legally qualified member (LQM), a medically qualified member and a disability qualified member.  The tribunal disallowed the appeal on 4 June 2015.  The appellant then requested that the tribunal’s decision should be set aside, as he had intended to be present at the hearing of his appeal.  A decision setting aside the appeal was issued on 23 September 2015. A fresh hearing was convened on 9 December 2016, which the appellant attended.  The new tribunal disallowed the appeal. The appellant requested a statement of reasons for the tribunal’s decision and this was issued on 27 February 2017.  The appellant applied to the LQM for leave to appeal from the decision of the appeal tribunal but leave to appeal was refused by a determination issued on 31 May 2017.  On 27 June 2017 the appellant applied to a Social Security Commissioner for leave to appeal. 

	(The Department was renamed the Department for Communities from 8 May 2016).

	Grounds

6.	The appellant submits that the tribunal has erred in law on the basis that:

		(i) the tribunal made no reference to reading the written submission made by the appellant;

		(ii) the tribunal gave no reasons for rejecting the submissions advanced in the document. 

7.	The Department was invited to make observations on the appellant’s grounds.  Mr Hinton of Decision Making Services (DMS) responded on behalf of the Department.  Mr Hinton submitted that the tribunal had not erred in law as alleged and indicated that the Department did not support the application. 

8.	As I had decided that the proceedings could properly be determined without an oral hearing, I gave the appellant an opportunity to make further written submissions. However, he did not avail of that opportunity. 

	The tribunal’s decision

9.	The LQM has prepared a statement of reasons for the tribunal’s decision. From this I can see that the tribunal had documentary material before it consisting of the Department’s submission, containing the claim form and a factual report from the appellant’s GP, together with an opinion of the Department’s medical office dated 30 January 2015.  It further had sight of a letter from Mr B…. - a specialist physiotherapist, a written submission on behalf of the appellant, a letter from Dr J……, an extract from the appellant’s medical records, a letter from Dr C……. and two letters from Mr B…., highly specialist musculoskeletal physiotherapist, of Guy’s and St.Thomas’ NHS Foundation Trust.  The tribunal further indicated its awareness that the appellant had applied to have a different medical member appointed to the panel, but that this had been declined by the President of Appeals.  The appellant attended the hearing and gave oral evidence. Mr Kavanagh appeared as presenting officer for the Department. 

10.	The tribunal accepted that the appellant had a history of low back pain, and found that it had deteriorated after the date of decision. It further accepted that he experienced knee pain.  And had undergone a surgical procedure on 30 October 2014, and that he submitted his claim form on 22 December 2014 while recovering post operatively.  Having regard to evidence of post-operation reviews, the tribunal found that while the appellant’s mobility was restricted, he could not be considered virtually unable to walk.  It further found that he was unlikely to satisfy the prospective test, agreeing with the opinion of the Department’s medical officer.  It found that the appellant overstated his disability and concluded that his condition was not such that it warranted guidance or supervision when out of doors in unfamiliar places.  In relation to care, the tribunal similarly found that the prospective test was unlikely to be satisfied on the basis of knee pain, and that back and hip pain would not have given rise to significant care needs at the date of decision.  It disallowed the appeal. 

	Relevant legislation

11.	The legislative basis of the care component is found at section 72 of the Social Security Contributions and Benefits Act (NI) 1992. This provides:

72.—(1) Subject to the provisions of this Act, a person shall be entitled to the care
component of a disability living allowance for any period throughout which—

(a) he is so severely disabled physically or mentally that—

(i) he requires in connection with his bodily functions attention from another person for a significant portion of the day (whether during a single period or a number of periods); or

(ii) he cannot prepare a cooked main meal for himself if he has the ingredients;

(b) he is so severely disabled physically or mentally that, by day, he requires from another person—

(i) frequent attention throughout the day in connection with his bodily functions; or

(ii) continual supervision throughout the day in order to avoid substantial danger to himself or others; or

		     (c) he is so severely disabled physically or mentally that, at night,—

(i) he requires from another person prolonged or repeated attention in connection with his bodily functions; or

(ii) in order to avoid substantial danger to himself or others he requires another person to be awake for a prolonged period or at frequent intervals for the purpose of watching over him.

(2) Subject to the following provisions of this section, a person shall not be entitled to the care component of a disability living allowance unless— 

		(a) throughout— 

				(i) period of 3 months immediately preceding the date on which the award of that component would begin; or 

				(ii) the such other period of 3 months as may be prescribed, he has satisfied or is likely to satisfy one or other of the conditions mentioned in subsection (1)(a) to (c) above; and 

		(b) he is likely to continue to satisfy one or other of those conditions throughout— 

				(i) the period of 6 months beginning with that date; or 

				(ii) (if his death is expected within the period of 6 months beginning with that date) the period so beginning and ending with his death.

12.	The legislative basis of the mobility component is section 73 of the same Act. This provides:

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;

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

		(b) he does not fall within that subsection but does fall 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.
…

	Assessment

13.	The tribunal‘s record of proceedings includes a heading “Documents considered”, and under that heading there is a reference to “Written submission on behalf of the Appellant (3 pages)(amended and updated)”. The appellant submits that, whereas the tribunal has referred to this document, it makes “no reference whatsoever in the reasons for the decision as to whether or not they read the document”.  He further submits that, if read, “it is unclear as to whether the tribunal accepted or rejected the arguments put forward in the submission”.  The question before me is therefore whether the tribunal has erred in law either by not indicating that the document was read, or whether its reasons are inadequate by reason of not addressing the submissions advanced in the document, whether accepting or rejecting them. 

14.	I think that the first point can be dealt with briefly.  The procedure at appeal tribunals is governed by the Social Security and Child Support (Decisions and Appeals) Regulations (NI) 1999 (the Decisions and Appeals Regulations).  At regulation 55, there is a statutory requirement to make a record of tribunal proceedings which is sufficient to indicate the evidence taken.  The standard form of the record of proceedings includes, as indicated above, a “Documents considered” heading.  When recording the record of proceedings, the LQM is expected to list the documentary material which the tribunal took into account in its deliberations.  By listing a document as “considered” – as opposed to, for example, “submitted” – the LQM is indicating that the tribunal has read the document.  The tribunal is not otherwise obliged to indicate expressly that it has read a document that has been submitted to it. I do not consider that the appellant’s first point raises an arguable case of error of law.

15.	The appellant’s second point goes to the obligation on a tribunal to state the reasons for its decision.  This arises from regulation 53(4) of the Decisions and Appeals Regulations.  Where there is a statutory duty to give reasons, the adequacy of the reasons is in itself a condition of the lawfulness of the decision.  Therefore, giving a statement of reasons under regulation 53 which fails to explain the tribunal decision is in itself an error of law. 

16.	The appellant submits that the tribunal erred by not making clear its response to the matters advanced in the document in issue.  That document advanced a number of propositions of fact, submissions and an application for adjournment.  As these require substantive consideration, I will grant leave to appeal.   

17.	The factual propositions advanced are that:

		(i) the appellant had a meniscectomy operation on 30 October 2014;

		(ii) the appellant wanted a private operation to avoid delay;

		(iii) the appellant reported to his GP on 15 July 2015 that he had been suffering right hip pain for six months;

		(iv) the GP on 15 July 2015 noted an “antalgic gait”;

		(v) the GP on 15 July 2015 referred the appellant for physiotherapy, suggesting that right hip pain might be secondary to right knee disability;

		(vi) in January 2015 the appellant was mobilising on two crutches;

		(vii) an MRI scan showed wear and tear to the appellant’s back.

18.	The submissions advanced are that:

		(i) antalgic gait is a good indicator of pain on weight-bearing;

		(ii) the appellant was in pain from his first step;

		(iii) the test of “severe discomfort” is a lesser test than that of pain;

		(iv) the operation straightened the appellant’s leg but did nothing to alleviate pain;

		(v) the prospective test could only be shown to be satisfied by sight of the follow-up appointments with the consultant who carried out the operation;

		(vi) the panel on a previous occasion had been asked to note that a report stated that pain was “significantly different” rather than “significantly improved”;

		(vii) the purpose of the appellant’s operation was simply to straighten his leg prior to a knee replacement.

19.	The application advanced was for an adjournment for:

		(i) an independent report, including a view on the issue of post-operative recovery time and the likely duration of the appellant’s back problems.

20.	The first matter dealt with by the tribunal at hearing was the adjournment application.  This was refused on the basis that an orthopaedic opinion would be of limited value in the light of the amount of time that had passed since the date of claim. 

21.	The tribunal addressed the appellant’s medical history.  It noted that he had a history of back pain, and that he had consulted his GP in October 2015 about back pain.  It referred to the letter of Dr C……. dated 10 May 2016 which referred to a nine-month history of low back pain and right-sided knee pain, with a flare-up in February 2016.  The tribunal decided that the back condition had deteriorated after the date of decision (30 January 2015) and considered that this should be a matter for a new claim.  This was legally correct and in accordance with Article 13(8)(b) of the Social Security (NI) Order 1998, which precludes tribunals from considering circumstances not obtaining at the time the decision under appeal was made. 

22.	The tribunal found that the main issue restricting the appellant’s mobility was knee pain.  It noted the x-rays findings from 29 April 2014 and that the appellant had undergone surgery on 30 October 2014, claiming DLA on 22 December 2014 when he would have been recovering post-operatively.  It considered that the prospective test was relevant, setting out the legislative test, and noted the Department’s position that the appellant was unlikely to meet that test as his restrictions at date of claim would be expected to have reduced by that time (meaning the end of the six-month period beginning with the date of claim). 

23.	It is clear that the tribunal was aware of the fact that the appellant had undergone surgery.  Whether that was a private or a public operation is immaterial to the nature of his disability at the date of claim.  The tribunal was aware of the GP consultation of 15 July 2015.  The tribunal noted that the appellant had a mild antalgic gait at the report from the orthopaedic clinic visit of 20 May 2015.  It was aware of his use of crutches in January 2015.  It was aware of his referral to physiotherapy. The tribunal was aware of the MRI report of 2016 but did not accept its relevance.  The tribunal was therefore fully aware of all factual matters referred to in the submission. 

24.	The appellant’s submission advanced a number of propositions.  These included matters such as the test for high rate mobility component and the significance of an antalgic gait.  Neither of these is controversial.  The submission addressed factual issues specific to the appellant, saying that he was in pain from his first step and that his operation did nothing to alleviate his pain.  These were matters of evidence and the tribunal adduced direct evidence from the appellant relating to functional limitations on mobility.  The tribunal was entitled to take into account the oral evidence given directly to it in preference to written submissions of evidence made in advance of the hearing.  The tribunal noted that the appellant had said at the clinic of 20 May 2015 that his pain was different from his pre-operative state.   

25.	The sole matter from the appellant’s written submission which does not appear to be expressly addressed is the assertion that the purpose of his operation was to straighten his leg prior to knee replacement surgery. However, the tribunal was concerned more with the effects of the surgery rather than the ultimate purpose of the surgery.  The evidence from the orthopaedic clinic of 20 May 2015 was that the appellant was mobilising independently without the use of mobility aids.  He was noted to have a mild antalgic gait but to be significantly better than pre-morbid.  The tribunal had sufficient evidence to determine that the prospective test was not satisfied. 

26.	I am not satisfied that the tribunal was obliged to deal with every submission advanced, whatever its relevance to the issues before it. While I have accepted that an arguable error of law has been identified, I do not consider that the tribunal has in fact erred in law. I disallow the appeal. 

	(signed) O Stockman

	Commissioner

	28 June 2018