Northern Ireland - Social Security and Child Support Commissioners' Decisions

 


[2009] NISSCSC C16_07_08(DLA) (02 March 2009)

Decision No: C16/07-08(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 30 April 2007
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. The decision of the appeal tribunal dated 30 April 2007 is not in error of law. Accordingly, the appeal to the Social Security Commissioner does not succeed. The decision of the appeal tribunal to the effect that the appellant is not entitled to either component of disability living allowance (DLA), from and including 24 October 2006, is confirmed.

Background

2. On 30 September 2006, a decision-maker of the Department decided that the appellant was not entitled to either rate of the care component of DLA from and including 24 October 2006. The decision was made pursuant to a renewal claim with the appellant having previously been entitled to the higher rate of the mobility component and the lowest rate of the care component of DLA for a fixed period from 24 October 2004 to 23 October 2006. There had been an even earlier award.
3. The decision dated 30 September 2006 was reconsidered on 24 November 2006 but was not changed.
4. The appeal was received in the Department on 19 December 2006. The letter of appeal refers to medical evidence submitted on 11 December 2006.
5. The appeal tribunal hearing took place on 30 April 2007.
6. The appeal tribunal disallowed the appeal, and confirmed the decision dated 30 September 2006.
7. On 5 October 2007, a statement of reasons for the appeal tribunal's decision was issued to the appellant.
8. On 26 October 2007 an application for leave to appeal to the Social Security Commissioner was received in The Appeals Service (TAS), from the appellant's representative.
9. In summary, the grounds cited by the appellant's representative were:

(i) the appeal tribunal failed to give an adequate statement of reasons for its decision that the appellant was not virtually unable to walk; and

(ii) the appeal tribunal erred in its application of regulation 12(1)(a)(ii) of the Social Security (Disability Living Allowance) Regulations 1992, citing C33/96(DLA) in support.

10. On 15 November 2007, the application for leave to appeal was considered and granted by the legally qualified panel member (LQPM) of the appeal tribunal. The point of law identified by the LQPM was stated simply as 'adequacy of reasons'.

The proceedings before the Social Security Commissioner

11. On 3 January 2008, observations were sought from Decision Making Services (DMS) and these were received on 30 January 2008.
12. DMS opposed the application. More particularly, DMS submitted that the reasons for the appeal tribunal's decision were adequate in respect of its assessment of entitlement to the higher rate of the mobility component of DLA.
13. Observations were shared with the appellant on 6 February 2008.
14. On 29 February 2008, a response was received from the appellant's representative in which the representative indicated that she continued to submit that the appeal tribunal failed to give an adequate statement of reasons for its decision.
15. On 22 September 2008, I directed an oral hearing of the appeal and requested that the parties produce skeleton arguments in respect of the same.
16. Subsequently, skeleton arguments were received from both parties – from the Department on 8 October 2008 and from the appellant's representative on 15 October 2008.
17. In the skeleton argument for the appellant a further appeal ground was cited, that the appeal tribunal erred by not making reference to an earlier award of DLA. The case of CDLA/4032/2006 was cited in support of this.
18. On 4 November 2008, an additional submission and supporting materials were received from the appellant's representative. The additional materials included:

(i) a copy of a social services policy on the allocation of home help services;

(ii) extracts from the appellant's general practitioner (GP) records;

(iii) details of a further award of DLA.

19. At the oral hearing of the appeal, the appellant was present and was represented by Mrs Carty from the Law Centre (Northern Ireland) and the Department was represented by Mr Kirk of the Decision Making Services section. Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions.

Errors of law

20. A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.
21. In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals. As set out at paragraph 30 of R(I) 2/06 these are:

"(i) making perverse or irrational findings on a matter or matters that were material to the outcome ('material matters');

(ii) failing to give reasons or any adequate reasons for findings on material matters;

(iii) failing to take into account and/or resolve conflicts of fact or opinion on material matters;

(iv) giving weight to immaterial matters;

(v) making a material misdirection of law on any material matter;

(vi) committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …

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 difference to the outcome do not matter."

The errors cited in the present appeal – the detailed arguments of the parties

22. The more detailed written submissions from the appellant's representative centred on the adequacy of the reasons for the appeal tribunal's decision. More particularly, Mrs Carty submitted that the appeal tribunal defiled to give an adequate statement of reasons for its decision that the appellant was not virtually unable to walk; and, relying on the decision of the Social Security Commissioner in CDLA/4032/2006, that the appeal tribunal failed in a duty to give adequate reasons as to why it was failing to renew an existing award of entitlement to DLA. Mrs Carty also submitted, relying on the decision of the Social Security Commissioner in C33/96(DLA), that the appeal tribunal erred in its application of the legislative provisions relating to entitlement to the mobility component of DLA. At the oral hearing of the appeal, Mrs Carty also made submissions concerning the appellant's receipt of 'home-help' services, and to the fact that, subsequent to the decision under appeal, the appellant had made a further application for entitlement to DLA, which had been successful.
23. In response, both in its written submissions, and orally before the appeal tribunal, the DMS has submitted that the statement of reasons was adequate to explain why the appellant did not satisfy the conditions of entitlement to either component of DLA.

What were the reasons for the appeal tribunal's decision?

24. The statement of reasons for the appeal tribunal's decision set out the following:

'The Tribunal considered all the oral and written evidence and submissions in order to decide entitlement to DLA at the date of decision 30 September 2006, on a renewal claim made on 24 October 2006. The Claimant had previously been awarded the high rate mobility component and the low rate care component from 24 October 2004-23 October 2006. The request for reasons was made on 2 May 2007 and the file and request received by the Chairman on 2 August 2007.

DISABILITY

The Claimant had fibromyalgia diagnosed by Dr H….. (Belfast City Hospital) in November 2001. She was referred to Dr S…., Windsor House who found that all tests were normal. Therapy in 2005 was helpful at the time, but chronic fatigue continued. Investigations by a neurologist in January 2007 found no abnormality; she took amitriptyline and tylex, a co-codomol once or twice a day for pain relief (account to neurologist in January 2007) or at most 3 times a day (account at hearing). Her General Practitioner indicated that her condition had relapse in 18 September 2006, which was consistent with the record in the notes that she was off work with ill-health from 21 August 2006. Her own account was of no change in the condition in 5 years (Tab …). The Tribunal did not need to resolve this issue, it accepted she had fibromyalgia at the date of decision and judged the effect of this on the basis of the evidence.

The Claimant attended with ear noise and dizziness in March 2006. ENT investigations found it was not vertigo and the Tribunal concluded that this was not a disabling condition.

MOBILITY

The Tribunal relied on the primary medical evidence, and the General Practitioner's factual report of 20 September 2006 as providing a reliable statement of mobility. She could walk 100 metres slowly with a normal gait and no aids before stopping due to fatigue. The Claimant's account was that this tired her so much it could not be done with any regularly. The Tribunal found this account exaggerated. It was inconsistent with her account of her daily life. Looked at as a whole her oral and written account showed that she could do anything she wanted to do including driving, studying, walking her dogs, attending social events. The Tribunal did not accept as credible an account of episodic intense activity interspersed with periods of exhaustion.

It accepted fibromyalgia reduced mobility but not to the extent claimed. It read the General Practitioner's account of exhaustion after walking for 10 minutes as a reflection of her own account. It was inconsistent with the impact of fibromyalgia generally. There was no account of such fatigue in the General Practitioner's records. Dr H…. placed her on the fibromyalgia rather than the chronic fatigue end of the spectrum. The level of pain she claimed would have been met with a much more sustained medical response. The Tribunal found her account self-serving and exaggerated. It noted the involvement of an occupational therapist and use of a rolator indoors. It found that the therapist responded to symptoms as prescribed and did not verify these.

Her account of not needing the rolator outdoors was not credible. The letter of 4 December 2006 from K.. M….., Social Worker was descriptive and did not offset this. In sum, the Tribunal accepted a degree of fatigue and discomfort but found the Claimant could walk at least 100 yards regularly without discomfort, slowly, with a normal gait and no support.

There were no grounds for awarding a low rate mobility component. The Claimant did not reasonably require guidance and supervision in order to go out unaided. She was mentally competent, able to drive and study. She presented as capable and confident. The General Practitioner's factual report recorded no falls, no aids, and no need for attention in unfamiliar surroundings. The letter of 1 December 2006 did not modify this. She herself had made no case for the low rate mobility component and there was no other evidence that she required guidance or supervision in order to walk unfamiliar routes.

CARE

The Claimant's case was that activities of self care so tired her and caused her so much pain, that help was required. The Tribunal found that she suffered tiredness and discomfort but it was not disabling to the extent claimed. It was inconsistent for instance to be able to drive and use a computer but not peel an apple. Her account of the limited nature of her activities was not accepted as consistent either with fibromyalgia, her medication, or the variety of activities which she undertook, some such as studying which were optional. The Tribunal preferred the General Practitioner's factual report which indicated she could do the majority of activities to the letter of 1 December 2006. There was ample room to explain the Claimant's difficulties on the factual report, it was completed fully and was consistent with the medical account. It was Dr R……'s own assessment, whereas the letter of 1 December 2006 reflects the Claimant's account. In any event it confirmed that the Claimant manages her own self care relatively well, although it does tire her. The Tribunal accepted this. Doctor rejected the account of difficulties caused by washing her hair as not credible in light of the other activities. The Tribunal found the Claimant could attend to all her bodily functions with minimal discomfort. She did not reasonably require help for a significant portion of the day. Help with shopping and housework was outside the scope DLA.

MAIN MEAL

The Tribunal noted that Dr R….. had consistently confirmed difficulties lifting saucepans. It found however that there was no reason why the Claimant could not prepare cook and serve a meal for one person. There was no evidence of impaired hand or arm function to a degree making this impossible. She could drive, use a computer, hold a book and write at length about her condition. She had the dexterity and strength to chop and cook a meal and lift a saucepan holding the ingredients for a meal for one. Her account of poor concentration was inconsistent with the way in which she conducted the claim and appeal, and with her ongoing studies. It was rejected.

There was no case for supervision and none for night care needs.

In conclusion the Tribunal rejected the Claimant's account of extreme pain and fatigue as inconsistent with her diagnosis and treatment, lifestyle and the General Practitioner's factual report. The provision of aids and home help support and her own account of pain and fatigue did not outweigh this.'

Were the reasons adequate to explain the appeal tribunal's decision?

25. In my view, it is clear that the appeal tribunal undertook a rigorous and rational assessment of all of the evidence before it. Further, it is equally clear that, read as a whole, the statement of reasons for the appeal tribunal's decision provides a detailed explanation of the basis on which the appeal tribunal arrived at its conclusions on the issues before it.
26. In Quinn v Department for Social Development ([2004] NICA 22), the Court of Appeal emphasised that assessment of evidence and fact-finding role is one for the appeal tribunal. At paragraph 29, the Court stated:

'It is clear that the Tribunal considered Dr Manley's report since they refer to it in their findings and describe it as being less than helpful. The challenge to the Tribunal's attitude to the report cannot proceed on the basis that they ignored it; rather it must be either that they misconstrued it or they failed to give it sufficient weight. As to the latter of these two possibilities it is of course to be remembered that a view of the facts reached by a tribunal can only be interfered with by the Court of Appeal in limited and well-defined circumstances. Carswell LCJ described those circumstances in Chief Constable of the RUC v Sergeant A [2000] NI 261 at 273f as follows: -

"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 Fraser [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] AC 14, per Viscount Simonds at 29 and Lord Radcliffe at 36."

27. At paragraph 4 of R(DLA) 3/04, Mrs Commissioner Brown had made similar remarks:

'I should state at the outset that the weight to be given to any evidence is completely a matter for the Tribunal. The weight to be given to an item of evidence is a matter of fact. That means that I can disturb it only if that conclusion as to weight is one which no reasonable Tribunal could have reached. Having examined Dr M...'s report I do not consider that the Tribunal's conclusions as to the weight to be given to it are such as no reasonable Tribunal could have reached.'

The provision of 'home-help' services

28. I cannot agree with the submissions made by Mrs Carty that the statement of reasons failed to address the fact that the appellant had been in receipt of 'home-help' services. In the record of proceedings, it is noted that the appeal tribunal had the following before it -

(i) the appeal papers;

(ii) GP notes and records;

(iii) form AT16;

(iv) a letter from K… M….. dated 23 April 2007;

(v) a letter from Dr J…. R…… dated 22 November 2006.

The record of proceedings also includes an entry which reads 'Referred for social services in June – found help in December for wash hair stand [sic].'

29. In the appeal papers which were before the appeal tribunal, at Tab No 6, is an undated letter from the appellant, which is stamped as having been received in the Department on 4 December 2006. In this letter, the appellant states that she has '… recently accepted a home help from Social Services …'
30. Further the letter from K… M……, dated 23 April 2007, and which was before the appeal tribunal, was written in Ms M….'s capacity as a social worker. The letter refers to the interventions which had been made on behalf of the appellant, including assessment by Occupational Therapy and the supply of aids.
31. More significantly, and as was noted above, the statement of reasons includes the statement 'The provision of aids and home help support and her own account of pain and fatigue did not outweigh this.' By 'this', the appeal tribunal meant its rejection of the appellant's evidence concerning extreme pain and fatigue. That conclusion is reinforced by its earlier parallel conclusion that the appellant's evidence was exaggerated, and self-serving.
32. Accordingly, it is not arguable that the appeal tribunal did not either address the evidence concerning the provision of 'home-help' services, nor assess that evidence in connection with the appeal. The appeal tribunal did address that evidence and decided that it did not outweigh its assessment of the appellant's own evidence. In line with the principles set out in Quinn v Department for Social Development, and as noted above, the appeal tribunal, following its assessment of the evidence, was entitled to reach its own conclusions on the issues before it.
33. The appeal tribunal gave a sufficient explanation of its assessment of the evidence relating to the provision of 'home-help' services, explaining why it took the particular view of the evidence which it did. Any conflict in the evidence before the appeal tribunal has been clearly resolved and explained.

Entitlement to the mobility component of DLA

34. I cannot find any error in relation to the appeal tribunal's conclusions in relation to the appellant's entitlement to DLA, in general, and the mobility component of that benefit, in particular.
35. The appeal tribunal made sufficient findings of fact, relevant to its decision on entitlement to the mobility component, all of which are wholly sustainable on the evidence, and all of which are supported by relevant evidence. None of the appeal tribunal's findings are irrational, perverse or immaterial. Further, and contrary to the submissions made by Mrs Carty, the appeal tribunal's application of the legal rules and principles relevant to the mobility component of DLA, was wholly accurate.
36. In a number of decisions, the Social Security Commissioners have given guidance to appeal tribunals on the application of the legislative provisions relating to the higher rate of the mobility component of DLA. Those provisions are Section 73 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, and regulation 12 of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992, all as amended.
37. In C44/97, the Chief Commissioner for Northern Ireland thought that considerable assistance could be obtained from the Great Britain decision in CSDLA/246/96. In that decision Mr Commissioner May stated:

'… I note what was said by the Commissioner in CM/47/86. He said …'What constitutes an inability to walk to any appreciable extent is a matter of fact and is for the tribunal to determine. They must apply their own judgement, and so long as their decision is not perverse, it is not open to the Commissioner to interfere. In the present case the tribunal decided that, as the claimant could walk without discomfort … for 50 yards, he had taken himself out of the category of one who was unable or virtually unable to walk. I consider that the tribunal were entitled to reach this conclusion.'

In this case I am of the view that the tribunal applied their own judgment to the question as to whether the claimant was unable to walk to an appreciable extent or practically unable to walk which is the long established and accepted explanation of the phrase 'virtually unable to walk' by the Commissioner in CM/47/86. It is quite apparent to me from reading the reasons given for their decision that they made their decision in the context of the definition of virtually unable to walk set out in [the regulation] as explained by the Commissioner. It is abundantly clear to me that they appreciated the test. They set out their findings in fact and gave their reasons. Their decision can in no way be described as perverse and I consider that it is not open to me to interfere. The factual foundation presented by the tribunal in my view is sufficient to enable them to reach the decision which they did. Accordingly I consider that there is no merit in the claimant's grounds of appeal in relation to the higher rate of the mobility component.'

38. The Chief Commissioner in C44/97, after citing these passages with approval, found, that in the case before him, the tribunal also appreciated the context of the relevant regulation and, in that context, the finding that the claimant was able to walk a reasonable distance with a reasonable gait at a reasonable speed was a proper finding and one that was perfectly acceptable on the evidence before the tribunal.
39. The Chief Commissioner also thought that helpful guidance could be obtained from the comments of the former Chief Commissioner for Northern Ireland in C3/87(MOB). The Chief Commissioner had stated:

'In my view the decision of the Court of Appeal in [Murray] should not be interpreted as requiring the tribunal to provide answers to the four questions raised by the Regulation in terms of a distance, a speed, a time and a description of the … manner of walking. Undoubtedly, those questions must be specifically addressed and answers given; but to require the Tribunal to attempt to quantify distances, speeds etc. would be to impose an impossible burden on them. It is, moreover, difficult to see what purpose it would serve to provide such answers; as it would remain for the tribunal to decide if … was unable or virtually unable to walk. If there are to be limits of distance, speed etc. marking the level below which claimants qualify for mobility allowance, it is for Parliament or the Rule-making authority to set them; not the … tribunal'

40. Applying those comments to the present case, the Chief Commissioner in C44/97 concluded that:

'… it is not necessary for tribunal to attempt to quantify distances, speeds, manner of gait or level of discomfort. The tribunal has directed its mind to the statutory test and has come to a conclusion and a decision that could not be described as perverse and in the circumstances it is not open to me to interfere with it.'

41. In C16/98, reference was also made to the decision of the former Northern Ireland Chief Commissioner in C3/87(MOB) and to the particular passage quoted above. The Commissioner in C16/98 approved of these comments and went on to say:

'With regard to the comments on the ability to walk 50 yards, this is the distance which the claimant himself had stated he could walk without severe discomfort and the tribunal quite obviously considered that this distance would not fall within the level of virtually unable to walk. I can find no error in that respect.'

42. In C67/98, the Commissioner had the following comments to make:

'I can find no error in the Tribunal's decision with relation to the high rate of the mobility component … the Tribunal had to use its own judgement as to what the true factual situation was. This it did and I consider that its findings in this matter were quite supportable by the evidence and the assessment of the evidence quite clear. I therefore consider there was sufficient evidence to back the Tribunal's findings in this matter. The Tribunal has clearly stated that it found that [the appellant] exaggerated his symptoms and that it believed that there were no physical reasons why he should not be able to walk distances of at least 75 to 100 yards at a slow pace and gait without pain. I can find no fault in its reasoning in this respect.'

43. In C20/05-06(DLA), Mrs Commissioner Brown stated the following, at paragraph 16:

'In the present case, as regards the mobility component, the instant tribunal's finding was of a walking ability of at least [my emphasis] 100 yards before the onset of severe discomfort. As I indicated above 100 yards is a walking distance (assuming reasonable factors of speed, manner and time of walking) which would entitle a tribunal to conclude that a claimant was not virtually unable to walk. It is unlikely that this amount of walking ability could reasonably be considered as virtual inability to walk though it must be remembered that Parliament has not seen fit to prescribe actual distances, times etc which can or cannot qualify as being virtually unable to walk. However (R(M)1/91) the baseline is total inability to walk which is extended to take in people who can technically walk but only to an insignificant extent. Therefore, it is only very, very severe walking restrictions which will qualify as virtual inability to walk. I do not think that the above-mentioned walking ability could be so considered and it is unlikely that a tribunal would consider such walking ability to be virtual inability to walk.'

44. In both written submissions and oral argument, Mrs Carty submitted that the statement of reasons is inadequate to explain to the appellant why she was not entitled to the higher rate of the mobility component. Further, Mrs Carty referred to aspects of the medical evidence relied on by the appeal tribunal, in support of its conclusions on this issue, more particularly a medical report from the appellant's GP. The latter was a factual report, dated 20 September 2006, and which was attached to the original appeal submission as Tab No 2. She submitted that the appeal tribunal was selective in its consideration of this evidence and that it should have been seen in the context of all of the medical evidence which was before the appeal tribunal, including other evidence from the appellant's GP.
45. In summary, the appeal tribunal accepted that the appellant had a degree of fatigue and discomfort due to her problems with fibromyalgia, but found she could walk at least 100 yards regularly without discomfort, slowly, with a normal gait and no support. On that basis, the appeal tribunal concluded that the appellant was not virtually unable to walk, and, accordingly, not entitled to the higher rate of the mobility component of DLA.
46. In my view, the appeal tribunal's made sufficient findings of fact, relevant to its decision on entitlement to the higher rate of the mobility component, all of which are wholly sustainable on the evidence, and all of which are supported by relevant evidence. None of the appeal tribunal's findings are irrational, perverse or immaterial.
47. I am of the view that the inclusion of the statement that the appeal tribunal found the GP's account to be 'inconsistent with the impact of fibromyalgia generally' to be somewhat far-reaching. Nonetheless, the appeal tribunal did accept that the appellant's fibromyalgia caused a reduction in her mobility, but not to the extent claimed. Reading the statement of reasons as a whole, it is clear that the appeal tribunal placed a greater emphasis on its assessment of the appellant's own evidence, and found that that evidence and account to be, variously, inconsistent, not credible, exaggerated and self-serving.
48. In C14/02-03(DLA), Commissioner Brown, at paragraph 11, stated:

' … there is no universal rule that a Tribunal must always explain its assessment of credibility. It will usually be enough for a Tribunal to say that it does not believe a witness.'

49. Additionally, in R3/01(IB)(T), a Tribunal of Commissioners, at paragraph 22 repeated what the duty is:

'… we do not consider that there is any universal obligation on a Tribunal to explain its assessment of credibility. We disagree with CSIB/459/97 in that respect. There may of course be occasions when this is necessary but it is not an absolute rule that this must always be done. If a Tribunal makes clear that it does not believe a claimant's evidence or that it considers him to be exaggerating this will usually be sufficient. The Tribunal is not required to give reasons for its reasons. There may be situations when a further explanation will be required but the only standard is that the reasons should explain the decision. It will, however, normally be a sufficient explanation for rejecting an item of evidence, including evidence of a party to an appeal, to say that the witness is not believed or is exaggerating.'

50. This reasoning was confirmed in CIS/4022/2007. After analysing a series of authorities on the issue of the assessment of credibility, including R3/01(IB)(T), the Deputy Commissioner (as he then was) summarised, at paragraph 52, as follows:

'In my assessment the fundamental principles to be derived from these cases and to be applied by tribunals where credibility is in issue may be summarised as follows: (1) there is no formal requirement that a claimant's evidence be corroborated – but, although it is not a prerequisite, corroborative evidence may well reinforce the claimant's evidence; (2) equally, there is no obligation on a tribunal simply to accept a claimant's evidence as credible; (3) the decision on credibility is a decision for the tribunal in the exercise of its judgment, weighing and taking into account all relevant considerations (e.g. the person's reliability, the internal consistency of their account, its consistency with other evidence, its inherent plausibility, etc, whilst bearing in mind that the bare-faced liar may appear wholly consistent and the truthful witness's account may have gaps and discrepancies, not least due to forgetfulness or mental health problems); (4) subject to the requirements of natural justice, there is no obligation on a tribunal to put a finding as to credibility to a party for comment before reaching a decision; (5) having arrived at its decision, there is no universal obligation on tribunals to explain assessments of credibility in every instance; (6) there is, however, an obligation on a tribunal to give adequate reasons for its decision, which may, depending on the circumstances, include a brief explanation as to why a particular piece of evidence has not been accepted. As the Northern Ireland Tribunal of Commissioners explained in R 3/01(IB)(T), ultimately "the only rule is that the reasons for the decision must make the decision comprehensible to a reasonable person reading it".'

51. In respect of why the appeal tribunal did reject the appellant's claim to entitlement to the higher rate of the mobility component, the statement of reasons does make that decision comprehensible to a reasonable person reading it.
52. The appeal tribunal's conclusions with respect to the higher rate of the mobility component, involved a wholly accurate application of the relevant legal rules and principles, as set out above.
53. In an early written submission, Mrs Carty had relied on the decision of Mr Commissioner McNally, in C33/96(DLA), and, more particularly, paragraph 6 of that decision, where the Commissioner noted:

'The fact that a person could walk a reasonable distance at some time of the day does not necessarily mean that that person does not satisfy the conditions if he is virtually unable to walk on other days or at other times of the day.'

54. With respect to the Commissioner in that case, his conclusions have to be considered in the context of the further analysis of other opinion on the issue of mobility during periods of rest.
55. In R(M) 1/98, the Commissioner in Great Britain stated, at paragraph 6:

'The fact that a person is resting does not mean that he cannot walk or that he is virtually unable to walk. There was no suggestion that during the rest period he was unable or virtually unable to walk. The resting was directed to the restoration of the claimant's condition generally i.e. from all the exertion which he had previously undertaken. A sense of proportion has to be adopted in cases of this sort. Walking a short distance e.g. 100 yards is not a very onerous undertaking, and the fact that a person suffering from ME is resting to recover from his previous exertions does not imply that he is unable to walk or virtually unable to walk during such a period of rest.'

56. In any event, the appeal tribunal found that the appellant's account that walking left her exhausted, and tired her so much that she could not walk with any regularity to be exaggerated and inconsistent with her account of her daily life. The appeal tribunal's assessment of the appellant's own evidence was not outweighed by the other available evidence.

The previous awards of entitlement to DLA

57. In a late written submission, and at the oral hearing of the appeal, Mrs Carty noted the Departmental decision to disallow entitlement to DLA had been on the basis of a renewal claim to that benefit. Further, the appellant had been in receipt of DLA under two previous awards. Relying on the decision of a Commissioner in Great Britain in CDLA/4032/2006, Mrs Carty submitted that the appeal tribunal, in its statement of reasons should have referred to the fact that the claim was a renewal claim, and should have given an explanation of why the renewal claim was disallowed.
58. In CDLA/4032/2006, the Commissioner stated, at paragraph 11:

'It is clear that the tribunal was aware that there had been at least one decision before the 2004 decision and there was material to show that the 2004 decision involved an increase in the award. It followed inevitably that there was further evidence held by the Department of Work and Pensions on the basis of which the earlier award or (as in fact was the case) awards had been made. The examining doctor on whose evidence the tribunal relied said that the claimant's conditions were longstanding and unlikely to improve. In the absence of knowledge on the part of the tribunal what that further, earlier evidence was, it was practically speaking impossible for the tribunal to explain to the claimant why an award which she had had to some degree (the precise nature of which was unknown to the tribunal) for more than five years was being taken away. To the extent that the tribunal attempted that task, it did so only in relation to the 2004 award, so its reasons were necessarily inadequate. The tribunal therefore erred in law.'

59. Once again, there is additional authority on the extent of the duty of an appeal tribunal, when considering an appeal following a decision not to renew an entitlement to a social security benefit.
60. In R 3/04(DLA) (Quinn v Department for Social Development [2004] NICA22), the claimant was in receipt of the highest rate of the care component and the higher rate of the mobility component of DLA for a fixed period. Part of the evidence in respect of that award was the report of an examination by an examining medical practitioner (EMP). A renewal claim was disallowed by the Department and that decision was upheld by an appeal tribunal. In turn, the decision of the appeal tribunal was upheld by the Social Security Commissioner.
61. Before the Court of Appeal, it was submitted that the appeal tribunal had failed to give any consideration to the first EMP report. Since the appellant had been awarded DLA, on the first claim, and the medical evidence suggested that there had been no improvement in her condition the appeal tribunal ought to have taken account of the EMP report in relation to the first application. The argument continued that, in turn, the Social Security Commissioner should have recognised that the appeal tribunal had failed to have regard to the first report and ought to have reversed the appeal tribunal's decision on that account.
62. The Court of Appeal dealt with the latter argument quickly holding that as the issue concerning the first EMP report had not been argued before the Social Security Commissioner, it would be quite unrealistic to expect the Commissioner to disinter an argument from relevant obscurity. More obviously, however, the Court of Appeal held, at paragraph 35, that:

'The ultimate disposal of this argument, however, is provided by the consideration that the first report could not have made any difference to the outcome of the appeal to the Tribunal. The second request for DLA was a renewal application. Each application must be treated anew. The reason for this is clear. The claimant for DLA must establish a level of disability at the time the application is made and for a period of six months after the benefit becomes payable. It would avail the appellant nothing to show that in November 1997 she was considered to be sufficiently disabled to be entitled to the benefit. She must show a contemporaneous disability of such severity that she was entitled to the benefit at the time of application and beyond.'

63. In relation to the appeal tribunal's requirement to consider the first EMP report, the Court of Appeal, had the following to say, at paragraphs 39-42:

'[39] The final argument on this subject was that the Tribunal had failed to explain why it had concluded that the appellant no longer qualified for the benefit if her condition had not improved from that set out in the first EMP's report; or if it concluded that the appellant's condition had improved, on what basis it made that finding.

[40] The requirement to give reasons where a Tribunal decides that a claimant for benefit is no longer entitled to a benefit of which he or she had been in receipt previously was considered by the Social Security Commissioner in R(M)1-96 CM/20/1994. In that case the claimant had lost part of his right leg in an accident and had arthritis in his left hip and spine. His renewal claim for mobility allowance in 1992 was rejected on the ground that he was neither unable, nor virtually unable, to walk. The claimant contended that his walking ability had in fact got worse since he was originally awarded mobility allowance in 1991. A disability appeal tribunal confirmed the rejection of his claim. The claimant appealed to a Social Security Commissioner. It was held that the fact of a previous award does not raise any presumption in the claimant's favour or result in the need for consistency having to be treated as a separate issue on a renewal claim. However, the requirement for a tribunal to give reasons for its decision means that it is necessary for a tribunal to explain why it is not renewing a previous award unless this is obvious from its findings.

[41] We agree with this reasoning and intend to apply it to the present case. Here the Tribunal has not explained why it is not following the course previously taken in making an award of DLA but, in our view, there was no need to do so. The reason that the Tribunal refused DLA was that it had concluded that the appellant did not suffer from the level of disability that had to be present before the benefit was payable. As the Court of Appeal said in Evans, Kitchen and Others v. Secretary of State, [now reported as R(I)5/94] a previous award carries no entitlement to preferential treatment on a renewal claim for a continuing condition. In the R(M)1-96 case the Social Security Commissioner put the point in this way: -

"… on a renewal claim, which is a fresh claim for benefit for a period not covered by any previous award, there can be no question of the tribunal being bound to follow any previous decision awarding benefit for an earlier period, nor, in determining whether the conditions for benefit are satisfied on the facts as they find them to be at the date relevant for their decision, is any different standard to be applied according to whether benefit has or has not been awarded before: ex p. Viscusi, supra; CM/205/1988 components of the same benefit dealt with by the same tribunal paragraph 13 (not doubted on this point in the later cases)." (paragraph 13.4)

[42] The Tribunal said that it had concluded that the appellant had full function of her upper arms and lower limbs and that she could attend to her bodily functions unaided and unsupervised day and night. It also said that she could cook a main meal for herself and has no mobility needs. This statement was sufficient to convey to the appellant why she was not going to receive the benefit. Put simply, the Tribunal had concluded that she had exaggerated her condition and that she was not truly disabled.'

64. Applying those principles to the present case, it was clear that the appeal tribunal was aware that the appellant had previously been in receipt of DLA. The statement of reasons for the appeal tribunal's decision begins with a confirmation that the decision under appeal was one made on a renewal claim and that the appellant had previously been awarded an entitlement to DLA. Thereafter, and as was noted above, the appeal tribunal's duty was to outline and explain to the appellant why she did not satisfy the conditions of entitlement to either component of DLA. For all of the reasons outlined above, I have concluded that the statement of reasons was sufficient to 'convey to the appellant why she was not going to receive the benefit'. It was obvious from the appeal tribunal's findings why the previous award was not being renewed.

Entitlement to the other rates or components of DLA

65. I am satisfied that no error of law can be identified in how the appeal tribunal arrived at its conclusions in relation to entitlement to the lower rate of the mobility component and the care component of DLA.

The record of proceedings

66. In the original application for leave to appeal to the Social Security Commissioner, Mrs Carty referred to a number of factual inaccuracies which she submitted were contained within the record of proceedings, which, she submitted, caused great concern to the appellant. At the oral hearing of the appeal, Mrs Carty conceded that factual inaccuracies did not vitiate the substance of the appeal tribunal's decision.
67. Regulation 55(1) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, provides that:

'A record of the proceedings at an oral hearing, which is sufficient to indicate the evidence taken, shall be made by the chairman or, in the case of an appeal tribunal which has only one member, by that member, in such medium as he may determine.'

68. In C48/99-00(DLA), the Chief Commissioner stated, at paragraph 16:

'… there is no obligation to make a verbatim record of all that does occur at a Tribunal hearing although the record should summarize all relevant evidence and also note any written evidence and submissions that are received by the Tribunal during the hearing. It is difficult for a Commissioner, who has only jurisdiction to decide appeals on points of law, to rule on whether something occurred or did not occur at a Tribunal hearing. In light of my findings on ground (iv) I do not consider it necessary or constructive to pursue this issue any further save to emphasize that a Tribunal has an obligation to summarize all relevant evidence and also to note that any particular written evidence or submissions were received by the Tribunal during the hearing.'

69. In R(DLA) 3/08, a Tribunal of Commissioners in Great Britain considered the extent of the requirements in connection with the making of a record of proceedings. In summary, the tribunal determined that:

(i) a tribunal's record of proceedings should be a record of what happened and in addition to indicating the evidence taken, should include a record of any procedural application and its result (paragraph 6);

(ii) it is good practice to include a brief note of any submissions made (paragraph 10);

(iii) the duty to make a record of proceedings does not extend to making a note of the tribunal's deliberations (paragraph 26);

(iv) the record of proceedings must be intelligible or capable of being made intelligible to those to whom it is issued (paragraphs 13 and 14);

(v) a failure to comply with regulation 55 will not necessarily render the tribunal's decision erroneous in point of law; the failure to comply must be material to the decision in the sense that it has resulted in a real possibility of unfairness or injustice. In so far as they suggest otherwise, CDLA/4110/1997, CIB/3013/1997 and CA/3479/2000 should no longer be followed (paragraph 27).

70. It has already been conceded by Mrs Carty that the factual inaccuracies in the record of proceedings in the present case do not render the appeal tribunal's decision to be in error of law.
71. The usual manner in which a record of proceedings is made is that it is recorded, in writing, by the LQPM of the appeal tribunal, on a form especially created for that purpose. The task of completion of a record of proceedings, as part of the general conduct and procedure for the oral hearing, is not an easy one for the LQPM, particularly where the oral hearing is lengthy; where there is considerable oral evidence to be taken; where the questioning of the appellant and any other witnesses is undertaken by other members of the appeal tribunal; where detailed submissions are made on behalf of the appellant by a representative; and where there is cross-referencing to other documentation contained in the appeal papers or provided as part of the appeal hearing. The recording difficulties are exacerbated where the LQPM is also asking relevant questions of a witness, or where the LQPM is the sole member of the appeal tribunal.
72. Nonetheless, the LQPM should endeavour to ensure that the record in writing is as accurate as possible, in line with the principles outlined in C48/99-00(DLA), and R(DLA) 3/08. As far as possible, the process should not be rushed, and clarification of particular evidence, in relation to medical treatments and medication regimes, for example, should be sought. Fundamental errors, such as the inaccurate recording of marital status, should be avoided. The record should contain details of submissions made, applications sought, and their outcome, and other interventions, both planned and untoward. The latter could include, for example, episodes of distress on the part of the appellant or other witness, or brief adjournments.
73. In this jurisdiction, where a request for a copy of the record of proceedings is made, under regulation 55(4) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, the usual procedure is that the hand-written copy, as recorded on the day of the appeal tribunal hearing, is typed up and checked for inaccuracies by the LQPM. The provision of a typed-up copy of the record of proceedings is of considerable advantage to the party to the proceedings seeking the same, and avoids problems associated with legibility of hand-writing. It is possible that some factual inaccuracies are the result of the misinterpretation of hand-writing during the typing-up process. Once again, LQPMs should endeavour to ensure that the final version which is to be forwarded to a party to the proceedings is accurate and in conformity with what was actually recorded on the day.

Disposal

74. The decision of the appeal tribunal dated 30 April 2007 is not in error of law. Accordingly, the appeal to the Social Security Commissioner does not succeed. The decision of the appeal tribunal to the effect that the appellant is not entitled to either component of DLA, from and including 24 October 2006, is confirmed.

(signed): Kenneth Mullan

Commissioner

2 March 2009