Northern Ireland - Social Security and Child Support Commissioners' Decisions

 


Decision No: C22/06-07 (DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Appeal to a Social Security Commissioner

on a question of law from a Tribunal's decision

dated 21 November 2005

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal, leave having been granted by the Chief Commissioner, J A H Martin QC, by the claimant against a decision dated 21 November 2005 of an appeal tribunal (the tribunal) sitting at Lurgan. The appeal is supported by the Department which was content that its observations on the application were treated as observations under Regulation 18(1) of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999. The claimant had the opportunity to respond to the observations from the Department. I have taken into account all the submissions made by the parties when reaching my decision.

Inadequate Reasons

2. As the Great Britain Commissioner stated in CIB/3108/2005 (paragraph 10):

"Whenever a tribunal declines to consider evidence, that should ideally be recorded in the record of proceedings, together with a note of the reason that will usually have been given orally to the parties. Whether or not that is done, a reference to the refusal to consider the evidence is usually to be expected in the statement of reasons …".

3. It is clear that the claimant's contention that the tribunal refused to consider photographic evidence she wished to place before the oral hearing is correct because, attached to the refusal of the application for leave made to the legally qualified member, is the comment that the tribunal:

"… did decide not to look at photographs but only because we accepted the Appellant's evidence regarding their content and so had no need to view same".

4. The claimant has now subsequently complained that the tribunal also refused to look at her X-rays. Denying a claimant the opportunity to bring evidence which she wishes to produce in support of her case may amount to a breach of the rules of natural justice. At minimum, there must be a cogent and reasoned refusal explaining why such evidence is not considered relevant. As was also said by the Great Britain Commissioner at paragraph 10 of CIB/3108/2005:

"That is not to say that a tribunal is bound to consider such evidence. In this case, both members of the tribunal have referred to the medically qualified panel member's lack of expertise in analysing X-rays. If a tribunal is presented with X-rays that it cannot analyse, there must arise the question whether it should adjourn the proceedings so as to enable the parties to obtain a report from the relevant expert from among those treating the claimant. A failure to adjourn where a claimant has brought evidence that he not unreasonably thought the tribunal would be able to understand may amount to a breach of the rules of natural justice because the claimant is effectively being denied the opportunity to put his or her case properly. Deciding whether or not to adjourn will involve consideration of the relevance of the X-rays and the likelihood of them being helpful in relation to a live issue in the case. Where a person complains of back pain, it is usually accepted that he or she suffers from some such pain. The questions are usually: how much and how disabling is it? If an X-ray is unlikely to give much indication as to how disabling the condition is, except in the most serious cases, there may well be little to gain from adjourning, and a tribunal may properly refuse to do so. However, if asked for a statement of reasons, it should explain what its approach was …".

5. It may well have been that neither X-rays nor photographs in the present case could assist the tribunal in determining the extent of the claimant's disability and how it affected her mobility and her need for care from another. Whether or not that is the case, the tribunal erred in law in failing to detail either on its record of proceedings or in its statement of reasons, or both, why it determined not to look at the photographic evidence (and possibly X-ray evidence) which the claimant sought to put before it. That error of law makes it expedient for me to set aside the tribunal's decision.

Failure to put Observations for Comment

6. Although the matter has not been raised by the parties, I note that the tribunal relied, in refusing entitlement to the higher rate mobility component of disability living allowance (DLA), on the following observations made by itself:

"Twice on getting up before the Tribunal, she rose quickly and walked confidently to the door and out of same, on one occasion bending quickly to lift her crutch".

There is no indication from the record of proceedings that these observations were put to the claimant for her comment. There is no obligation on a tribunal to accept a response that might have been made to such observations, but it must take it into consideration and briefly explain to her why it has made the findings it has, having regard both to its observations and her explanation.

Summary

7. The appeal is therefore remitted to a new tribunal to begin again. It is emphasised that there will be a complete re-hearing on the basis of the evidence and arguments available to the new tribunal, and in accordance with my guidance above, and the determination of the claimant's case on the merits is entirely for them. Although the claimant has been successful in her appeal limited to issues of law, the decision on the facts in her case remains open.
8. I do not consider it expedient that I should give the decision which the tribunal should have given. I do not have the claimant's GP records which would be helpful. Nor have I heard the claimant's oral evidence. The claimant now raises fresh matters which may, or may not, be relevant to her circumstances at the time of the decision under appeal to the tribunal (19 March 2005), beyond which circumstances may not be taken. The assessment of evidence is better dealt with by a new tribunal which contains in its membership a person with medical qualifications as well as one with experience of disability.
9. There are, however, some misconceptions in the appeal with which I must deal. There is no substance to the assertion that the legally qualified member pre-dated the statement of reasons. Although he wrote the statement after the hearing, it constituted a statement of the reasons for the tribunal decision when it was made, which was on the day of the hearing, and therefore bore the hearing date on its face.
10. There was no discrimination against the claimant. The claimant regards the tribunal's reference to her as a person who "can work" as amounting to discrimination against an employed person who attempts to work. She is correct that an ability to work may be entirely compatible with entitlement to DLA. However, the tribunal found that the appellant "can work … without using her crutch", which it considered revealed exaggeration with respect to some of her other claimed limitations.
11. The tribunal's comment with respect to the claimant working was not because of discrimination against her on that basis but was merely an aspect of its analysis of the evidence. Unless no reasonable tribunal could evaluate as it did in its assessment, then no error of law can thereby arise. Matters of judgment on the factual application of the statutory tests, or on which evidence is preferred and why, are exclusively for the tribunal unless its exercise of judgment is such as no reasonable tribunal could make on the basis of the facts found and having regard to the evidence. That has in no way been demonstrated in the present case. The appellant disagrees on the merits, but that is a different matter.
12. There is a similar misunderstanding of the legal criteria by the claimant when she complains of discrimination against her as a single parent in the statutory test with respect to cooking. She queries why the ability to cook only for oneself should be considered when she in fact has to cook for four children. It is, however, the function of the adjudicating authorities to apply the legal rules. If she has a complaint with the policy she must take that up through political channels. The statutory test in issue relates to an ability to:

"… prepare a cooked main meal for [herself] if [she] has the ingredients."

13. As I have already made clear, the evaluation of evidence (as to credibility, accuracy and weight) is a matter for the tribunal which may accept or reject evidence. A tribunal hearing is a judicial proceeding. DLA is a costly benefit to which a claimant is entitled as of right, provided she is able to establish on a balance of probabilities what are the facts in her case and that she fits the statutory criteria. To this end, robust assessments may have to be made by a tribunal, which a claimant may not like. However, provided there is no irrational or improper approach and it is adequately explained, that is a matter of fact for the tribunal and not an issue of law for a Commissioner.
14. As noted in the submission on behalf of the Department, there is no requirement that a presenting officer (PO) attend the hearing to put the Department's point of view. The tribunal had the Department's submission and was entitled to rely solely upon this. Outwith exceptional circumstances, which have not been suggested by the claimant, no disadvantage arose to her from the lack of a PO at the hearing.
15. Finally, in her application to the Chairman, and repeated again in her response to the Department's submission, but not mentioned in the grounds of appeal to the Commissioner, and therefore not addressed by the Department, the claimant said this:

"Is it legally acceptable for a member of the panel to be in contact with the claimant during the time interval from interview to receiving statement of reasons?"

16. The Chairman has explained that the only contact was the following: after he had posted his statement of reasons back to the Appeals Service, he had a medical investigation carried out by the claimant when he recognised her but "… of course nothing was said at all pertaining to the Appeal". However, because of the date when she received her reasons for decision, the claimant disputes the suggestion that this had been settled and sent before she met the Chairman professionally. She does not say how the latter event could have affected matters.
17. Delays can occur within any organisation in dealing with documents. There is no reason to dispute the good faith of the Chairman in this respect. In any event, the adverse decision was issued to the claimant on the day of the hearing and any subsequent contact does not change the nature of the adverse decision made which is based on the reasoning of the tribunal when they sat together.
18. There is no suggestion of subjective bias on the part of the Chairman which would be present if he started off with an actual prejudice for or against the claimant. The test for objective bias was set out by the House of Lords in Magill v Porter [2002] H.R.L.R.16:

"The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased".

Having regard to the above, that has not been demonstrated; but in the event, the issue is academic, because the claimant has won her appeal on other grounds and the matter will go before a tribunal newly composed and containing none of the original members. If, by mistake, there is a member on the new panel who is familiar to the claimant, she must object immediately. However, it is unrealistic to exclude any person where there is a mere possibility of their paths crossing in the future; what is relevant is past involvement or proven future contact and not a speculative future possibility which may be entirely fanciful.

L T Parker

Deputy Commissioner

16 November 2006