DB v Secretary of State for Work and Pensions (DLA)

The arguments made in the application for permission to appeal by Mr Malik of the Coventry Law centre, who acts for the appellant, stand as the appellant's final position. There has been no comment on the matters set out in the Secretary of State's submission, or on the matters that I raised in my grant of permission.

The omission of the FTT to consider whether the appellant's GP records should be obtained was said to be an error of law, given the inquisitorial role of the tribunal, and a material error since such records could have provided contemporaneous evidence of the appellant's condition on 28 June 2004 when the appellant became 65, thus helping the tribunal to decide whether there had been a relevant change of circumstance since the awarding decision. It was argued that the appellant, who was then without representation, did not appreciate that medical records could advance his case.

The absence of an enquiry as to the appropriateness of a domiciliary hearing is said to be an error of law. The assumption the FTT made that the available contemporary documentary evidence was likely to be more accurate than the appellant’s oral evidence on the point was misplaced; the appellant has instructed his representatives that he would be able to explain what his mobility problems were in June 2004 and how they had changed since 1999.

It was wrong to rely on the inference that he was not housebound immediately prior 2007 to answer the question as to whether he was virtually unable to walk in 2004, since that test did not require a person to be housebound.

The Secretary of State does not support the appeal. In relation to whether the tribunal could consider the matter at all, other than indicating that the 13 month time limit for appealing the previous (2013) decision had concluded, no observations are made.

On the issue of whether or not the tribunal should have adjourned it is argued that the content of the statement generally shows that the provisions of rule 27 of the tribunal procedural rules were properly considered. The appellant indicated that he did not wish to attend, and the tribunal were entitled to respect that view if they felt that they were able to decide the matter fairly without an oral hearing. Given their view that oral evidence would not shed a light on the matter they had to consider, and they were entitled to take that view and continue as they did.

As to the domiciliary visit, the previous points are once again prayed in aid, and in addition, in response to my request for observations as to the appropriateness of domiciliary visits in general, observations that I made in the case of KO-v- Secretary of State For Work and Pensions (ESA) UKUT [2013] 544 (AAC) are set out. Adopting my reasoning there it is submitted that a domiciliary visit will only rarely be appropriate.

As to the impact of holding domiciliary hearings on the principle of public justice the Secretary of State brings the case of CSE/912/2013 to my attention, whilst conceding that it was concerned with somewhat different issues.

Finally the Secretary of State opines, in response to the issue I raised as to whether a tribunal is able to take public resources into account in its deliberations under rule 27, that it can.

The FTT proceeded on the basis that that because the appellant had an existing DLA award, in order for him to qualify for the higher rate mobility component he had to show that his walking ability met the test for an award of that component prior to his turning 65, which occurred in June 2004, some ten years prior to the date of hearing.

In fact it seems to me that the tribunal approach gave the appellant an opportunity that in law did not exist. However since to a large extent the case has proceeded on the basis that this was the proper approach I have considered all matters that I referred to in the grant of appeal; the appellant does not succeed in relation to any of the points made on his behalf.

I must initially explain the legal position regarding awards of the higher rate of the mobility component for those aged over 65.

I begin with Section 75 of the Social Security (Contributions and Benefits) Act 1992, (SSCBA) which sets out the position of entitlement for those aged over 65. The section is entitled "Persons who have attained pensionable age" and the relevant parts state:

Regulations may provide in relation to persons who are entitled to a component of the disability living allowance by virtue of subsection (1) above that any provisions of this act which relate to disability living allowance….

shall have effect subject to modifications, rejections or amendments;

shall not have effect.

The Social Security (Disability Living Allowance) Regulations 1991(which I refer to as the Regulations or the DLA Regulations) provide the detailed framework in relation to awards. Regulation 3 makes provision for those aged over 65. I pause to observe that unlike the SSCBA the regulations have not been amended to substitute ‘pensionable age’ for the age of 65, but that is immaterial in relation to the matters arising here. Regulation 3 states

This provides for the situation where an application for DLA is made prior to an applicant becoming 65 but the decision is made after that date, but that is not the position here.

Further provisions as to those aged over 65 are made under subparagraph (4) by way of Schedule 1.

Schedule 1 to the Regulations is entitled "Persons aged 65 and over” and deals in detail with the complexities with can arise due to what appears to be the ironing out of the discrepancies between DLA and the more onerous criteria for receipt of Attendance Allowance which is payable to those who claim after they are 65, and the preservation of the position of those who qualified for DLA due to disability which gave rise to significant needs in their younger years.

I set out the parts of Schedule 1 with which I need to deal.

This appellant had been in receipt of an award of the lower rate of the mobility component, as well as the care component at the middle rate, prior to his becoming 65. Following his 65th birthday he made two applications for supersession, but no change was made to the mobility award; the most recent decision not to change that aspect of the award implicitly accepted that the earlier decision was factually correct.

As the Secretary of State points out in his submission, that decision is now unable to be the subject of an appeal. The matter that I am dealing with arises out of a fresh application to supersede it.

The application relies on a pre-2006 change of circumstance; it alleges that claimant was been virtually unable to walk in or prior to 2004 when he attained 65. It is far too late for the appellant to apply for a revision of any earlier decision. The only application he can make is for supersession, and given the circumstances that he put forward the only available ground for supersession is that the decisions of 2006 and 2013 were made in ignorance of or under mistake of fact.

Paragraph 1 of the Schedule ameliorates the prohibition on entitlement in section 75 (1) SSCBA in respect of either component where an award was made before the person attained 65, and provides for either component to be increased or acquired after the age of 65 where there has been a relevant change of circumstances which occurred before the person attained the age of 65.

Although this appellant had an award prior to his attaining 65 and alleges that a relevant change occurred before he attained 65 paragraph 1 is not a complete answer, as the subsequent paragraphs cover the position where an award is made after that birthday, and an award is not limited to an initial award. An amended Schedule came into effect in October 1999, soon after the major reforms of the 1998 Social Security Act, which abandoned the concept of review of decisions, substituting the regime of revision and supersession. The drafting perhaps reflects the fact that these concepts were in their infancy. The decision of Upper Tribunal Judge Mesher in CDLA/301/2005 deals with some of the drafting difficulties. He points out at paragraph 25

That point is important here. For paragraph 1 to permit the appellant to argue that he met the criteria for a higher rate mobility award prior to attaining 65 he must rely upon the original award made prior to his attaining 65, but there are two decisions subsequent to his attaining 65; the decision on the appellant’s supersession request in 2006 and the further decision made on 8/7/2013 on his similar request in 2013. What he was in fact able to apply to change was the most recent decision of 2013. It amounted to a fresh award made after he was 65.

Accordingly paragraph 2(a) operated to apply the subsequent paragraphs of the Schedule, and make him subject to the rule set out in paragraph 6.

Set out above, this covers the appellant’s situation; he was entitled to the lower rate of the mobility component on and after attaining the age of 65. The question of supersession arose under paragraph (6 (1) (a) therefore subparagraph (2) applied to effectively cap any mobility award at the lower rate. That sub-paragraph operates to amend section 73(11) SSCBA so that it reads “the weekly rate of the mobility component payable to a person for each week in the period for which he was awarded the component shall be the lower rate”. That is the effect of the removal of the words set out in paragraph 6 (2) from section 73 (11).

This means that even where it can be shown that the recipient of a lower rate mobility award in fact qualifies or qualified for an award of the mobility component at the higher rate, the weekly rate of any mobility award is the lower rate.

Whilst the adjudication and appeal process is left in place the result of any such adjudication cannot be to increase the award, and as such any application for an increase is futile. My analysis does not indicate that the case is one in which the FTT lacks jurisdiction, but arguably an appeal could be dealt with at FTT level by applying the provision to strike out the appeal under rule 8 (3)(c) as having no reasonable prospects of success.

That would have been an available approach to a FTT had the DWP, as they were entitled to do, treated the 2014 supersession application, made some 4 months after the Secretary of State’s 2013 decision increasing the care award to the highest rate but refusing to increase the mobility component, as a late attempt to appeal that decision; the analysis that I set out above would have applied equally to an appeal against the earlier, 2013 decision.

For completeness I mention a reported decision of Upper Tribunal Judge Levenson R(DLA) 1/09 in which, having considered the purpose of the legislation and the interplay between DLA and AA in some detail, he rejected an argument that the concept of an age 65 cut-off was discriminatory or otherwise in breach of human rights law.

In the light of the above analysis the decision of the tribunal to entertain the arguments in relation to mobility was wrong; however the decision to which it came, that there would be no change to the existing award, was the only possible legal conclusion. For me to set their decision aside because it contained an error of law and substitute a decision to the same effect would be futile, so I leave the decision dismissing the appeal to stand.

In the circumstances the procedural matters are of secondary importance; indeed my observations become, in legal language, obiter dicta: ‘by the way’ remarks not critical to the outcome. Nonetheless I will deal with the procedural arguments because they formed the major part of the submissions before me.

I begin by saying that I see the force in Mr Malik's observations in respect of the inquisitorial nature of the tribunal, and in his references to the decision in Mongan –v- Dept for Social Development [2006] NICA 16, a decision of the Court of Appeal in Northern Ireland, which has echoes in the later case in the Court of Appeal in England and Wales in Secretary Of State for Work and Pensions-v- Hooper [ 2007] EWCA Civ 495.

Contrary to the view expressed by the Secretary of State’s submission it cannot be necessary for an application to be made for the obtaining of medical records by the tribunal or the facilitation or participation in the hearing by a domiciliary visit or other means of assistance prior to a tribunal considering whether it is just to take any particular steps to facilitate participation. There must, in an appropriate case, be a freestanding obligation on an inquisitorial tribunal to consider such matters and I reject the points made to the contrary by M Jagger on behalf of the Secretary of State.

That does not mean that a tribunal must initiate such enquiries in every case; it need not treat litigants who are unrepresented as if they invariably needed help and guidance. The tribunal process does not consist of the hearing alone. The administrative arm provides information and options to an appellant at the outset and where there is no contra indication in the case papers the tribunal can rely upon the choices a litigant has made. Many appellants do not want to be present at a hearing; they are used to decisions in respect of benefit matters being made without their oral input and are happy to make their points on paper. That is a legitimate position to adopt; it does not necessarily indicate that the person does not know any better, but the tribunal must be alert to the possibility of a genuine lack of understanding of the possibilities. As Upper Tribunal Judge Lane pointed out in AT-v-SSWP[2010] UKUT 430 (AAC)

In the Social Entitlement Chamber, where claimants tend to be unrepresented and often disadvantaged in a variety of ways, it may well be necessary for a tribunal to override an appellant’s choice in order to do justice.  This may occur, for example, where the tribunal notices (or should have noticed) a material point which could affect the outcome of the case which a layman would not appreciate, or where the tribunal believes the appellant may have evidence whose significance he does not understand. 

Similarly the tribunal might wish to find a way to enable someone who mentions an obstacle in the way of their attending, the chance to do so. What is suggested here is that a domiciliary hearing was the only way to facilitate participation.

As I said in the case of KO-v- Secretary of State For Work and Pensions (ESA) UKUT [2013] 544 (AAC), (KO-v-SSWP) cited in the submission of the Secretary of State, the position has changed in recent years in relation to domiciliary hearings.

There are procedures which must be followed which make these hearings difficult to arrange. Aside from their cost, and the procedure necessitates a full session being set aside when otherwise a panel of, in this case three, would be sitting at a venue hearing a number of cases, pre-hearing checks must be made before a home can become the temporary workplace for a tribunal and its administrative staff.

Further, since 2008 the tribunal procedural rules have crystallised the position under article 6 ECHR in relation to a fair and public hearing (rule 30 (1)). The case of CSE/912/2013, whilst not entirely on the point at issue here, emphasises the importance of justice being done in public, which is to say at a place to which the public have access and during the course of the normal business day. There are, however, provisions in the FTT procedural rules to hold a hearing in private (rule 30 (2)(b)), and that may be appropriate in cases where the subject matter is particularly personal or an appellant extremely sensitive, however what appears to be being called for here is the routine offer of a domiciliary hearing for somebody because they find it difficult to get around. I cannot accept that is either necessary or appropriate.

That position does not rule out participation for those who would find travel to a venue difficult. Transport can be arranged; it is unusual for somebody to be unable to go out at all, given assistance. Technology, including telephony, can conveniently enable the parties to give evidence and answer questions without physically attending. I need not elaborate, but I reiterate the remarks I made in KO-v- SSWP; the need for a domiciliary hearing would be wholly exceptional. There is no indication here that, were it thought to be necessary, arrangements other than holding the hearing at his home could not have been made to enable the appellant to attend or otherwise participate.

In fact the decision of the tribunal to accept the appellant's election to have the matter dealt with on the papers, given what they thought to be the compass of the hearing and their view as to the adequacy of the evidence which they already had was not unfair, and is sustainable.

As to whether under the procedural rules the wider picture can be taken into account, that is to say whether administrative resources can be a considered in relation to the holding of a domiciliary hearing where alternatives might be available more economically, the Secretary of State argues that they can. I agree. I find some support for that in the decision of Upper Tribunal Judge Jacobs in MH-v Pembrokeshire CC [2010] UKUT 28 (AAC) at [20] and [21]

As to delay, that is only relevant if it is compatible with the proper consideration of the issues. In any event, the delay would be short and would not cause any prejudice to the other party.

So far I have not considered the operation of the tribunal system as a whole. This is a permissible consideration. There would be some impact, as the resumed hearing of this case might cause other cases waiting for a hearing to be delayed. I suspect that too much can be made of this. There is surely always some flexibility in listing and the possibility of cases being substituted if other cases are adjourned out of a list. Any impact would be minimal. It was not caused by any deliberate act on the part of the claimant or his mother, merely their lack of understanding. And there had been no history of delay or tactical manoeuvring.