Northern Ireland - Social Security and Child Support Commissioners' Decisions

 


[2009] NISSCSC C17_09_10(DLA) (16 June 2009)

Decision No: C17/09-10(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 23 June 2008

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. Having considered the circumstances of the case, I am satisfied that the application can properly be determined without a hearing.
2. I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.
3. Both parties to the proceedings before the Social Security Commissioner have expressed the view that the decision of the appeal tribunal, which is the subject of this appeal, is in error of law.
4. I am in agreement with the Decision Making Services unit (DMS) of the Department that the decision of the appeal tribunal was in error of law for the reasons identified by DMS, in its submission dated 13 May 2009.
5. Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.
6. For further reasons set out below, I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given. This is because there may be further findings of fact which require to be made. Further I do not consider it expedient to make such findings, at this stage of the proceedings. Accordingly, I refer the case to a differently constituted appeal tribunal for re- determination.
7. It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of his entitlement to disability living allowance (DLA) remains to be determined by another appeal tribunal. The newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal.

Background

8. On 11 October 2007, a decision-maker of the Department decided that the applicant was entitled to the higher rate of the mobility component of DLA from and including 14 December 2007.
9. The decision dated 11 October 2007 was reconsidered on 30 October 2007 but was not changed.
10. The appeal was received in the Department on 8 January 2008.
11. The appeal tribunal hearing took place on 23 June 2008.
12. The appeal tribunal allowed the appeal with respect to the care component of DLA making an award of entitlement to the lowest rate of the care component for a fixed period. The appeal tribunal disallowed the appeal with respect to the mobility component reducing entitlement to the lower rate for the same fixed period.
13. On 4 November 2008 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service. The grounds cited in the application were that:

(i) the appeal tribunal did not have sufficient evidence to support its decision;

(ii) the appeal tribunal did not provide adequate reasons for its decision;

(iii) the appeal tribunal displayed an unfair and prejudiced attitude in its questioning and reception of information received.

14. On 13 November 2008, the application for leave to appeal was refused by the legally qualified panel member (LQPM).

Proceedings before the Social Security Commissioner

15. On 9 December 2008, a further application for leave to appeal to the Social Security Commissioner was received in the Office of the Social Security Commissioners and Child Support Commissioners (OSSC). The grounds cited in the application were similar to those cited in the application to the LQPM.
16. On 30 January 2009 observations were sought from DMS and these were received on 27 February 2009. DMS opposed the application on all of the grounds cited by the applicant's representative.
17. Observations were shared with the applicant, and his representative, on 4 March 2009.
18. On 18 March 2009, further correspondence in reply to the DMS observations was received in OSSC, from the applicant's representative.
19. On 26 March 2009, the further correspondence was shared with DMS.
20. On 2 April 2009 further submissions in reply were received from DMS.
21. On 7 April 2009 these further observations were shared with the applicant and his representative.
22. On 28 April 2009, I directed that DMS submit further observations on t he following issue:

'The decision under appeal was a decision which had made an award of entitlement to the higher rate of the mobility component of disability living allowance for an indefinite period. In disallowing the appeal in respect of the mobility component the appeal tribunal made an award of entitlement to the lower rate of the mobility component for a fixed three-year period. In allowing the appeal in respect of the care component the appeal tribunal made an award of entitlement to the lowest rate of the care component, again for a fixed three-year period.

To what extent is the statement of reasons for the appeal tribunal's decision adequate to explain why the appeal tribunal placed a fixed period limitation on both awards?'

23. On 13 May 2009, further observations were received in reply to my direction of 28 April 2009. In these further observations, DMS indicated:

'I have examined the reasons for decision and nowhere is there any indication as to why the tribunal decided that limited awards of the lowest rate care component and lower rate mobility component were appropriate. Accordingly, and resiling from the position I took in my observations made on 27 February 2009, I submit that the minimal requirements set out in paragraph 5 of reported decision R1/95 (DLA) are not met and the decision of the appeal tribunal is erroneous in law.'

24. 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.

Errors of law

25. 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 error of law in the present case

26. Section 71(1) to (3) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, provides that:

'71.—(1) Disability living allowance shall consist of a care component and a mobility component.

(2) A person's entitlement to a disability living allowance may be an entitlement to either component or to both of them.

(3) A person may be awarded either component for a fixed period or for an indefinite period, but if his award of a disability living allowance consists of both components, he may not be awarded the components for different fixed periods.'

27. Accordingly, an adjudicating authority has the power to make an award of either component for a fixed period or for an indefinite period.
28. In the instant case, the decision-maker of the Department had decided, on 11 October 2007, that the applicant was entitled to the higher rate of the mobility component of DLA from and including 14 December 2007. For the purposes, therefore, of section 72(2) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, the decision-maker had decided that the applicant should have an entitlement to one component only. Further, for the purposes of section 72(2) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, the decision-maker had decided that the applicant should have an entitlement to one component for an indefinite period.
29. A Tribunal of Commissioners in Great Britain, in R(IB) 2/04, undertook an extensive analysis of the legislative provisions relating to decision- making and appeals. In Great Britain these provisions are the Social Security Act 1998 and the Social Security and Child Support (Decisions and Appeals) Regulations 1999, both as amended. In Northern Ireland these provisions are the Social Security (Northern Ireland) Order 1998 and the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, both as amended. To all intents and purposes, the legislative provisions with respect to decision- making and appeals in Great Britain and Northern Ireland are identical.
30. The guidance given by the Tribunal of Commissioners in R(IB)2/04 reminds an appeal tribunal that it must identify the decision under appeal, and decide whether that decision is correct. Does the appeal tribunal have the power to make a decision which is less favourable to the appellant than the decision under appeal? The answer to that question is 'yes'. In C48/03-04(DLA), Commissioner Brown stated, at paragraphs 22 to 25:

'22. … The decision in CIB/4751/2002 and others is authority for the proposition that a Tribunal is entitled to supersede the original decision on a ground which leads to a decision less favourable to the claimant than that original decision. As the Tribunal of Commissioners states at paragraph 55: -

"In our judgment, if an appeal tribunal decides that the Secretary of State's decision under Section 9 or Section 10 changing or refusing to change a previous decision was wrong then (subject to the restriction in Section 12(8)(b), if relevant) it has jurisdiction to make the revision or supersession decision which it considers the Secretary of State ought to have made, even if that means making a decision under Section 9 when the Secretary of State acted only under Section 10, and vice versa."

23. Again at paragraphs 83 and 84 the Tribunal of Commissioners states:

"83. We have formulated this issue as follows. When a claimant appeals against a decision refusing to accede to his application for supersession (or acceding to the application but not making a decision as favourable as the claimant wished), does an appeal tribunal have power to supersede the original decision on a ground which leads to a less favourable award than the superseded award?

84. This issue in practice arises primarily in r elation to disability living allowance."

24. At paragraph 89 the Tribunal of Commissioners states: -

"First, there is in our judgment no possible warrant for reading the words "need not" in Section 12(8)(a) as "shall not". "Need not" is clearly permissive, whereas "shall not" would have been mandatory. If Parliament had meant "shall not", it could easily have said so."

At paragraph 90 the Tribunal of Commissioners states: -

"Second, issues not raised by an appeal are in their nature quite likely to be issues as to whether the tribunal should make an award less favourable to the claimant than did the Secretary of State. In providing in Section 12(8)(a) that a tribunal need not consider issues not raised by the appeal (and therefore necessarily that it had the power to do so), Parliament was implicitly providing that tribunals could consider whether to make a decision less favourable to the claimant than did the Secretary of State. As pointed out in Paragraph 32 above, appeal tribunals are part of the adjudication system designed to ensure that c claimants receive neither more nor less than the amount of social security benefits to which they are properly entitled (as opposed to the benefits to which the parties may be contending that they are entitled). It would be wrong to issue guidance of the sort contended for by CPAG fettering the discretion of the tribunal to consider issues not raised by the appeal."

25. At paragraph 94 the Tribunal of Commissioners states: -

"There must, however, be a conscious exercise of this discretion [to supersede adversely] and (if a statement of reasons is requested) some explanation in the statement as to the reasons why it was exercised in the manner it was. In exercising the discretion, the appeal tribunal must of course have in mind, in particular, two factors. First, it must bear in mind the need to comply with Article 6 of the Convention and the rules of natural justice. This will involve, at the very least, ensuring that the claimant has had sufficient notice of the tribunal's intention to consider superseding adversely to him to enable him properly to prepare his case. The fact that the claimant is entitled to withdraw his appeal any time before the appeal tribunal's decision may also be material to what the rules of natural justice demand. Second, the appeal tribunal may consider it more appropriate to leave the question whether the original decision should be superseded adversely to the claimant to be decided subsequently by the Secretary of State. This might be so if, for example, deciding that question would involve factual issues which do not overlap those raised by the appeal, or if it would necessitate an adjournment of the hearing."'

31. The decision in CIB/4751/2002 referred to by the Commissioner has now been reported as R(IB) 2/04.
32. Does the power to make a decision which is less favourable to the decision under appeal include the power to:

(i) reduce the period of the award?

(ii) in DLA cases, remove an entitlement to either component or both?

(iii)i in DLA cases, reduce an entitlement to one component from a higher to a lower rate? and

(iv ) in DLA cases, reduce an award for an indefinite period to an award for a fixed period?

33. Once again the answer to that question has to be 'yes', subject, of course, to the qualification, set out in paragraph 94 of R(IB) 2/04, concerning the conscious exercise of the judicial discretion and some explanation in any statement of reasons as to why the judicial discretion was exercised in the manner it was.
34. In the instant case, in the submission prepared for the appeal tribunal hearing, in section 5, it is noted that:

'I submit that (the claimant) has been awarded the higher rate of the mobility component from 14.12.07. I submit that this is not disputed by (the claimant) or the Department and therefore need not be considered by the Tribunal in this current appeal unless evidence becomes available on the day of the hearing casting doubt on the validity of the award.'

35. At the appeal tribunal hearing, the applicant was represented by an experienced appeal tribunal representative – Mr Doran. The record of proceedings for the appeal tribunal's decision notes that:

'Mr Doran

…

Current award of High Rate Mobility from 14.12.2007 indefinitely. He is aware of Tribunal's powers and is happy to proceed.'

36. In the statement of reasons for the appeal tribunal's decision, it is noted that:

'(The claimant) was advised of our powers reference the current award. He was represented. He decided to proceed.'

37. Although it is not expressly stated, I am concluding from these entries that the applicant was aware that the appeal tribunal had the power to make a decision which was less favourable to him than the decision under appeal. Further, I am also concluding that the applicant was aware of his right to withdraw his appeal in light of his knowledge of the appeal tribunal's powers. He chose not to withdraw but to proceed with his appeal.
38. Accordingly, I am satisfied that the appeal tribunal has complied with a fundamental requirement, set out in paragraph 94 of R(IB)2/04, to ensure 'that the claimant has had sufficient notice of the tribunal's intention to consider superseding adversely to him to enable him properly to prepare his case.' In light of the appeal tribunal's reference to its powers, the applicant's representative could have made an application for an adjournment, if it was felt that additional time was required to prepare the applicant's case. The representative did not make such an application and, on the contrary, indicated that the applicant wished to proceed with his case.
39. R(IB) 2/04 imposes a second requirement on appeal tribunals, when exercising their judicial discretion to make a decision less favourable to the appellant than the decision under appeal. As was noted above, at paragraph 90 of the decision, it is noted that '(if a statement of reasons is requested) some explanation in the statement as to the reasons why [the judicial discretion] was exercised in the manner it was.'
40. Has the appeal tribunal complied with this requirement? I am satisfied that the appeal tribunal, in the statement of reasons, has given an adequate explanation why it has considered that there should be a reduction in the applicant's entitlement to the mobility component of DLA from the higher to the lower rate. In arriving at that conclusion I cannot, with respect, accept the submission from the applicant's representative that the appeal tribunal did not have sufficient evidence to support its decision; or that the appeal tribunal did not provide adequate reasons for its decision; or that there was undue reliance on particular parts of the evidence reflective of an unfair and prejudiced attitude on the part of the appeal tribunal.
41. I am satisfied that the appeal tribunal undertook a rigorous and rational assessment of all of the evidence before it, including the medical evidence contained within the applicant's general practitioner records.
42. The appeal tribunal gave a sufficient explanation of its assessment of the evidence, explaining why it took the particular view of the evidence which it did. I have noted that the appeal tribunal concluded that the applicant was exaggerating the problem with his back and legs. It is important to note that the assessment of evidence is a matter for the appeal tribunal, and a Social Security Commissioner must be wary of interfering with the conclusions of an appeal tribunal based on its evidential assessment.
43. 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.'

44. 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.'

45. This reasoning was confirmed in Great Britain in CIS/4022/2007. After analysing a series of authorities on the issue of the assessment of credibility, including R3/01(IB)(T), Deputy Commissioner Wikeley 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".'

46. I am also of the view that any conflict in the evidence before the appeal tribunal has been clearly resolved and explained. The evidence concerning the applicant's trip to the United States of America was assessed in light of all of the other evidence before the appeal tribunal.
47. In relation to the rejection of entitlement to the higher rate of the mobility component, the appeal tribunal made sufficient findings of fact, relevant to its decision, all of which are wholly sustainable on the evidence, and all of which are supported by relevant evidence.
48. Where, then, did the appeal tribunal go wrong? The decision of the appeal tribunal, with respect to the mobility component was to reduce entitlement to the lower rate for a fixed period of three years. That was a decision which the appeal tribunal was entitled to make, in line with the exercise of its judicial discretion to make a decision less favourable than the decision under appeal. It is important to recall that the decision under appeal had awarded an entitlement to the higher rate of the mobility component for an indefinite period. Having decided to make a decision which was less favourable, the appeal tribunal was under an obligation to give an indication of the reasons why it was making such a less favourable decision. That obligation included, in the present case, an obligation to indicate why the reduced award of the lower rate of the mobility component was for a fixed three year period. Looking at the decision notices, and the statement of reasons for the appeal tribunal's decision, I can find no indication of the reasons why the appeal tribunal considered it appropriate to limit the award of the lower rate of the mobility component to three years.
49. Having found that the appeal tribunal was under a duty to provide reasons for limiting the award, and having failed to address that issue, and explain, in its statement of reasons, that it has so addressed it, I find that the decision of the appeal tribunal is in error of law.
50. The analysis thus far has related to the requirement for an appeal tribunal to give adequate reasons for any decision to make a fixed period award of DLA, in the context of the exercise of its judicial discretion to make a decision less favourable to the appellant than the decision under appeal. What also requires to be considered are the standards required from appeal tribunals, with respect to reasons for its decision, where the decision to make a fixed period award is in the context of an appeal against a decision not to award any entitlement to the benefit at all.
51. In the further observations, dated 13 May 2009, on the directed issue of the fixed period award, DMS made the following submission in connection with the issue of reasons for making fixed period awards:

'Regulation 17(1) and (6) of the Social Security (Claims and Payments) Regulations (NI) 1987 provides –

"(1) Subject to the provisions of this regulation and of section 37ZA(3) of the Act (disability living allowance) ….., a claim for benefit shall be treated as made for an indefinite period and any award of benefit on that claim shall be for an indefinite period."

"(6) ….. if, it would be inappropriate to treat a claim as made, and to make an award, for an indefinite period (for example where a relevant change of circumstances is reasonably to be expected in the near future) the claim shall be treated as made and the award shall be for a definite period which is appropriate in the circumstances."

Section 37ZA (of the Social Security (NI) Act 1975) of the Act has been replaced by section 71 of the Social Security Contributions and Benefits (NI) Act 1992 and section 71(3) provides –

"(3) A person may be awarded either component for a fixed period or for an indefinite period but if his award of a disability living allowance consists of both components, he may not be awarded the components for different fixed periods."

In paragraph 3 of reported decision R1/95 (DLA) the then Chief Commissioner agreed with the view that regulation 17(1) and (6) "….. apply to disability living allowance; subject to any modification rendered necessary by the provisions of section 37ZA of the 1975 Act." In paragraph 5 the Chief Commissioner held –

"….. I agree that Tribunals should consider whether an award for life would be inappropriate; but in my view they are not required to have evidence supporting a precise date for the end of entitlement. In my opinion they can apply their own experience of life to the facts of the case. If they make it clear that they have considered the point and explain in brief terms why they have decided that the award should be for a fixed period which they have selected, they will in my opinion have applied the provisions of regulation 17(6), and have complied fully with their obligations ….."'

52. With the utmost respect to the then Chief Commissioner, I would not necessarily agree that there has to be a concentration on the requirements of regulation 17 of the Social Security (Claims and Payments) Regulations (NI) 1987, as amended, when a decision is being made to make an award of entitlement to DLA for an indefinite period or for a fixed period. The power to make awards for either an indefinite or a fixed period is to be found in section 71(3) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended. Accordingly, the emphasis should be on the requirements of that legislative provision.
53. Where an adjudicating authority, including an appeal tribunal, is deciding to make an award of an entitlement to DLA (whichever component at whatever rate), is that authority obliged to give reasons for the restriction of the period of the award? The answer to that question has to be 'yes'.
54. There may be many good reasons for restricting entitlement to DLA for a fixed period. An appeal tribunal may have evidence that the basis upon which the appellant satisfies the conditions of entitlement to the benefit may change in the future. For example, there may be evidence that the appellant is likely to undergo a medical procedure or intervention which could well lead to an improvement in their medical condition. Additionally, the medically qualified panel member of the appeal tribunal's experience and knowledge of the particular disability giving rise to entitlement to the benefit may include a prognosis that the symptoms and effects of the disability are likely to improve in the future. As was observed by the then Chief Commissioner in R1/95(DLA), awards in respect of children are more likely to be for a fixed rather than an indefinite period, reflecting the fact that changes can and do occur in the lives of children as they reach significant milestones.
55. Equally there may be very good reasons for an appeal tribunal making an indefinite award of entitlement to DLA. All of the evidence before the appeal tribunal could lead to a conclusion that it is unlikely that basis upon which the appellant satisfies the conditions of entitlement to the benefit will change in the foreseeable future. The nature of certain disabling conditions is such that further improvement is unlikely.
56. The assessment on the length of an award of entitlement to DLA is an integral part of the decision-making process undertaken by the appeal tribunal. As it is part of the decision-making process, it should also be part of the reasoning process. That means that an appeal tribunal is under an obligation to give reasons for its conclusions on the length of an award, whether that is for a fixed or an indefinite period.
57. Support for that conclusion is to be found in the decisions of the Social Security Commissioners in C2/93(DLA) at paragraph 6, and C2/95(DLA) at paragraph 9, and C7/95(DLA) at paragraph 9. Despite my stated reservations of the reasoning employed in R1/95(DLA), I agree with the overall conclusion of the then Chief Social Security Commissioner that some explanation, albeit in brief terms, should be given as to why an appeal tribunal has decided that an award should be for a fixed period which it has selected. Finally, Commissioner Williams, in the Great Britain case CDLA/2349/2008, found that an appeal tribunal was in error of law in failing to explain why it had made an award for the fixed period which it had chosen. At paragraph 5 of the decision, the Commissioner stated that:

'The choice of an award period … has to be a positive decision needing clear justification.'

The applicant's other grounds for appealing

58. Having found that the appeal tribunal was in error of law in failing to provide reasons for its decision to make a fixed period award of entitlement to DLA, I do not require to address the applicant's other grounds for making an application for leave to appeal to the Social Security Commissioner.
59. I have already indicated, however, that I cannot, with respect, accept the submission from the applicant's representative that the appeal tribunal did not have sufficient evidence to support its decision; or that the appeal tribunal did not provide adequate reasons for its decision; or that there was undue reliance on particular parts of the evidence reflective of an unfair and prejudiced attitude on the part of the appeal tribunal.
60. I have also noted the submissions made by the applicant's representative in connection with the manner in which the appeal tribunal undertook an examination, during the appeal tribunal hearing, of the applicant's walking stick. The applicant's representative was less concerned that the members of the appeal tribunal had examined the walking stick, but with the manner in which the medically qualified panel member had approached this task. That manner was described by the applicant's representative as 'confrontational and adversarial'.
61. In the record of proceedings for the appeal tribunal hearing, it is noted that the applicant's walking stick was examined. Further, the applicant's representative has confirmed that the applicant had no objection to this process.
62. I have considered whether the appeal tribunal should have undertaken such an examination. In the Great Britain case R(DLA)5/03, an appeal tribunal had asked an appellant to pick up a handbag from the floor and tip out its contents. Commissioner Jacobs had the following to say about that request, at paragraphs 8 to 19 of his decision:

'8. The claimant's representative has asked me to deal with an issue of more general importance. This is the tribunal's power, on hearing a disability living allowance appeal, to carry out a physical examination or ask the claimant to undergo a physical test. The issue arose from an allegation that the tribunal had asked the claimant to pick up her handbag from the floor and tip out its contents. It has developed into a broader discussion of the tribunal's powers. As I have set the tribunal's decision aside on other grounds, I am not concerned with what the tribunal did; that can be dealt with under the tribunal's complaint procedure. I am concerned rather with directing the tribunal on its powers at the rehearing.

9. The claimant's representative has put her argument in different ways, but they all relate to section 20(3) of the Social Security Act 1998. This provides:

"(3) At a hearing before an appeal tribunal, except in prescribed cases or circumstances, the tribunal—

(a) may not carry out a physical examination of the person mentioned in subsection (2) above; and

(b) may not require the person to undergo any physical test for the purpose of determining whether he satisfies the condition mentioned in section 73(1)(a) of the Contributions and Benefits Act."

This effectively re-enacts section 55(2) of the Social Security Administration Act 1992, which was limited to the former disability appeal tribunals. Section 73(1)(a) deals with actual and virtual inability to walk.

Physical examination

10. A tribunal is not entitled to carry out a physical examination of the claimant. That is prohibited by section 20(3)(a). What is a physical examination for the purposes of this provision? The nature of a physical examination was considered by the Tribunal of Commissioners in Northern Ireland in C1/01-02(IB) [reported as R1/01 (IB)(T)]. I respectfully agree with that decision. A physical examination is more than mere observation of an activity performed by a claimant at someone's request. A physical examination is a structured investigation applying medically recognised techniques in an attempt to elicit objective signs of injury, disease or dysfunction. These techniques may involve physical contact with the claimant, but this is not an essential feature of all examinations.

11. Asking questions at a hearing differs from an examination. The purpose of asking questions is not to identify objective physical signs. Rather, it is an attempt to elicit the claimants' symptoms or estimates of their own disablement.

12. Nor does it involve an examination to ask a claimant with a visual impairment, "What can you see when you look at the panel members?", an example used by the claimant's representative. There is no difference between this and any other question. It is merely asking the claimant to give oral evidence in a way that will allow the answer to be most informative to the tribunal.

13. Watching a claimant perform an everyday function in the tribunal room is different from asking questions, but it does not involve carrying out a physical examination, because it is not applying medically recognised techniques.

14. So, I reject the argument that observing the performance of a task amounts to or involves carrying out a physical examination.

Physical test

15. A physical test, in the context of section 20(3)(b) and in contrast to physical examination, means performing an activity which demonstrates the extent of the claimant's ability to perform that activity or to perform an activity that involves similar or related functions.

16. If a claimant does something in view of the tribunal and without prompting or request by the tribunal, it is entitled to take account of its observations. The claimant's representative accepts that. This applies to something done by the claimant without appreciating its significance, such as the manner of walking into the hearing room. It also applies to something which the claimant volunteers to do, such as showing a swollen joint or demonstrating a difficulty with buttons.

17. The issue raised by the claimant's representative concerns an activity that the tribunal asks the claimant to perform. Of course, the tribunal cannot force a claimant to do something. But there is the risk that it might draw adverse conclusions from a failure to comply with a request. If the tribunal is entitled to require the claimant to undergo a physical test, it is entitled both to ask the claimant to do something and to draw appropriate inferences from a refusal.

18. Section 20(3)(b) only prohibits a tribunal from requiring a claimant to undergo a physical test in order to test for actual or virtual inability to walk. On the face of it, it leaves the tribunal free to require a claimant to undergo a physical test for other aspects of entitlement to a disability living allowance. However, that is not a correct interpretation. The provision must not be interpreted in isolation. It can only be properly understood in its historical context of the development of the law. The provision began as section 55(2) of the 1992 Act and was enacted in relation to the creation of disability appeal tribunals. When those tribunals were abolished and replaced by the appeal tribunals under the 1998 Act, the provision was repeated. Historically, the only tests that were carried out before 1992 were those carried out by the medical appeal tribunals. Those tribunals had the power to carry out a physical examination of a claimant. In the case of appeals relating to mobility allowance, the examination was usually supplemented by a walking test. Viewed in that context, section 55(2)(b) of the 1992 Act and section 20(3)(b) of the 1998 Act prohibit only the test that was formerly used by medical appeal tribunals. They prohibit only that test, because no other test was ever used. They are negative in their effect. It is not appropriate to interpret them to confer a positive statutory authority to require a claimant to undergo a physical test for other purposes.

19. However, that does not mean that appeal tribunals may not invite claimants to demonstrate an activity. Tribunals are entitled to ask claimants to explain how they do something. There is limited scope for this enquiry to be supplemented by a demonstration in the context of the mobility component at the lower rate or of the care component. But, to the extent that this may be possible, there is no reason why tribunals should not also ask claimants to demonstrate. Such requests must, of course, be limited to the proper scope of a hearing. It is the function of a tribunal to conduct a judicial enquiry, not to undertake an occupational therapy assessment. If a claimant refuses to accede to the tribunal's request, it may be entitled to draw inferences from that refusal. But this will depend on the reasonableness of the request and the reasons the claimant gives for refusing to comply.'

63. The equivalent in Northern Ireland of section 20(3) of the Social Security Act 1998, is Article 20(3) of the Social Security (Northern Ireland) Order 1998.
64. On the basis of the principles in R(DLA)5/03, I find nothing wrong in the appeal tribunal asking to view the applicant's walking stick. I cannot comment, however, on the manner in which the members of the appeal tribunal, particularly the medically qualified panel member approached the issue. It is clear that a request was made to view the walking stick, and the appellant had no objection to demonstrating it to the members of the appeal tribunal. There is no reference, in the statement of reasons for the appeal tribunal's decision to the examination of the walking stick, and the appeal tribunal has not drawn any inference from such an examination.

Disposal

65. The decision of the appeal tribunal, dated 23 June 2008, is in error of law.
66. Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.
67. For further reasons set out below, I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given. This is because there may be further findings of fact which require to be made. Further I do not consider it expedient to make such findings, at this stage of the proceedings. Accordingly, I refer the case to a differently constituted appeal tribunal for re- determination.
68. It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of his entitlement to DLA remains to be determined by another appeal tribunal. The newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal.

(Signed) K Mullan

COMMISSIONER

16 June 2009