NTF-v-Department for Social Development (DLA) [2010] NICom 128

Decision No:  C81/10-11(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 16 September 2009

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.    Having considered the circumstances of the case, I am satisfied that the application can properly be determined without a hearing.

 

2.    I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.

 

3.    The decision of the appeal tribunal dated 16 September 2009 is not in error of law.  Accordingly, the appeal to the Social Security Commissioner does not succeed.  The decision of the appeal tribunal to the effect that the appellant is not entitled to disability living allowance (DLA) from and including 17 July 2008 is confirmed.

 

       Background

 

4.    On 26 September 2008 a decision-maker of the Department decided that the appellant was not entitled to DLA from and including 17 July 2008.  On 19 January 2008, following the receipt of further correspondence from the applicant, the decision dated 26 September 2008 was reconsidered but was not changed.

 

5.    The appeal was listed for oral hearing on 6 May 2009 but was adjourned to enable documentation provided by the appellant to be photocopied and distributed to the appeal tribunal.  The substantive appeal tribunal hearing took place on 16 September 2009.  The appellant was present with his partner.  The appeal tribunal disallowed the appeal and confirmed the decision dated 26 September 2008.

 

6.    On 23 November 2009 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.  On 1 December 2009 the application for leave to appeal was refused by the legally qualified panel member (LQPM).

 

7.    On 22 December 2009 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.  On 17 February 2010 observations were sought from Decision Making Services (DMS) and these were received on 11 March 2010.  DMS opposed the application on the grounds submitted by the appellant.  Observations were shared with the appellant on 26 March 2010.  On 21 April 2010 further observations in reply were received from the appellant which were shared with DMS on 23 April 2010.

 

       Errors of law

 

8.    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.

 

9.    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.”

 

       Was the decision of the appeal tribunal in the instant case in error of law?

 

       The submissions of the parties

 

10.   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 on the basis that:

 

(i)              the appeal tribunal did not take into account the evidence in connection with his hearing loss; and

 

(ii)             the appeal tribunal did not properly apply the decision in C04/06-07 (DLA).

 

11.   As was noted above, in written observations on the application for leave to appeal, DMS opposed the application on the grounds submitted by the appellant.  In addition, DMS submitted, in response to a specific question from the legal officer, that the appeal tribunal’s suggestion of the use of a portable timer as a reasonable aid to the preparation of a cooked main meal, was one which it was entitled to make.

 

12.   In further written observations in reply, the appellant submitted again that the appeal tribunal had misinterpreted the medical evidence with respect to his hearing loss.  Further, the appellant submitted that he had attempted to use a timer in connection with the preparation of a cooked main meal, but that it had proved to be ineffectual, as he had fallen asleep, rolled over to his ‘good’ ear with the result that his oven had caught fire.  Finally, the appellant made additional submissions in connection with his problems with alcohol misuse and the medical evidence in connection with this problem.

 

       Analysis – C4/06-07 (DLA)

 

13.   The issue before the appeal tribunal was whether the appellant had an entitlement to DLA.  In his renewal claim form to DLA the appellant, at page 5 of the relevant form, listed a number of illnesses and disabilities.  At the head of this list was ‘alcoholism’.  It is clear, from the remainder of the claim form that one of the appellant’s submissions was that he had an entitlement to DLA on the basis of care, supervision or attention requirements, and/or a restriction in his mobility, based on his problems with alcoholism.

 

14.   In R(DLA)6/06, a Tribunal of Commissioners in Great Britain undertook an extensive analysis of entitlement to DLA based on alcoholism.  The analysis undertaken by the Tribunal of Commissioners is extensive and the main reasoning is set out at paragraphs 20 to 40 of the decision.  The reasoning in R(DLA)6/06 was approved in this jurisdiction by Commissioner Brown in C4/06-07(DLA), at paragraph 9.  Reference was made by the appellant, in the application for leave to appeal, to the decision in C4/06-07 (DLA).

 

15.   The decision under appeal to the appeal tribunal was a decision of the Department dated 26 September 2008.  Article 13(8)(b) of the Social Security (Northern Ireland) Order 1998, as amended provides that it must not take into account any circumstances not obtaining at the time when the decision appealed against was made.  The date of the appeal tribunal hearing was 16 September 2009.

 

16.   The record of proceedings for the appeal tribunal hearing, in respect of the mobility component of DLA, records that the appellant gave evidence that he had been abstinent from alcohol for a period of 16 months.  Further, in the statement of reasons for the appeal tribunal’s decision with respect to the care component of DLA, it is noted that:

 

‘(The claimant) is a recovering alcoholic with a history of suicide attempts.  However on a positive note and to his credit he has been sober now for some 16 months (General Practitioner records confirm this).’

 

17.   Amongst the medical evidence which was before the appeal tribunal was a factual report, completed by the appellant’s general practitioner (GP) on 9 September 2008.  In that factual report, there is a statement to the effect that the appellant had been sober since admission to the Downshire Hospital in May 2008.  This date would tie in with the appellant’s own evidence of abstinence from alcohol some 16 months prior to the date of the appeal tribunal hearing on 16 September 2009.  Further, the appeal tribunal had access to two medical reports from a consultant psychiatrist, dated 5 March 2009, and the community addictions team dated 5 May 2009, which both confirmed continuing abstinence from alcohol.

 

18.   In the statement of reasons for the appeal tribunal hearing, the appeal tribunal noted that the appellant would avoid going out in his home town in case he met up with former drinking partners.  Further, the appeal tribunal found that there were no transient effects of alcohol misuse (indeed there was no evidence of alcohol misuse at the date of the decision under appeal), nor any evidence of a separate but linked medical condition to alcohol misuse which would lead to a requirement for attention in connection with bodily functions, or, with one important exception, a requirement for supervision to prevent danger to himself or to others.  The important exception was the appeal tribunal’s conclusion that the appellant had a reasonable requirement for attention in connection with the administration of his medication, given his previous history of suicide attempts.  That requirement was, in the view of the appeal tribunal, insufficient to satisfy the conditions of entitlement to DLA.

 

19.   The appeal tribunal’s conclusions are in keeping with the other evidence which was before it.  For example, in the factual report, prepared by the appellant’s GP on 9 September 2008, the GP had noted that the appellant had no documented complications, no self-care needs, no problems with insight or awareness of danger, and no problems with getting around when sober.

 

20.   Accordingly, it is difficult to find an error of law in the appeal tribunal’s conclusions in this regard.  Those conclusions were based on a careful assessment of the evidence, clear findings in fact, and an accurate application of the relevant legal principles, including those in R(DLA)6/06 and C4/06-07 (DLA).

 

       Analysis – the medical evidence with respect to the appellant’s problems with hearing

 

21.   The appeal tribunal had before it a plethora of medical evidence, contained both in the appellant’s GP records, and in the detailed documentation provided to the appeal tribunal by the appellant at the adjourned oral hearing on 6 May 2009.  Much of that medical evidence was taken up with the medical assessment and treatment of the appellant’s problems with hearing.  From this evidence, the appeal tribunal concluded that the appellant did have a problem with hearing loss in one ear but that the hearing loss was not such as to cause the appellant to have problems with his self-care, or lead to a requirement for guidance or supervision while walking out of doors of familiar routes for most of the time.  The appeal tribunal noted that the appellant followed the proceedings of the appeal tribunal without the requirement for intervention as a result of his hearing loss.

 

22.   Once again those conclusions were based on a careful assessment of the evidence, and the making of clear findings in fact.  Accordingly, I cannot find any error of law on the basis of this submitted ground.

 

       Analysis – use of a timer in connection with the preparation of a cooked main meal

 

23.   In the statement of reasons for the appeal tribunal’s decision with respect to the care component of DLA, the appeal tribunal noted that:

 

‘… The appellant today confirms that he could carry out cooking tasks such as peeling and chopping vegetables.  He is more concerned that he leaves things on the cooker and burns them.  We believe that use of a portable timer carried with him from room to room when food is in the oven or on the stove and set to go off at regular intervals when cooking would alleviate this problem. …’

 

24.   In C9/08-09(DLA), I undertook a detailed analysis of the interpretation given by the Social Security Commissioners in Great Britain and Northern Ireland to section 72(1)(a)(ii) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, and the equivalent provision in Great Britain.  At paragraph 40, I stated:

 

‘Kitchen aids and the cooking environment

 

40.     There is a plethora of case-law attempting to give guidance to adjudicating authorities on the extent to which the use of devices to assist with the tasks associated with the preparation of a cooked main meal, or to improve the environment, in which the task is carried out, can be taken into account.  I would summarise the guidance from these authorities as follows:

 

(i)       the test pre-supposes that the preparer of the meal has the ingredients.  Accordingly, inability to shop for the ingredients is to be excluded (CDLA770/00);

 

(ii)      an inability (can’t), or disinclination (won’t) to cook is to be ignored - the test is hypothetical or abstract (Moyna, R(DLA)2/05, R(DLA)2/95, CDLA/770/00, CDLA/5686/1999);

 

(iii)      the usual kitchen devices to assist with the preparation of food may be taken into account (R(DLA)2/95, CDLA/770/00);

 

(iv)      the usual kitchen devices to assist with the cooking of food may be taken into account (CDLA/1469/95, CDLA/5686/99, CDLA/770/00);

 

(v)      while usual kitchen devices may be taken into account, the test should not be limited by reference to specific adaptations to the traditional kitchen to compensate for a disability (R(DLA)2/95);

 

(vi)      the ability to bend is not an essential part of the main meal test, and it does not require the manipulation of heavy pots and pans (CDLA/1469/95, CDLA/5686/99, CDLA/770/00, C41/98(DLA), CDLA/2367/2004);

 

(vii)     microwave ovens, used in the preparation of a cooked main meal, may be taken into account (CDLA/770/00, CDLA/5250/02). …

 

(viii)    claimed risks associated with cooking will have to be assessed, but all risk cannot be eliminated (R(DLA) 1/97);

 

(ix)      the effects of heat and steam must be considered where the appellant/claimant suffers from breathing problems.  Factors include the nature of the disability, likely reaction to heat/steam, and degree of ventilation available (CDLA/4214/02, CDLA/20/94).”

 

25.   The appeal tribunal in the instant case was under a duty to consider any claimed risk associated with the preparation of a cooked main meal.  The appellant’s own evidence was that while he could attend to the basic activities, such as peeling and chopping, associated with the preparation of a cooked main meal, the fact that he fell asleep after placing items on the cooker or in the oven, meant that the preparation of a cooked main meal was a hazardous activity for him.  The appeal tribunal concluded that he could eliminate the claimed risks by utilising a portable timer, which he could take from room to room, and which would alert him to the end of the cooking time, whether on cooker top or in the oven.  The appeal tribunal was of the view that the use of a timer in this way was a reasonable adaptation which should be taken into account.

 

26.   I am in agreement with the appeal tribunal’s conclusions in this respect.  I am of the view that the use of a portable timer to eliminate the risks associated with the preparation of a cooked main meal, and as identified by the appellant, is a reasonable adjustment which the appeal tribunal was entitled to take into account.  A timer is not an unusual device.  It is often used in the preparation of a meal by those who have no disability which otherwise hinders that preparation.  In the further observations in reply to the observations provided by DMS, the appellant has submitted that he had experimented with the use of a timer when preparing a cooked main meal but that the trial had been a failure.  This was because he had fallen asleep, rolled over on to his ‘good’ ear and had failed to hear the timer.  I would note that the appellant’s further evidence of having utilised a timer is inconsistent with the evidence which he gave to the appeal tribunal, and in which he indicated that he had ‘… never tried a timer.’  Further I consider the described combination of circumstances – falling asleep and rolling over to the ‘good’ ear – to be sufficiently remote to be discounted.

 

27.   Accordingly, I find that the appeal tribunal’s conclusions with respect to the applicability of section 72(1)(a)(ii) of the Social Security Contributions and Benefits (Northern Ireland) Act were based on a careful assessment of the evidence, clear findings of fact, and an accurate application of the relevant legal principles.  Accordingly, I cannot find any error of law on the basis of this submitted ground.

 

       Analysis – breach of human rights and discrimination

 

28.   In the written observations in reply to the observations made by DMS, the appellant has added that his human rights have been breached and that he has been discriminated against.  There is no basis upon which the decision of the appeal tribunal can be set aside on the basis of this submitted ground.  It is clear that the proceedings of the appeal tribunal were conducted in accordance with the principles of natural justice, and its decision is reflective of an apposite consideration of, and adherence to such principles.

 

       Disposal

 

29.   The decision of the appeal tribunal dated 16 September 2009 is not in error of law.  Accordingly, the appeal to the Social Security Commissioner does not succeed.  The decision of the appeal tribunal to the effect that the appellant is not entitled to DLA from and including 17 July 2008 is confirmed.

 

 

(signed):  K Mullan

 

Commissioner

 

 

 

14 December 2010