Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2000] NISSCSC C11/00-01(IB) (4 October 2000)

 


Decision No: C11/00-01(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998 INCAPACITY BENEFIT
Appeal to a Social Security Commissioner on a question of law from a Tribunal's decision dated 28 October 1999 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal, leave having been granted by myself, by the claimant against a decision dated 28^th October 1999 of a Social Security Appeal Tribunal (hereinafter called "the Tribunal") sitting at Newry. A hearing of the appeal was not requested and, having considered the papers on the case I consider that I can decide same without such a hearing.
2. My decision is given in the final paragraph.
3. The claimant was represented in the appeal by Mrs Carty of the Law Centre (NI) and the Adjudication Officer (now known as the decision maker) was represented by Mr McAvoy of the Decision Making and Appeals Unit. I am obliged to both representatives for their assistance. The claimant's grounds for appeal were as follows:-

1. The Tribunal erred in rejecting the claimant's evidence that she did not receive notification of the medical examination on 17^th May 1999, or

2. Alternatively that the Tribunal applied the incorrect standard of proof in relation to that issue.

3. That the Tribunal had insufficient evidence for its finding that the letter notifying the claimant to attend for the said medical examination on 17^th May 1999 was sent and delivered to the claimant's house.

4. The Tribunal gave no reasons for preferring the evidence of the Department to that of the claimant and thereby failed to comply with the statutory duty of giving an adequate statement of reasons.

4. In support of her arguments Mrs Carty referred to R(SB)33/85 and R(I)2/51 as supporting her contention that the Tribunal erred in rejecting the claimant's evidence that she did not receive notification of the medical examination on 17^th May 1999. She cited CIB/4961/1997 as supportive of her argument that the Tribunal had applied the incorrect standard of proof. She also cited CIB/4118/1998 as relevant to contention that the Tribunal had no evidence upon which to base a finding that the notice of the medical examination in question was actually generated, sent and received. It had only the Presenting Officer's assertion.
5. I am not of the view that decision R(SB)33/85 is authority for the view that the Tribunal was not entitled to reject the claimant's evidence. The extract quoted is given in the context of a situation where the Commissioner was dealing with whether or not corroboration of a claimant's own evidence was a necessary probative requirement. However in the preceding paragraph the Commissioner gives a statement as follows: -

"There are, of course, cases in which an Adjudicating Authority is well entitled "not to believe a word a claimant says"."

Both that statement and the one quoted by Mrs Carty were given in the context of dealing with whether or not corroborative evidence to that of a claimant was always necessary. However, it is quite apparent when the entirety of the decision is read that a Tribunal is free to accept or reject the evidence of a claimant. Where the claimant's evidence is not credible to the Tribunal it is entitled to reject it.

6. As regards the standard of reasoning to be adopted in cases of rejection of a claimant's evidence that will of course be subject to the general rule that a decision must be comprehensible. However, it may be worth calling to mind the view expressed by Henry L J in the case of Flannery v Halifax Estate Agencies Limited, (The Times (1999) March 4^th ) as follows: -

"Where there is a straightforward factual dispute where resolution depends simply on which witness is telling the truth about events which he claims to recall, it is likely to be enough for the judge (having, no doubt, summarised the evidence) to indicate that he simply believes X rather than Y; indeed there may be nothing else to say."

7. Where a Tribunal makes it quite clear that its does not believe evidence it is not obliged in every case to explain why it does not believe the evidence. The Tribunal is required to give adequate reasons for its decision. It is not required to give reasons for its reasons.
8. In this particular case the Tribunal has given its reasons for rejecting the claimant's evidence i.e. that it did not believe the claimant. While the claimant may understandably not like that reason it is nonetheless clear and is adequate in the circumstances of this case.
9. I do, however, consider that there was an error of law in this case in that on the evidence before it the Tribunal was not entitled to its finding that the claimant had been sent the relevant notification. The onus of showing that the notification was issued was on the decision maker. He only had to show this on the balance of probabilities. In this particular case there appears to have been no evidence before the Tribunal as to the notification being sent out. The Presenting Officer to the Tribunal indicated that a note was kept when letters telling people to attend for medical examination were sent out. He did not, according to the record of the proceedings, produce any indication that that note had been made on the present claimant's file. In many cases it would not be necessary to do so as there would be no dispute that the notification was issued but it was disputed in this case. It was necessary therefore for the Tribunal to ascertain and that there was some evidence that the notification of the medical examination was sent out. No such evidence was adduced. All that the Tribunal had was an unsupported assertion by the decision maker. It does not appear that the decision maker was responsible for issue of the relevant notice.
10. For that reason I consider that the Tribunal erred in law. I set the decision aside and remit the matter for rehearing to a differently constituted appeal Tribunal.
11. I direct the decision maker to present to that Tribunal such evidence (not necessarily oral) as is available as to the issue of the notification of the relevant medical examination. This may be by means of a note on the relevant file at the time when the notification was issued or alternatively and in addition such other evidence as is available. It will then be for the Tribunal to decide whether or not it is satisfied that the relevant notification was issued. If the Tribunal is of the view that the notification was issued and issued to the claimant's address it will then be for the claimant to establish that she had good cause for not attending the medical. It appears that the claimant's contention is that she did not receive the said notification. It is a matter for the Tribunal as to whether or not it accepts this evidence. If it does not it should give the claimant an explanation as to why it has rejected her evidence. Such explanation need not be unduly lengthy. Overall the reasons should explain to the claimant why the Tribunal reached the decision it did. That is the only standard which is required by law.

(Signed): M F BROWN

COMMISSIONER

4 OCTOBER 2000