Northern Ireland - Social Security and Child Support Commissioners' Decisions

Decision No: A73/06-07(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992
SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
DISABILITY LIVING ALLOWANCE
Application by the above named claimant for leave to appeal to a Social Security Commissioner on a question of law from a Tribunal's decision dated 9 February 2006
DETERMINATION BY THE SOCIAL SECURITY COMMISSIONER

Another Commissioner has already ruled that there are special reasons for accepting this application to a Commissioner. An oral hearing was requested but, having regard to the copious documentation in the papers, all of which I have carefully considered, and that it is plain that the application would not have succeeded before the tribunal on 9 February 2006 (the tribunal), even had all of the video tape evidence been excluded, and therefore her suggested arguable error of law made no material difference to the tribunal outcome, I judge that the application can properly be considered on the papers. For the same reason, that it does not appear that there is any sufficiently arguable ground with reasonable prospects of success for holding that there were or may be errors of law of which it can be said that they were, in the event, relevant, leave to appeal against the decision of the tribunal is, accordingly, refused.

REASONS

Evaluation of the evidence and determination of the merits is for the tribunal. The Commissioner's jurisdiction is limited to errors of law and none which could make a difference have been demonstrated by the applicant nor discerned from the documents. Unless there is an irrational or improper approach or it is inadequately explained, a Commissioner cannot interfere.

In R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982, the Court of Appeal in England and Wales emphasised the requirement for errors by appellate legal tribunals to be material before an appeal on point of law may succeed: "Each of these grounds for detecting any error of law contains the word 'material' (or 'immaterial'). Errors of law of which it can be said that they would have made no material difference to the outcome do not matter." Importantly for this jurisdiction, that guidance was followed by a Great Britain Tribunal of Commissioners in R(I)2/06. If the error would not have affected the outcome, an appeal does not succeed.

To this extent, I agree wholly with the submission on behalf of the Department dated 5 March 2007: it is crystal clear from the tribunal's reasoning that, leaving aside the observations on film and those recorded in writing without the applicant being filmed, the tribunal was fully satisfied, from such important indicators as the records of the general practitioner (GP), the clinical findings relating to the applicant (as distinct from her recorded history, which the tribunal found lacked credibility, as did her completion of the 2002 claim form) at the medical examinations for industrial injury benefit, the applicant's medication between 1994 and 2002 and her lack of attendance at the Pain Clinic in that period, the x-ray report in 2000, and the tribunal's assessment of unreliability in the applicant's own account and in that of the GP in the course of supporting her claim to disability living allowance (DLA), that there was a relevant change of circumstances on a balance of probabilities through what the tribunal found was an improvement of function in the applicant's back, which constituted a ground for supersession, and that on supersession, the tribunal was satisfied to the same standard that from 25 June 2001 she no longer fulfilled the criteria for entitlement to DLA, either component at any rate.

The applicant's grounds relate to matters of fact and degree which are for the tribunal seeing the witnesses and hearing and reading the evidence to determine, and the conclusions reached were open to it as a reasonable tribunal on the evidence to which it referred. The only way error of law in exercising judgment in the application of a statutory test could arise is where (per Lord Fraser in G v G [1985] 2 All ER 225 at page 229) a tribunal came to a conclusion that "exceeded the generous ambit with which a reasonable disagreement is possible". In no respect could the tribunal's decision be regarded as perverse on that basis.

The weight to be given to any evidence is completely a matter for the tribunal and is a matter of fact. It can be disturbed by a Commissioner as an error of law only if the conclusion as to weight is one which no reasonable tribunal could have reached. Having carefully considered all the evidence in the papers, I am not of the view that the way the tribunal assessed competing evidence is such as no reasonable tribunal could have so done, and it fully explained its process of reasoning.

The above makes academic the issues raised in the grounds of the application, so I need therefore deal with them only relatively briefly. Under Article 8(1) of the European Convention on Human Rights (ECHR), everyone has the right to respect for his or her private life. As was said by Mr Commissioner Jacobs at paragraph 7 of R(DLA)4/02:

"Article 8(1) does not guarantee a right to a private life. It guarantees only "respect" for private life. The reason for that limitation is obvious. It is a feature of everyday life that our private lives are continually impinged upon by others. Life in a community is only possible because measured interference with our private lives is tolerated. That interference is accepted by us as individuals (to a greater or lesser extent, depending on our temperament). It is recognised, and sometimes imposed, by domestic law."

With the possible exception of the observations of 4 December 2001, when the investigators peered at the applicant without her knowledge when she was in the private setting of a house, I agree with the submission on behalf of the Department of 30 March 2005 that there was no lack of respect for the applicant's private life within Article 8(1). Again, as was said by the Commissioner in R(DLA)4/02, at paragraphs 18 – 21:

"18. The checks involved observing and making videos of the claimant. At the time, there was no code of practice governing investigations, but section 30(7A) of the Social Security Administration Act 1992 contained general authority for the Secretary of State to undertake investigations to obtain information and evidence on which an application for a review could be based. There is nothing to suggest that the officers were investigating for any other purpose.

19. The claimant was observed and filmed without her knowledge. But she was only filmed for two short periods, amounting to no more than a couple of minutes in total. She was filmed in a public place and the film merely showed her walking ability at that time and place. The film showed no more than would have been apparent to any member of the public who happened to be passing or, for that matter, to a tourist who happened to be filming in the street at the time. The video has only been used in support of the written statements of the investigators. It has only been used for the purposes of the reviews and appeal.

20. The claimant was also observed without her knowledge on other occasions and the observations were recorded in writing without her being filmed. She was observed only when she was in public places or places to which the public had access. The periods of observation were relatively short and no longer than necessary to show her mobility. The investigators saw no more than could be seen and reported by any member of the public. The recorded observations have only been used for the purposes of the reviews and the appeal.

21. My conclusion is that there has been no breach of Article 8(1). The decision to investigate, the extent to which the claimant was investigated, the manner in which the investigations were carried out, the use that was made of the material collected, and the retention of that material for adjudication purposes were all consistent with showing respect for the claimant's private life."

It may be that spying on the applicant when she is in a private place is a prima facie breach. However, in my judgment, and here I disagree with the submission by the Department of 30 March 2005, it was "in accordance with the law" under Article 8(2). No trespass or deception was involved. The code of practice, establishing what is or is not now permissible as conduct by public authorities, was not then in place; but that there was no specific law germane to surveillance organisations at the relevant date does not make what was done against the law, in which case it follows that it was in accordance with the law.

Moreover, the observations in the street, in the office, and even from the road into the applicant's home, were all justified under the limited and defined circumstances set out in Article 8(2). As was said by Lord Nolan in McNally v RG Manufacturing [2001] Lloyds Reports 379, if a party is making:

"… an inflated, exaggerated or unjustified claim, then [she] is seeking other peoples' money to which [she] is not entitled. It is clearly both just and fair that [she] should be prevented from succeeding in this. In order to uncover this deception steps may have to be taken which involve [her] being misled or[her] privacy being infringed. Misleading [her] may be the only practical means of showing that [she herself] is misleading other people."

I stress that there was no misleading in the present case, however, nor any illegality.

If the tribunal had been right that the observations of 4 December 2001 of the applicant in her home were a breach of Article 8, then the only way it could address this was in the context of Article 6 and the tribunal's requirement thereunder to afford the applicant a fair hearing. I do not at present agree with what is said in R(DLA)4/02, that a tribunal never has power to exclude any relevant evidence. A breach of Article 8 may be a pertinent circumstance for a legally qualified panel member (LQPM) to weigh in the balance when making orders as to the management of the proceedings.

How the LQPM should exercise his or her discretion, however, certainly depends upon all the circumstances. This must include the gravity of the breach of Article 8, which will turn on the facts of the particular case. There is, moreover, the conflicting public interest that not only the applicant receives a fair hearing, but that the Department does so too, and that preferably all relevant evidence is placed before the adjudicating authority. Whether or not there is a breach of Article 8, there should always be proper disclosure in advance of material to which objection could be taken and an appropriate opportunity given to make that objection. The tribunal undeniably afforded a fair hearing in this respect. It may also be sensible that the public playing of a video recording is avoided before it has been determined whether its use is a breach of Article 8. It was unnecessary for a private hearing to be directed in the present case because, as is usual, no members of the public attended.

I thus do not rule out the possibility that, in very exceptional circumstances, a tribunal has the power to exclude other than irrelevant evidence. It must sift with great care any material to which objection is taken on the basis of an Article 6 infringement by an Article 8 breach, and keep out such evidence only where the transgression is both clear and very serious. The tribunal carried out this task with exemplary thoroughness; following that sifting exercise and having set out its reasons, it disregarded only the record of observations in the applicant's home and did not view the video of the same.

But even if the tribunal has such a discretion, which I do not require to decide because the exercise of it in the present case did not affect the outcome, I consider that the observations of the applicant in her home should, in fact, have been admitted. Any possible impropriety is much less marked that that in Jean F Jones v University of Warwick, [2003] EWCA Civ 151, where the Court of Appeal in England and Wales held that, despite video film evidence being obtained through a deception and thus a trespass, it was nevertheless to be admitted. At paragraph 28 of the judgment of the Court, given by the Lord Chief Justice, he said:

"… The decision will depend on all the circumstances. Here, the court cannot ignore the reality of the situation. This is not a case where the conduct … is so outrageous … It would be artificial and undesirable for the actual evidence, which is relevant and admissible, not to be placed before the judge who has the task of trying the case."

If there was a breach of Article 8 in the current appeal, it was most certainly not a fundamental breach, as contended on behalf of the applicant; even if a tribunal has a power to exclude information on the basis that it was improperly obtained, it was inappropriate to use it in the present case. But I agree with the submission of the Department on 5 March 2007 that any error of law by the tribunal in excluding that small part of the evidence, which omission was insignificant when viewed against the totality of the evidence, did not vitiate the tribunal's decision. This is particularly so when correcting the error in no way advantages the applicant and when I am wholly satisfied that she received a fair hearing.

The tribunal has provided adequate facts to justify its decision and fully explained its reasoning for the benefit of the applicant, with a clear indication in particular of why it took the view of the evidence it did. There is no indication that the wrong statutory tests were applied and, from the evidence, the decision reached was not one which no tribunal, acting judicially and properly instructing itself on the law, could have reached. There was a hearing which the applicant attended with her representative and where sufficient of the available evidence and all of the argument was fully considered in order to substantiate the decision on the merits.

(Signed): L T PARKER

NI Deputy Commissioner

(GB Commissioner)

(Dated) 23 August 2007