SF-v-Department for Social Development (IB) [2012] NICom 249
Decision No: C8/11-12(IB)
SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992
SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
INCAPACITY BENEFIT
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 27 January 2010
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. I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal. The decision of the appeal tribunal dated 27 January 2010 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 incapable for work in accordance with the personal capability assessment and is not entitled to incapacity benefit (IB) credits from and including 15 January 2008 is confirmed.
Background
2. This appeal has a long and somewhat complicated background.
3. The decision under appeal to the appeal tribunal was a decision of the Department, dated 15 January 2008, which decided that:
(i) grounds existed to supersede an earlier decision of an appeal tribunal, dated 16 July 2007, and which had awarded an entitlement to IB credits, from and including 15 August 2006; and
(ii) the appellant was not incapable of work in accordance with the personal capability assessment and not entitled to IB credits from and including 15 January 2008.
4. The appeal was received in the Department on 22 January 2008. On 18 February 2008 the decision dated 15 January 2008 was looked at again but was not changed.
5. An appeal tribunal hearing took place on 24 June 2008. The appeal was disallowed and the appeal tribunal confirmed the decision of the Department dated 15 January 2008. Subsequently an appeal to the Social Security Commissioners against the decision of the appeal tribunal dated 24 June 2008 was successful. The Chief Social Security Commissioner, in allowing the appeal, remitted the appeal for re-hearing before a freshly-constituted appeal tribunal.
6. The further appeal tribunal hearing took place on 27 January 2010. On this occasion the appellant was present at the oral hearing of the appeal and was represented by Mr O’Neill from the Citizens Advice Bureau. There was no Departmental presenting officer present. The appeal tribunal disallowed the appeal. On 4 August 2010 an application for leave to appeal against the decision of the appeal tribunal was received in the Appeals Service. On 13 August 2010, the application for leave to appeal was refused by the Legally Qualified Panel Member.
Proceedings before the Social Security Commissioner
7. On 23 September 2010 a further application for leave to appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners. On 11 November 2010 observations were sought from Decision Making Services (DMS) and these were received on 29 November 2010. In these observations, Mr Collins, for DMS, opposed the application on the grounds cited by the appellant’s representative. Written observations were shared with the appellant and his representative on 7 December 2010. On 31 January 2011 written observations in reply were received from Mr O’Neill which were shared with Mr Collins on 18 April 2011. Further observations were received from Mr Collins on 21 April 2011. On 17 May 2011 I directed that no oral hearing of the application would be required. Further correspondence was received by way of e-mail from Mr O’Neill on 7 June 2011.
Errors of law
9. 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.”
Was the decision of the appeal tribunal in the instant case in error of law?
10. In the application for leave to appeal to the Social Security Commissioner, Mr O’Neill submitted that the decision of the appeal tribunal was in error of law on a number of different grounds. I shall deal with each of Mr O’Neill’s points in turn.
The medical evidence which post-dated the decision under appeal
11. Mr O’Neill submitted that as the appellant’s representative, he had placed certain items of written evidence, in the form of medical reports, before the appeal tribunal. Mr O’Neill submitted that as the appellant’s medical conditions were long-standing and ongoing, it was not clear as to why the appeal tribunal felt it necessary to reject this evidence. Further it was incumbent on the appeal tribunal to examine the relevance of this evidence rather than simply reject it out of hand. Finally, Mr O’Neill submitted that in remitting the appeal back to a freshly constituted appeal tribunal, the Chief Social Security Commissioner had alluded to the medical evidence and its potential relevance.
12. In the written observations on the application for leave to appeal, and in connection with the particular issue of the relevant medical evidence, Mr Collins submitted that:
‘In support of this contention (the claimant’s) representative Mr O’Neill cites Great Britain decision CDLA 2228 2009. In this decision of the Upper Tribunal Judge Lane noted at paragraph 4 that the tribunal had made a clear finding the appellant was a credible witness and stated at paragraph 6:-
“The tribunal was correct to say that, insofar as the report reflected back on the period in question, it could be relied upon. But the question is whether it did reflect that period, and what weight could properly be given to the evidence.”
The issue of how a tribunal should deal with evidence obtained after the date of the decision under appeal has also been considered by Commissioner Brown in unreported Northern Ireland decision C24/03-04(DLA). At paragraphs 7 and 8 Commissioner Brown referred to Article 13(8)(b) of the Social Security (Northern Ireland) Order 1998 which states that an appeal tribunal shall not take into account any circumstances not obtaining at the time when the decision appealed against was made. Commissioner Brown then stated:-
“7. It does not prevent the Tribunal taking into account evidence obtained after the decision under appeal was made, for the purpose of drawing inferences as to the circumstances obtaining when or before the decision was made. For example, if a claimant tells the Tribunal that his situation now is the same as it was at the date of the decision under appeal and produces evidence as to his present walking ability, why should that latter evidence if accepted not be used to determine the circumstances at the date of the claim?
The Tribunal in deciding the appeal must not take into account circumstances which did not obtain at the time of the decision under appeal. However, it is entitled to take account of any evidence which indicates what those circumstances were.
In this connection I would refer in particular to decision CDLA/4734/99, a decision of Mr Commissioner Jacobs in Great Britain. As Commissioner Jacobs stated at paragraph 57 of that decision: -
“There is a difference between a circumstance and evidence of that circumstance.”
At paragraph 58 he stated: -
“Section 12(8)(b) [the Great Britain equivalent to Article 13(8)(b)] limits an Appeal Tribunal’s jurisdiction by preventing it taking into account a fresh circumstance. It is only concerned with evidence in this respect: evidence is not admissible unless it relates to circumstances obtaining at the date of the decision under appeal. I stand by the statement of the law that I set out in CDLA/2934/1999, paragraph 9: -
“In the case of a claim for a Disability Living Allowance, the jurisdiction [of an Appeal Tribunal] is limited to the inclusive period from the date of claim to the date of the decision under appeal. The effect is also to limit the evidence that is relevant to the appeal. The only evidence that is relevant is evidence that relates to the period over which the tribunal has jurisdiction. However, it is the time to which the evidence relates that is significant, not the date when the evidence was written or given. It does not limit the tribunal to the evidence that was before the officer who made the decision. It does not limit the tribunal to evidence that was in existence at that date. If evidence is written or given after the date of the decision under appeal, the tribunal must determine the time to which it relates. If it relates to the relevant period, it is admissible. If it relates to a later time, it is not admissible.””
8. I can put the matter no better than Mr Commissioner Jacobs did in the above extract with the caveat as regards the final sentence in relation to which I would add only this, that the evidence may relate to the period over which the Tribunal has jurisdiction even though it also relates to a later time so long as it sheds light on the circumstances obtaining at the date of the decision under appeal …’
The above decision was endorsed by Commissioner Mullan in unreported decision C2/10-11(IB).
In the circumstances of the present case the tribunal stated:-
“In considering the matter today, we have, in addition to the scheduled documentation, evidence from (the claimant), representations from Mr O’Neill, further medical evidence from Dr McAreavy General Practitioner (letter 14.05.2008) and Dr McFarland, Psychiatrist (03.06.2008) as well as the Chief Commissioner’s decision (C1/09-10(IB) on (the claimant’s) appeal.
(The claimant’s) Representative, Mr O’Neill made a number of references to the additional medical evidence referred to above from Dr McAreavy and Dr McFarland, submitted that both these letters provided support for (the claimant’s) contentions and invited us to place considerable reliance on them. This we are unable to do, in view of the period relevant to the appeal – the date of decision was 15.01.2008 and the Tribunal may not take into account any circumstances not obtaining at the time when the decision appealed against was made. Both these letters post date the appeal by a number of months and neither gives any indication that circumstances pertaining at January 2008 rather than contemporaneous events at May and June 2008 are being described. We therefore consider it unwise to place any reliance on this evidence.”
I would submit from the above extract the tribunal has clearly explained why it has rejected the evidence from (the claimant’s) GP and Psychiatrist. The tribunal acknowledged the significance attached to them by his representative. It noted that the letters post-dated the decision under appeal. However having considered their contents it concluded that the evidence was not in fact relevant to the time of the Department’s decision or before. Therefore the tribunal has not simply rejected the letters because they were written after the date of the Department’s decision. I would submit that the tribunal’s conclusion in relation to this issue is clearly compatible with the case law referred to above. Consequently I can identify no error arising from (the claimant’s) first ground of appeal.’
13. I agree with the submission from Mr Collins in its entirety. I cannot accept the argument presented by Mr O’Neill that the appeal tribunal declined to consider the relevant medical evidence simply because it post-dated the decision under appeal. Rather it considered, in line with the guidance given by the Social Security Commissioners in Northern Ireland the Upper Tribunal in Great Britain, the relevance of the medical evidence to the period under consideration by them. Further, the guidance given by the Chief Social Security Commissioner in remitting the appeal to the freshly constituted appeal tribunal was for the new appeal tribunal to consider the relevance of the evidence contained in the medical reports. It is my view that the appeal tribunal’s management of the relevant evidence is in keeping with this guidance. Consequently I cannot agree that the decision of the appeal tribunal was in error of law on the basis of this submitted ground.
14. In connection with the issue of the appeal tribunal’s handling of certain of the medical evidence it is important to note that Mr O’Neill, in his further written observations in reply to those of Mr Collins, submitted that the appeal tribunal was under a duty to alert or put him on notice that it intended to reject the relevant medical evidence for the reasons eventually given. Such an alert would have provided him, as the appellant’s representative, with the opportunity to seek clarification from the authors of the various medical reports. In reply to this further observation, Mr Collins submitted that:
‘In unreported Northern Ireland decision C24/03-04(DLA) Commissioner Brown stated at paragraph 13:-
“… the tribunal is not obliged in every case to put forward to the claimant its possible conclusions from the evidence and enable the claimant to dispute those conclusions…….The hearing is the claimant’s chance to put his case. He cannot expect a two stage process of the Tribunal hearing the case, reaching provisional conclusions on the evidence and then putting those conclusions forward to be rebutted by more evidence.”’
15. Once again I agree with Mr Collins. Mr O’Neill is an experienced appeal tribunal representative who is aware of the practice and procedure of oral hearings before an appeal tribunal. He would be conscious of the requirement to make oral and written submissions on behalf of his client including submissions in connection with the relevance and weight to be attached to the evidence which is before the appeal tribunal. As was noted by Commissioner Brown in C24/03-04(DLA), those appearing before an appeal tribunal cannot expect to learn, during the course of an oral hearing, what might be the provisional conclusions of the appeal tribunal on an interim assessment of the evidence. In any event, it is my view that the appeal tribunal did not ‘reject’ the relevant medical evidence in the sense of refusing to take it into account. It did weigh and assess that evidence in accordance with the relevant judicial principles but formed the viewed that it was not relevant to the period under consideration by it.
The approach of the appeal tribunal to its assessment of the evidence which was before it was a ‘closed mind’
16. With respect to this submission by Mr O’Neill, I have to reject it. Looking at the record of proceedings (ROPs) for the appeal tribunal hearing and the statement of reasons (SORs) for the appeal tribunal’s decision, it is clear that the appeal tribunal undertook a rigorous and rational assessment of all of the evidence before it. 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. Any conflict in the evidence before the appeal tribunal has been clearly resolved and explained. 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. None of the appeal tribunal’s findings are irrational, perverse or immaterial.
17. More particularly, it is clear to me that the proceedings of the appeal tribunal were conducted in accordance with the principles of natural justice, and its decision is reflective of an apposite consideration of, and adherence to, such principles. Read as a whole, the SORs 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.
18. Mr O’Neill made reference to a comment, as recorded in the ROPs for the appeal tribunal hearing, from the medically qualified panel member (MQPM) of the appeal tribunal. Having considered what was recorded in the ROPs, and in the context of the appeal tribunal hearing as a whole, it is clear that the MQPM was merely alluding to what appeared to be a disparity or anomaly in the evidence which was before it and inviting comment on it. It is not evident to me that the MQPM or any other member of the appeal tribunal had formulated a view on the available evidence during the course of the oral hearing of the appeal.
19. Consequently, I cannot find that the decision of the appeal tribunal is in error of law on the basis of this cited ground.
The appeal tribunal’s consideration of the evidence contained in the report of the examining medical practitioner(EMP)
20. Mr O’Neill submits that the appellant denied, in the strongest possible terms, aspects of the history and statements recorded in the report of an examination conducted by an EMP, as part of the Departmental decision-making process. Further, Mr O’Neill submitted that the Department no longer had a policy of reading back the contents of a report of a medical examination, conducted in connection with the decision-making process for benefit entitlement, to the claimant, and permitting the claimant to ‘sign-off’ the relevant report as agreed. This runs contrary to the parallel policy in Great Britain. Mr O’Neill submitted that the absence of such a ‘read-back’ and ‘sign-off’ policy infringed the appellant’s ECHR rights.
21. I would begin by noting that Mr Collins, in his written observations on the application for leave to appeal, has confirmed that there never has been a ‘read-back- or ‘sign-off’ policy in connection with the preparation of reports of medical examinations conducted in connection with entitlement to IB, either in Great Britain or Northern Ireland. Accordingly it cannot be argued that the appellant, living in Northern Ireland, is the subject of any human rights discrimination as against his claimant equivalent in Great Britain.
22. Further, and most importantly, having considered the ROPs and SORs, it is clear that the appeal tribunal was aware that the appellant and his representative had concerns about the content of the report of the medical officer of the Department. In my view the appeal tribunal took those concerns into account but, having assessed the appellant’s own evidence, rejected that evidence, and decided that it preferred the evidence contained in the report of the examination conducted by the medical officer of the Department. The appeal tribunal’s assessment of the evidence was thorough and rigorous. The appeal tribunal has set out in some detail why it rejected the appellant’s evidence and preferred that of the medical officer of the Department. I can find no error whatsoever with the appeal tribunal’s approach.
The appeal tribunal’s assessment of the credibility of the appellant
23. Mr O’Neill submits that the decision of the appeal tribunal is in error of law in that the appeal tribunal did not raise the issue of the appellant’s credibility with the appellant or Mr O’Neill and did not, thereby, afford him the opportunity to provide evidence in rebuttal.
24. I begin by noting that 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.’
25. 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.’
26. 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:
27. In my view, and in keeping with the guidance given in R3/01(IB)(T), in the instant case the SORs do make the decision comprehensible to the reasonable person reading it. Accordingly, I cannot find any error in the appeal tribunal’s approach to the assessment of the appellant’s credibility.
28. Further, and with respect to the submission which has been made by Mr O’Neill, I cannot accept the argument that the appeal tribunal was under a duty to put the appellant or himself on notice in relation to its assessment of the credibility of the appellant. As was noted above, Mr O’Neill is an experienced appeal tribunal representative who would be conscious of the requirement to make oral and written submissions on behalf of his client including submissions in connection with the relevance and weight to be attached to the evidence which is before the appeal tribunal, including the appellant’s own evidence. Further, any suggestion that there is a requirement to put an appeal tribunal’s provision conclusions on an interim assessment of the evidence runs contrary to the guidance set out by Mrs Commissioner Brown in C24/03-04(DLA). Accordingly, I cannot agree that the decision of the appeal tribunal is in error of law on the basis of this submitted ground.
The appellant’s behaviour at the oral hearing of the appeal and the relevance of other descriptors
29. Mr O’Neill submits that the appellant’s unusual behaviour during the course of the oral hearing of the appeal supports the conclusion that the appeal tribunal erred in law in not awarding points for two particular descriptors in Part II of the Schedule to the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended, which, in light of this behaviour, were applicable to the appellant.
30. The ROPs confirm that an incident did occur during the oral hearing of the appeal when the claimant ‘… leaves room abruptly making further abusive remarks’. This followed earlier notes of the use of offensive language by the appellant. Nonetheless, it is clear that the oral hearing of the appeal continued following an adjournment. At the conclusion of the oral hearing, Mr O’Neill was invited to make a further submission. The ROPs note that he made a submission in connection with certain descriptors. It seems to me that had Mr O’Neill formed the view that the unusual behaviour experienced during the oral hearing of the appeal was evidence that other descriptors were applicable, then a further submission to that effect could have been made. In any event, and as was noted above, 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. Accordingly I cannot find that the decision of the appeal tribunal is in error of law on the basis of this submitted ground.
Disposal
31. The decision of the appeal tribunal dated 27 January 2010 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 incapable for work in accordance with the personal capability assessment and is not entitled to IB credits from and including 15 January 2008 is confirmed.
(signed) K Mullan
Chief Commissioner
11 January 2012