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A tribunal must be free to exercise independent judgment on the evidence before it when deciding whether a fixed term award of PIP is inappropriate.

30th March, 2022

DT v. Department for Communities (PIP) [2021] NI Com 54

Background

In February 2017, the claimant claimed PIP on the basis of needs arising from mental health issues, including bipolar disorder and personality disorder, depression and rubeotic glaucoma.

In 2009, the claimant had been awarded DLA high rate mobility and high rate care for an indefinite period. The Department decided that she was not entitled to PIP. That decision was revised after a mandatory reconsideration when she was awarded standard Daily Living component for three years.

Represented by Law Centre NI, the claimant appealed. On appeal, she was awarded enhanced Daily Living component and standard Mobility component from June 2017 for five years.

The claimant appealed to the Social Security Commissioner. At her appeal, Law Centre NI argued that the tribunal erred in law by not giving reasons for limiting the claimant’s award to five years. The tribunal also erred by failing to make adequate findings of fact in relation to Mobility activity 2. The Department supported the claimant’s appeal.

Legal issue

The claimant’s appeal concerned legislation which addresses the duration of a PIP award. Article 93 Welfare Reform (NI) Order 2015 states:

‘93(1) A person is not entitled to personal independence payment for any period before the day on which a claim for it is made or treated as made by that person or on that person’s behalf.

(2) An award of personal independence payment is to be for a fixed term except where the person making the award considers that a fixed term award would be inappropriate.

(3) In deciding whether a fixed term would be inappropriate, that person must have regard to guidance issued by the Department. [Emphasis added]

(4) Information supplied under this Part is to be taken for all purposes to be information relating to social security.’

Article 93(3) refers to ‘guidance issued by the Department’. Following enquiries by the Commissioner, the parties agreed that the guidance issued by the Department is P2061 to P2065 of the Advice for Decision Makers Guide, ‘Duration of award’.

P2062 states:

‘Where following an assessment consultation, it is considered that the claimant has

1. a level of functional ability which is not likely to change in the long term or

2. high levels of functional impairment which are only likely to increase a fixed term award will be inappropriate and an on-going award with a Personal Independence Payment award review date after 10 years will be applicable.

Note: this is the guidance issued by the Department in accordance with legislation. (WR (NI) Order 15, art 93(2) [sic].’

Decision

As the claimant’s appeal involved a question of law of special difficulty, the Chief Social Security Commissioner made a direction under Article 16(7) Social Security (NI) Order 1998 that the appeal should be dealt with by a Tribunal consisting of three Commissioners.

The Commissioners identified three matters for determination:

  • The adequacy of the tribunal’s reasons for the level of award
  • The adequacy of the tribunal’s reasons for making a fixed term award and
  • The place of guidance issued by the Department.

The adequacy of the tribunal’s reasons for the level of award:

The Commissioners decided that the tribunal’s reasons for its award of standard rate Mobility were insufficient. The tribunal rejected the claimant’s contentions about her mobility, deciding that she had no, or no significant, physical difficulties in walking. However, the tribunal failed to adequately explain its reasons.

The tribunal’s failure to explain was particularly important in light of the claimant’s previous award of DLA high rate mobility. The Commissioners acknowledged that the criteria for DLA and PIP are different. However, an award of DLA high rate mobility suggests physical walking problems that would score some points within the PIP descriptors. A complete absence of points required explanation by the tribunal.

The adequacy of the tribunal’s reasons for making a fixed term award:

The Commissioners noted that under Article 93(2), the starting point for deciding the duration of a PIP award is that it should be for a fixed term. The onus is then on the decision maker to consider whether a fixed term award is inappropriate. While acknowledging that this is essentially an issue of judgment, the Commissioners stated that ‘some reasoning is necessary to explain to somebody why, for example, a two year award has been made, rather than a ten year award’.

The Commissioners referred to the general principle stated in C2/09-10 (DLA), which although relating to DLA, they considered to be applicable to PIP. At paragraphs 46 and 47, the Social Security Commissioner stated:

‘It is clear, however, that where an appeal tribunal makes a decision that an award of entitlement to DLA should be for a fixed period then the appeal tribunal in its statement of reasons, should provide an explanation as to why the award is for a fixed period. Support for that conclusion is to be found in the decision of the Chief Social Security Commissioner in C6/94 (DLA). In that decision, the Chief Social Security Commissioner was discussing the making of awards of DLA in the context of a general provision relating to the duration of awards. Nonetheless, his remarks concerning the requirement for a clarification of the reasons for the limitation of an award remain applicable.

The Chief Social Security Commissioner made it clear that the requirement to explain a limitation in award is not onerous. He described it, in paragraph 7, as the appeal tribunal making it "…clear that they have considered the point and explain in brief terms why they have decided that the award should be for the fixed period which they have selected…".'

At paragraph 32, the Commissioners stated:

‘Applying the principle in C2/09-10 (DLA), the tribunal here failed to explain why it limited its awards to five years. This was significant because of the chronic nature of the claimant’s conditions both physical and mental. Accordingly, the omission amounts to a material error of law.’

The place of the guidance issued by the Department:

Article 93(3) requires a person making an award of PIP to have regard to guidance issued by the Department on the duration of the award. The parties agreed that the ‘guidance’ is contained in P2061 to P2065 of the Advice for Decision Makers Guide, ‘Duration of award’.

The Commissioners decided this raised three questions:

  1. Does the expression ‘the person making the award’ refer only to a first instance Departmental decision maker, or does it also refer to appellate bodies, which might potentially include the tribunal, the Commissioner, the Court of Appeal or the Supreme Court?
  2. If it does refer to those appellate bodies, what is the effect of the expression ‘have regard to’ and to what extent does it constrain the exercise of that body’s judgment?
  3. If it can constrain the exercise of that body’s judgment, how does the fact that an independent appellate body might be constrained by guidance issued by a party in the proceedings affect the fairness of those proceedings, and to what extent is it compatible with Article 6 of the European Convention on Human Rights and Fundamental Freedoms (ECHR) as it applies in Northern Ireland under the Human Rights Act 1998 and Northern Ireland Act 1998?

The Commissioners noted that the guidance contained in the Advice for Decision Makers Guide is created to assist Departmental staff in the interpretation of what the regulations mean and what actions they may require. The Commissioners noted that the guidance is only accessible online and is not generally referred to by the Department in submissions to PIP appeals. It is not externally focused or addressed to other bodies involved in the decision making and appeal process. The Commissioners commented that there is ample case law to demonstrate that the guidance is not binding on bodies other than Departmental staff.

Specifically referring to a tribunal’s role in deciding an appeal, the Commissioners state at paragraph 47:

‘Such a judicial body cannot be constrained in its remit or deliberations, it cannot be directed as a matter of law to pay specific attention to an extra statutory document drafted by one party. Of course, that party can put the same document before the tribunal written in evidence or submissions. Then, under the usual judicial process, the tribunal will read the document and decide on its relevance or otherwise; where it is of relevance, a tribunal will have to explain what it has made of the document: that is the nature of litigation.’

The Commissioners state that any other position would be a breach of Article 6 ECHR and in order to ensure ‘a fair and public hearing … by an independent and impartial tribunal’, Article 93(3) should be interpreted to mean that tribunals do not have to have regard to Departmental guidance.

The Commissioners decided that the tribunal must be free to determine the question of whether a fixed term award would be inappropriate on the evidence before it, exercising independent judgment. They would have regard to Departmental guidance because it was, in effect, pleaded. The Commissioners did not consider that they were bound to do so under the Welfare Reform Order.

At paragraph 52 the Commissioners state:

‘Even if we are wrong about that, we consider that the height of any obligation on tribunals is to ‘have regard to’ the guidance. The guidance itself indicates that a fixed term award is likely to be inappropriate where the claimant has a level of functional ability which is not likely to change in the long term, or high levels of functional impairment which are only likely to increase. This is not a particularly contentious formulation, as it reflects basic common sense and pragmatism when it comes to fixing the duration of an award. It is also sufficiently general to be met in a variety of specific circumstances’.

At paragraph 53:

‘More practically in the particular case, there is nothing to indicate that the Department alerted the tribunal to the existence of guidance under Article 93(3) in its submission. If the policy has not been communicated to the tribunal in the present case, we cannot accept that it was required to have regard to it, even less can the tribunal be held to have fallen into error of law in not doing so’.

On reviewing the claimant’s GP notes and records, the Commissioners decided that the claimant’s problems with back pain and abscesses were chronic. There were no changes in the claimant’s impairment since the award of high rate mobility DLA: if anything the impairments were worse. The Commissioners decided that the tribunal should have given reasons for not awarding the claimant points for physical walking problems.

The Commissioners decided to award eight points under Mobility Activity 2(c), on the basis that the claimant can stand and then move unaided for more than 20 metres but no more than 50 metres. Adding these eight points to the 10 points already awarded under Mobility Activity 1(e), entitled the claimant to the enhanced rate of the Mobility component.

The Commissioners decided that given the chronicity of the claimant’s medical conditions and the unlikelihood of any dramatic change in her ability to function and mobilise, a fixed term award was inappropriate. They decided that the claimant should be entitled to an ongoing award of enhanced Daily Living and enhanced Mobility PIP.

For a copy of the judgment, click here.