Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1998] NISSCSC C73/98(IB) (22 February 1999)

 


Decision No: C73/98(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS

(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)

(NORTHERN IRELAND) ACT 1992

INCAPACITY BENEFIT

Application by the claimant for leave to appeal

and appeal to the Social Security Commissioner

on a question of law from the decision of the

Newry Social Security Appeal Tribunal

dated 19 February 1998

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an application by the claimant for leave to appeal against a decision dated 19 February 1998 of a Social Security Appeal Tribunal (herein after called "the Tribunal") sitting at Newry. I held an oral hearing of the application. Mr L... did not attend but Mr Brady attended to represent him and Mr Toner attended to represent the Adjudication Officer. I grant leave to appeal and with the consent of Mr Brady and Mr Toner, treat the application as an appeal and proceed to determine any questions arising on the application as though they were questions arising on appeal.
2. My decision is that the Tribunal decision is in error of law and is set aside. The case is remitted for hearing before a differently constituted Tribunal which should bear in mind the views set out below.
3. Mr Brady had essentially two grounds of appeal:-

(1) That the Tribunal had failed to make findings of material fact. It had made no findings on certain of the disputed descriptors. Mr Toner agreed with Mr Brady in relation to this ground and supported the application.

(2) That the Tribunal had erred in the conclusions which it drew from the use of its own observations. These were not in conflict with the claimant's own evidence. Mr Toner did not support this ground.

4. The Tribunal disallowed Mr L...'s appeal against an Adjudication Officer's decision that he was not entitled to Incapacity Benefit from 10 November 1997 as he had not scored 15 or more points on the All Work Test.
5. I would wish to deal firstly with the second ground put forward by Mr Brady, ie that the Tribunal's conclusions from its own observations were not warranted by the observations. In this connection I should state that a Tribunal is perfectly entitled to take its own observations into consideration. It is often preferable to put observations forward for comment by the parties but it is not necessarily an error of law not to do so. Any comment made by the parties may or may not of course be found credible by the Tribunal. That is a matter for the Tribunal to assess.
6. As regards the conclusions drawn by the Tribunal from the observations this is a matter for it as the fact finding body with responsibility for the assessment of evidence. I would not disturb such conclusion save in the most stringent circumstances of bad faith or perversity. As Mr Brady said the Tribunal's observations were not in direct conflict with the claimant's evidence. However, I am far from the view that the conclusions drawn from them were in any way perverse. Nor were they the sole reason for the decision. I consider there is no merit in this ground.
7. As regards the first ground of appeal which was supported by Mr Toner, the Tribunal certainly did not make findings on all matters of material fact. The claimant had put in issue 6 descriptors. The Tribunal made findings of fact on only one and also made a scoring on only one. It is perhaps possible to assume from the score sheet that because no points were awarded for this the Tribunal did not consider the claimant to have any limitations in respect of the remaining descriptors.
8. I do not find it necessary to decide whether or not I would set the decision aside for the absence of these findings alone although it is perhaps difficult for a claimant to know that the Tribunal has considered all his evidence if it does not make findings on such central matters and particularly so in a case such as this one. I am, also, of the view that the reasons for the decision were not adequate. They do not satisfactorily explain to the claimant why his evidence was not accepted and therefore why he did not win the appeal. The decision does not state that the claimant's evidence was not considered reliable. The Tribunal states that it preferred the "Clinical Evidence of the Medical Officer and Dr O'L...'s opinion". Dr O'L... did not of course give a direct opinion on the applicability of particular functional descriptors. The clinical evidence of the Medical Officer referred to appears to be the medical report but the Tribunal did not adopt it in its entirety as it's scoring is different than that which would have been made had the medical report been adopted in its entirety. The Tribunal is of course perfectly entitled to prefer the evidence of the Examining Doctor to that of the claimant. It may do so because the examining doctor is independent or because the Tribunal, having observed the claimant, does not find his evidence completely reliable or some other reason. A claimant may not like the reasons why a Tribunal has made the particular assessment of evidence which it has made. However, a decision is not in error of law for that reason. If the reasons for the decision adequately explain to the relevant party why he has lost, then a decision will not be set aside for inadequate reasoning.
9. In this case the reasons do not meet that standard.
10. Mr Brady asked me to comment on the note made by the Chairman under the "Findings of Fact" heading as follows:-

"The claimant's representative stated the claimant's position for

most of the presentation of the Appeal rather than the claimant

giving evidence himself which both lay members of the Tribunal

passed comment on".

It is not good practice save in very exceptional circumstances for a representative to give evidence which can and should properly come from a claimant. A representative's evidence is of little probative value. Except in the unusual circumstances where he is testifying on his own knowledge, a representative is merely giving evidence of what he recollects he was told. If he does not call his client to give evidence he will be at great risk of the Tribunal finding the case for his client unproven.

11. The Tribunal should endeavour to obtain the evidence from the claimant at first hand. If the representative instructs the claimant not to answer, and there was no indication that that was the situation here, the Tribunal may evaluate the representative's evidence accordingly and apply the onus of proof. The procedure of the Tribunal is, however, a matter for the Chairman and if a representative gives hearsay evidence which the claimant could give from his own knowledge, the matter can be raised at hearing. It is then up to the Tribunal to endeavour to obtain the relevant evidence from the claimant either by its own direct questions to the claimant or by asking the representative to question the claimant in a non-leading manner, or both.
12. As I do not consider that this is a case where I can give the decision which the Tribunal should have given, I remit it for rehearing before a differently constituted Tribunal.

(Signed): M.F.Brown

COMMISSIONER

22 February 1999