26 May 2020

International Cases

PO'N -v- Department for Social Development




Applicant can appeal to Commissioner on establishing an arguable case that, the appeal tribunal has erred in law

Present is a claimant's application for leave to appeal from the decision of an appeal tribunal sitting at Craigavon. In instant case, Applicant claimed disability living allowance (DLA) from Department for Social Development in 2012 and was then awarded low rate mobility component and middle rate care component. It appears that, he was awarded low rate mobility component and middle rate care component on a renewal claim from 30 September 2013 to 29 September 2015. It then appears that, having failed to return a renewal claim which had been issued to him in the time prescribed, a fresh claim was made by applicant from 30thSeptember, 2015 on basis of needs arising from depression and bipolar disorder. Department obtained a report from the applicant's general practitioner (GP) on 4 November 2015. On 9 November 2015, Department decided on basis of all evidence that, Applicant did not satisfy the conditions of entitlement to DLA from and including 30 September 2015. The applicant appealed.

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. Applicant applied to the LQM for leave to appeal from the decision of the appeal tribunal but leave to appeal was refused. Applicant applied to a Social Security Commissioner for leave to appeal.

An appeal lies to a Commissioner from any decision of an appeal tribunal on ground that, decision of the Tribunal was erroneous in point of law. However, party who wishes to bring an appeal must first obtain leave to appeal. Leave to appeal is a filter mechanism. It ensures that, only applicants who establish an arguable case that the appeal tribunal has erred in law can appeal to the Commissioner. An error of law might be that, appeal tribunal has misinterpreted the law and wrongly applied the law to the facts of the individual case, or that appeal tribunal has acted in a way which is procedurally unfair, or that the appeal tribunal has made a decision on all the evidence which no reasonable appeal tribunal could reach.

The applicant, as indicated, relied on ground that the tribunal placed weight on post-decision evidence in the medical records. By Article 13(8)(b) of Social Security (NI) Order 1998, a Tribunal is precluded from having regard to circumstances not obtaining at the date of decision under appeal. It seems that, whereas the content of Health Care Plan was one piece of evidence in the totality of evidence considered by the Tribunal, it had a material impact on the Tribunal's conclusions in present case. It is of course possible for a Tribunal to rely on post-decision evidence and to state its view that, evidence equally applied to circumstances obtaining before the decision date. However, the tribunal did not expressly state that, the Health Care Plan was accepted as evidence of circumstances obtaining in November, 2015.

The applicant had a serious mental health crisis in 2012 with two detained admissions. Evidence suggested that, his condition had improved with the passage of time. The Tribunal clearly felt that, the applicant's needs had reduced accordingly. However, in view of conflict between the GP's opinion regarding the applicant's lack of motivation to cook in November 2015 and the April 2016 evidence, it cannot be said that, the Tribunal's decision was not influenced by the post-decision evidence. Applicant makes out an arguable case of error of law and leave to appeal is granted. Decision of the appeal Tribunal is set aside. Commissioner directed that, appeal shall be determined by a newly constituted tribunal.

Tags : Leave to appeal Arguable case Grant

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