Northern Ireland - Social Security and Child Support Commissioners' Decisions

 


[2007] NISSCSC C34_06_07(DLA) (13 March 2007)

Decision No: C34/06-07(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Application by the claimant for leave to appeal

and appeal to a Social Security Commissioner

on a question of law from a Tribunal's decision

dated 28 March 2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This case begins as an application by the claimant for leave to appeal against a decision dated 28 March 2006 of an appeal tribunal sitting at Newry. I grant leave and with the consent of Mr O'Neill of Newry Citizens Advice Bureau, acting for the claimant and Mr Hinton, of Decision Making Services branch, acting for the Department, treat the application as an appeal and proceed to determine any questions arising thereon as if they arose on appeal. My decision is given in the final paragraph. I am obliged to both representatives for their clear and helpful presentations.
2. The background to the case is that the claimant, a woman in her forties, had been in receipt of disability living allowance (DLA) on foot of an award which terminated on 18 February 2006. She made a renewal claim and on 22 November 2005 the Department made an award of the lower rate of the care component of DLA on the basis of satisfaction of the main meal test for the period 19 February 2006 to 18 February 2008. The claimant, whose previous award had been for the lowest rate of the mobility component and the middle rate of the care component, appealed to a tribunal. The tribunal decided that she was not entitled to either component of the allowance at any rate. At the outset of its hearing the tribunal did warn the claimant that it could remove awards already in payment. The claimant, who was also represented by Mr O'Neill at the tribunal hearing, indicated that she was aware of this and wished to proceed. The tribunal reached it decision.
3. The claimant appealed to a Commissioner. The grounds of appeal are set out on an OSSC1 form received in the Commissioners' Office on 30 June 2006. They were amplified by Mr O'Neill in written skeleton argument and at hearing. Mr Hinton also lodged written skeleton argument and set out his opposition to the appeal in that argument and at hearing. The claimant did not attend the hearing.
4. The grounds, which modified somewhat during the proceedings, were essentially threefold though there were several issues raised within the grounds. The first ground was that the tribunal had erred in accepting part of the claimant's general practitioner's (GP) factual report and rejecting other parts of that report and not adequately explaining why it had done so. Mr O'Neill had stated at hearing that Dr M who had completed the said factual report saw the claimant rarely and was not her usual GP. (It appears there was an implication that the tribunal should not rely on the report for that reason). In placing reliance on the GP's factual report the tribunal had expressed the view that it was satisfied that Dr M would have acquainted himself with the claimant's file and thereby her condition before expressing his opinions. That being so, in Mr O'Neill's submission, the tribunal had erred in not accepting the entirety of Dr M's report and in not explaining why it rejected that part of Dr M's report which was favourable to the claimant though accepting the remaining unfavourable parts. Part of Mr O'Neill's submission relating to the GP report relied on CDLA/4580/2003. He submitted that the tribunal had erred in that it had concluded that the claimant's GP would have fully acquainted himself with her notes and it should not have done so without further clarification.
5. Mr Hinton opposed this, citing my decision in R3/04(DLA) and the decision of the Court of Appeal in Quinn v Department for Social Development [2004] NICA 22. Mr Hinton submitted that the weight to be given to evidence was a matter for the tribunal to be disturbed by an appellate body only if that conclusion as to weight was one which no reasonable tribunal could have reached. He referred also to paragraph 29 of the Quinn judgment where the Court of Appeal referred to an earlier decision of the Court of Appeal in Chief Constable of the RUC v Sergeant A [2000] NI261. The Court there stated:

"A tribunal is entitled to draw its own inferences and reach its own conclusions, and however profoundly the appellate court may disagree with its view of the facts it will not upset its conclusions unless –

(a) there is no or no sufficient evidence to found them, which may occur when the inference or conclusion is based not on any facts but on speculation by the tribunal (Fire Brigades Union v Frazer [1998] IRLR 697 at 699, per Lord Sutherland); or

(b) the primary facts do not justify the inference or conclusion drawn but lead irresistibly to the opposite conclusion, so that the conclusion reached may be regarded as perverse: Edwards (Inspector of Taxes) v Bairstow [1956] AC14, per Viscount Simonds at 29 and Lord Radcliffe at 36."

6. Mr Hinton also submitted further that the tribunal's reasoning on the rejected parts of the GP's report was clear and adequate. It had referred to the GP notes as not supporting the GP's opinion on the main meal test and had referred specifically to specialists' reports contained therein which were particularly significant.
7. I am in agreement with Mr Hinton in that the tribunal is entitled to give such weight to evidence as it sees fit provided it is not perverse. In this case the tribunal was entitled to rely to the extent it did on the GP's report. The claimant herself, in her renewal claim form received in September 2005, had represented Dr M as being the doctor who could give information about her case. The request to Dr M asked him to supply the report "based on your knowledge of the patient, and on their records." It is quite apparent from the report that records have been checked. There is reference to the claimant having been seen at various clinics. There is a reply of "no record" to a question about falls and there appears to be a photocopy of a prescription record attached to the report which indicates that the claimant's "Usual Doctor" was Dr M. The tribunal against that background was clearly entitled to reject the claimant's contention that it should not rely to any extent on this evidence. It has clearly explained why it did so and it was not perverse in so doing.
8. As regards the argument that the tribunal should have either accepted the report of Dr M in its entirety or rejected it in its entirety, I agree with Mr Hinton that there is no merit in this argument. The tribunal is free to accept or reject part of a witness's evidence according to its assessment of that evidence. (CIB 297/05, a decision of Mr Commissioner Howell, is an instance of this principle being applied). That is long term settled law and common to courts and tribunals. To give an example, if a witness gives evidence which a court or a tribunal considers to be partly truthful and partly not, it is quite entitled to rely on the part it considers truthful and reject the rest. As to the reasons of the tribunal for its views on the evidence in this case, these are in my view adequate. Dr M was giving his opinion on the claimant's ability to dress/undress and prepare and cook a meal. It is quite apparent from the reasons (as Mr O'Neill indeed accepted in response to my question at hearing) that the tribunal disagreed with this opinion. It did not accept that the "generalised discomfort of the back with intermittent exacerbations" was such as to prevent the claimant doing these things for herself. It clearly concluded that she reasonably could be expected to do so. The tribunal has referred to having taken a "broad approach" and, as Mr Hinton submits, that is the correct approach.

I consider there to be no merit in ground 1.

9. Mr O'Neill also submits that the tribunal had erred in relation to its inquisitorial role in that it had failed to give the claimant the opportunity to refute her GP's report and in connection with the medical records. I presume this refers to those parts of the report which were not favourable to her claim. In Mr O'Neill's submission there was much in the GP records which supported his client's case. The tribunal record was, he submitted, incomplete in that he had made references at the hearing to hydrotherapy and other treatments noted in the GP records which were not mentioned in the tribunal record.
10. To some extent this ground is dealt with above. In addition I consider there to be no merit in this matter as regards the records. I note the tribunal records evidence from the claimant that she had "never got an appointment for hydrotherapy". The mere fact that certain treatments may have been prescribed is not conclusive as to entitlement or otherwise. Mr O'Neill also mentioned that the GP records contained much that was favourable to his client and that other matters in the GP records were not mentioned by the tribunal. I am unable to conclude that there is any error in that respect. I indicated to Mr O'Neill at hearing when he raised this matter that I did not have the GP records. He stated that he wished to proceed despite that. I conclude that no error of law has been shown in relation to this matter.
11. It is also worth remarking in this connection that the tribunal is not required to comment on every piece of evidence before it. It is required to explain its decision. Lord Penrose in the case of Asif v Secretary of State for the Home Department 1999 SLT 890 at 894 G-H stated as follows:

"… nothing could be more destructive of the efficient disposal of immigration appeals than the notion that the adjudicator and the tribunal are under an obligation to carry through a mechanical process of narration of the evidence, analysis of it into classes, and explanation factor by factor of the relevance, or irrelevance, credibility and reliability or otherwise of it."

12. I am in full agreement with those views and consider them to apply equally to tribunals dealing with social security. The reasons must adequately explain the decision. They must show the basis on which the tribunal reached its decision. I consider that they did so in this case. The tribunal has clearly indicated its assessment of the evidence and the assessment is in no way perverse. There is no real controversy as to the tribunal's application or interpretation of the statutory conditions. Essentially Mr O'Neill is contending that the tribunal was not entitled to its factual conclusions. I consider it was so entitled and it has clearly indicated why it reached those conclusions.

The third ground

13. Mr O'Neill submitted also that the tribunal had failed to exercise its inquisitorial role in not exploring why the GP had stated the claimant walked with a "slow laboured gait" and in not making enquiries as to how frequently there were exacerbations of her condition, the GP having mentioned that such exacerbations occurred. Mr O'Neill said that the tribunal had adopted a broad brush approach. Mr Hinton agreed with this last point submitting that it was an assessment of the overall and usual situation which the tribunal had to reach. Mr Hinton submitted that there had been no failure of the inquisitorial role. The tribunal had addressed the issue of pain, had considered the evidence and indicated which evidence it relied on.
14. I consider there to have been no such failure. The claimant was given opportunity to present her evidence and stated that since November 2005 (prior to the time when her previous award expired) her condition had worsened; that she had a good day twice per week and other details about her situation. The tribunal, having considered the medical evidence, concluded that she was exaggerating her limitations. It expressly stated that it had adopted a "broad approach". As Mr Hinton correctly submits that is the correct approach. In R(A) 2/74 the then Chief Commissioner in Great Britain referring to a decision by a delegate of a Medical Board, stated at paragraph 35 that the delegate:

"should take a broad view of the matter, asking himself some such question as whether in the whole circumstances the words in the statute do or do not as a matter of the ordinary usage of the English language cover or apply to the facts. These are matters for the good sense and judgment of the delegate".

15. The Chief Commissioner endorsed this approach in C44/97(DLA) (paragraph 20). The tribunal here did take a broad approach and was correct to do so. It has obviously considered evidence of exacerbation and fluctuation. It also, however, was of the view that the claimant exaggerated her condition and it relied on the medical evidence in reaching that view. It was entitled to do so. The findings of Professor F and Mr McC are particularly noted and relied on. The tribunal was entitled to rely on these consultants' findings. So doing and applying the broad brush approach its conclusions were, in my view, sustainable. Whether or not I agree with the tribunal on factual matters is not relevant. I am not entitled to disturb those conclusions so long as they are sustainable on the evidence and the assessment of evidence is reasonable. It appears that they were so in this case. I therefore dismiss the appeal.

(signed):

Moya F Brown

Commissioner

13 March 2007

C340607DLA.MB