UK Social Security and Child Support Commissioners' Decisions

DGR/SH/12

Commissioner's File: CS/343/1994

SOCIAL SECURITY ACTS 1975 TO 1990 SOCIAL SECURITY ADMINISTRATION ACT 1992 CLAIM FOR INVALIDITY BENEFIT

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Name:

Appeal Tribunal: Case No:

[ORAL HEARING]

1. For the reasons set out below, the decision of the social security appeal tribunal given on 15 February 1994 is not erroneous in point of law, and accordingly this appeal fails.
2. This is an appeal by the claimant, brought with the leave of the tribunal chairman, against the decision of the social security appeal tribunal of 15 February 1994. The claimant asked for an oral hearing, a request which was acceded to. At that hearing the claimant was represented by Mr Stephen Fry, a friend, whilst the adjudication officer appeared by Miss T Thomas of the Solicitor's Office of the Department of Social Security.
3. On 8 July 1993 the adjudication reviewed the award to the claimant of invalidity benefit, and disallowed the same from and including 12 January 1990 on the ground that the claimant had, from that date, ceased to be incapable of work by virtue of some specific disease or bodily or mental disablement, and the deeming of incapacity was inappropriate. In due course, the claimant appealed to the tribunal, who in the event upheld the adjudication officer.
4. Manifestly, the tribunal went into the matter will great thoroughness. The chairman recorded at considerable length the evidence before the tribunal, the tribunal made extensive findings of fact, and they gave detailed reasons for their decision. They were satisfied that, from the relevant date, the claimant had been working-. His activities were otherwise then minimal, and there was insufficient medical evidence to suggest that the claimant's activities were therapeutic. They decided, inter alia, as follows:

3. [The claimant] has been running his own business at the Melton Fence and Gate Manufacturers. While a person may be deemed to be incapable of work, this can be negated by the person actually doing some work. It is accepted that [the claimant] is not fit to do his original job of fitter and welder, but in order to be entitled to invalidity benefit a person has to show that there is no work that they can reasonably be expected to do. [The claimant] has been running his own business. [The claimant] disputed the evidence given by the members of the family, Mrs Pamela V and Mrs Melanie V because of family disputes. However, [the claimant's] own evidence, and on the evidence of the investigating officer who observed [the claimant] at his work place, [the claimant] is running a business. He takes orders on his telephone, he supervises his yard, he has supervised Mr Quantrill and assisted him in hanging a gate for Mr Poynter. He signed for the cheques for the business and in a newspaper photograph taken of [the claimant] and Mr Quantrill it is clear that he is involved with the business of Fence and Gate Manufacturers. The Tribunal consider that although the business actually made a loss [the claimant] was running the business with a view to remuneration because [the claimant] actually took out drawings from the business of £660 as shown on the balance sheet. In the opinion of the Tribunal [the claimant] was not performing a negligible amount of work in running his own business (R(S) 2/61). [The claimant] had originally averred that all he had done was to put up the finance and set up the business for altruistic reasons to give employment to his mother's former employees (R(S) 10/79). However the Tribunal considered that supervising on a regular basis in the yard, inspecting timber, writing cheques, taking orders on a mobile telephone and supervising work was more than negligible, and therefore [the claimant] had not shown that he was incapable of work. By running the business of Melton Fence and Gate Manufacturers and doing more than negligible or trivial work [the claimant] has demonstrated that he is capable of work. ..... Although the general practitioner said that he considered that [the claimant] was a candidate for therapeutic work he gave no reasons as to why he considered that working in the Fence and Gate business would be therapeutic for [the claimant's] health. His general practitioner has said that there is no question of [the claimant's] taking on anything which is of a manual nature, however [the claimant] has been observed doing work of a manual nature, therefore there is no evidence to support the view that [the claimant] had good cause for doing the work because it would be therapeutic under regulation 3(3) of the said Regulations ..."

I see nothing wrong in law with the tribunal's decision. They have gone into the matter with a commendable thoroughness, have made all relevant findings of fact, and given adequate reasons for their decision.

5. However, the claimant and his representative argued before me that the tribunal had been guilty of a breach of natural justice. They contended that they failed to hear the evidence of Mr Quantrill, who was waiting to give his testimony, and they argued that, had such evidence been given, the tribunal might have come to a different conclusion. The claimant said, Mr Fry not having himself been at the hearing before the tribunal, that the proceedings had been prematurely determined by the chairman, because the time available for the hearing had been exceeded, and it was snowing outside. However, there was nothing in the papers to indicate that this is what happened. Undoubtedly Mr Quantrill was there as a potential witness - he was described in the papers as a witness - but it was the responsibility of the claimant's representative to call him if he wished. There is nothing to suggest in the papers that he did seek to call him, and that the tribunal refused to entertain his evidence. Nor did the claimant himself state before me that such was the case. The furthest he would go was that the proceedings had been brought to a rapid conclusion with the consent of the claimant's representative, but not with the consent of the claimant himself. But that is not the same thing as saying that the claimant's representative tendered Mr Quantrill as a witness, and the tribunal refused to hear him. Moreover, there is no evidence from the claimant's representative eg. in the form of a letter, suggesting that the tribunal did refuse to hear Mr Quantrill.
6. Moreover, apart from the fact that there is nothing in the record of the proceedings to suggest that the tribunal refused to hear Mr Quantrill, there is nothing in the papers to suggest that the claimant's representative or, for that matter, the claimant, ever made a complaint on this point. If the claimant was dissatisfied with the way the proceedings had been conducted, it was incumbent upon him, or his representative, to complain at the time, or at least to write in afterwards before the tribunal gave their decision. It is not generally open to claimants, who are dissatisfied with the way in which the proceedings have been conducted, to sit back doing nothing awaiting the outcome of the decision, and when it is adverse to them, then and then only to complain. Furthermore, in his appeal to the Commissioner this issue was never raised until the day of the hearing when Miss Thomas was taken completely by surprise.
7. I cannot normally go behind the record of the proceedings. There has to be clear and convincing evidence that the position has not been properly represented. I am not satisfied that such is the case in the present instance. The mere assertion by the claimant, without some independent backup or other supporting circumstances, is simply not enough. On the balance of probability, I am satisfied that for some reason the claimant's representative decided not to call Mr Quantrill, and although the tribunal may well have made some remarks about the inclement weather and the fact that they had gone over time, this did not mean that they were refusing to hear further evidence, and that the hearing was being terminated against the wishes of the claimant's representative, or, for that matter, the claimant himself.
8. Mr Fry complained that the tribunal had relied on a video, but that the claimant had had no sight of that video either at the hearing or prior thereto. He contended that the tribunal had relied on a video on the basis of which it had been alleged that the claimant had been using a power drill and lifting a gate, whereas the claimant had contended that he had done no more than advise Mr Quantrill on how the gate should be hung. There is nothing in this point. There was no video at the hearing. There was no question of the tribunal having seen the video and then precluded the claimant from looking at it as well. One of the witnesses for the Department, a Mr. Hill, had seen the claimant using a power drill and lifting the gate, and he had. recorded this on a video. The real evidence was the eyesight of that particular witness. Mr Hill merely went on to back up his evidence as to what he saw by stating that he had taken it on video. But no video evidence was ever produced. At the end of the day the tribunal were concerned with whether or not they believed Mr Hill, and clearly they did. They did not rely on any video.
9. Although Mr Fry did not specifically take the points, there were certain other criticisms set out in the grounds of appeal seemingly prepared by the claimant's original representative. The claimant contended that the evidence of Mr Poynter was not to be relied on, in that "he was paid by members of my estranged family to order a gate from Melton Fence and Gates and to video me." The tribunal were well aware that there was enmity between the claimant and his family and that the claimant considered Mr Poynter an agent provocateur for the Department. Manifestly, the evidence of Mr Poynter was not inadmissible; but the background went to its weight. Nevertheless the tribunal, having taking everything into account were satisfied that Mr Poynter had ordered the gate, for whatever reason, and that the position was as seen by Mr Hill. It was a matter entirely for the tribunal.
10. As to the evidence of the members of the claimant's estranged family, it was open to the tribunal to accept it. They were aware that it was the subject matter of challenge, and again it was entirely for the tribunal to give what weight they wished to it. The claimant goes on in his grounds of appeal to complain that he was not cautioned prior to the statement being taken from him, a statement which was put in evidence before the tribunal. There was no need for any such caution. The claimant also contends that there was a prejudicial document before the trib.unal which involved the word "fraud". Again there is nothing in this, because the evidence irrespective of such document, suggested fraud regardless of whether or not criminal proceedings had been brought or had been in contemplation.
11. In short, I see no respect in which it could be said that the tribunal erred in point of law. In my judgment, they have gone into the matter with a commendable thoroughness, and were entitled on the evidence before them to reach the conclusion they did.
12. Accordingly I have no hesitation in dismissing this appeal.

(Signed) D.G. Rice Commissioner

(Date)

'131011995