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[1996] UKSSCSC CDLA_6166_1995 (17 June 1996)

R(DLA) 2/98

Mr. J. M. Henty CDLA/6166/1995

Tribunal practice - record of proceedings - whether typed chairman's signature is valid

The claimant claimed both components of disability living allowance. His claim was disallowed both initially and on review. He appealed to the tribunal who allowed his appeal as to the care component only awarding the lowest rate of that component from 24 March 1994 to 17 April 2000. He appealed to the Commissioner, with leave of the chairman, as regards the mobility component only. The papers before the Commissioner included a typed transcript of the record of proceedings bearing a typed copy of the chairman's signature. There was no manuscript copy of the record of proceedings nor a copy of the record bearing the chairman's manuscript signature. The accuracy of the record was not disputed. The adjudication officer made a submission, from which he later resiled, that because the copy of the record bore only a typed copy of the chairman's signature and not his manuscript signature, it was not a valid record and there had been an error of law. He also submitted that the tribunal had failed to make adequate findings on the claimant's walking ability.

Held, allowing the claimant's appeal:

if there were different versions of the record, the obvious method of authentication would be the chairman's manuscript signature. However, the manuscript signature was not an essential requirement. In any event, under English law, a signature does not necessarily need to be in manuscript form provided that the party adopts the printed name as his own. As the chairman had granted leave, it could be inferred that he had so adopted the typed signature on the record. CCS/14/1994 was followed;

the tribunal had failed to make findings as to the reason for the claimant halting after walking 100 yards;

the tribunal had failed to give reasons why only a limited award of the care component had been made.

The appeal was remitted for rehearing.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

My decision is that the decision of the DAT was erroneous in point of law. I set it aside and remit the case for rehearing in front of a differently constituted tribunal.

This is an appeal with the leave of the chairman from the decision of a DAT dated 18 April 1995. The claimant suffers back problems, and, according to the opinion of the EMO (T65), his problems are nearly all due to this condition. He has, however, other problems with his feet, having had his middle left toe amputated. Further, he suffered a myocardial infarction in March 1994.

On 24 March 1994, the claimant made a claim for DLA. It was refused by the AO, initially and on review, and he appealed to the appeal tribunal. In her submissions to the tribunal, the claimant's representative limited her submissions to a claim for the mobility component at the higher level, on the grounds that the claimant was virtually unable to walk (section 73(1)(a), SSCBA as interpreted by regulation 12 of the DLA regs.) and to the care component at the lowest level on the grounds that he could not satisfy the cooking ability test (section 72(1)(a)(ii)). The tribunal refused the claim for the mobility component but allowed the claim for the care component. However, they allowed the claim for the care component from
24 March 1994 only so far as 17 April 2000.

The grounds of appeal are to be found at pps. 100/103 and the appeal is supported by the AO. Before considering the substantive appeal, there is a procedural matter which I should consider.

It is stated that since the record of the tribunal's proceedings on 18 April 1995 is unsigned in that while there is the chairman's typed signature he has not himself signed it in manuscript, it is therefore invalid. The AO, in para. 15 of his submissions to me dated 3 October 1995, from which he has now resiled, relying on a passage from para. 3 of CSDLA/49/1994, submits that, thereby, the tribunal erred in law. I raised a direction concerning this point. In the direction, I noted that a form DAT28 in manuscript which clearly was signed by the chairman was with the papers. That form was possibly not particularly helpful, since the chairman recorded in boxes 1, 2 and 4 the words "Dictated by the chairman". The full typed up version does bear the chairman's typed signature.

I would accept that if there are two versions of the record with differences, it is of course essential that the Commissioner is given the correct record, and the obvious method of authentication would be by the manuscript signature of the chairman. But, unlike the Commissioner in CSDLA/49/1994, I do not consider that this is an essential requirement and I prefer the approach of the Commissioner in paras. 17 and 18 of CCS/14/1994, a decision which was signed some nine days after the Scottish decision of CSDLA/49/1994. There is no suggestion in this case that the typed record may be an incorrect transcription of the tape and the point has not been taken. But, in any event, under English law a signature does not necessarily need to be in manuscript form provided that the party adopts the printed name as his own, see e.g. Schneider v. Norris 2M and S 286, where the name of a seller was printed on a bill of parcels but he wrote thereon the name of the purchaser. That was held to be an adoption by the seller of his own name and a signature within the Statute of Frauds. In this case, the chairman gave leave to appeal. He must have had the typed up record before him and I think it is a proper inference to make that, by giving leave, he adopted his typed signature on the record as being his own. I repeat that this is not a case where there are two conflicting copies of the record. In any event, I raised a direction aimed at this point and the AO, in view of CCS/14/1994, accepted the validity of the typed up record. I take the claimant's representative's silence on the point as tacit acceptance.

The claimant submits that, in their reasons, the tribunal noted that the claimant was "apparently able to walk satisfactorily to his flat from the road without too much difficulty". He submits that that is both irrelevant and inaccurate. It was also made in breach of the rules of natural justice. So far as the inaccuracy is concerned I refer to the findings of fact by the tribunal "He is able to walk from the road to the flat where he lives which is five steps from the road and thirteen steps up." The AO submits however it is clear that the tribunal reached their decision on the claimant's ability to walk outdoors as required by regulation 12(1)(a)(ii), and it follows that the tribunal have not breached the rules of natural justice. That I accept. Diplock LJ formulated the rules concerning breaches of natural justice in R v. Dep. Ind. Injuries Commissioner ex parte Moore [1965] IQB 456 as follows:

(1) The tribunal must not be biased. There is no suggestion of that here whatever.

(2) The decision must be based on evidence. There was evidence as found by the tribunal.

(3) The tribunal must listen fairly to the contentions put to them. There is no suggestion that they did not.

The relevance of the rules of natural justice are really only in respect of procedural matters, and I am satisfied that they have no part in this case.

I now come to the real point. In his submissions to me, the AO notes that the DAT recorded the evidence of the EMP that the claimant could walk 100 to 200 yards before severe discomfort but would probably halt after 100 yards. They also noted the claimant's own estimation of 20 yards at T18 though at T43 his estimate was 70 yards. But the tribunal did not make any findings on why the claimant had to halt after 100 yards, in order to determine whether the halt was due to the onset of severe discomfort or whether the claimant was already suffering severe discomfort. Walking managed only with severe discomfort must be ignored and the DAT's failure to make findings on the reason for the claimant's halts walking outdoors constitutes an error of law. I accept that submission. Did the claimant have to halt after 100 yards because of the onset then of severe discomfort, or was he walking with severe discomfort before that distance had been achieved, but any further distance over the 100 yards was quite beyond him?

Finally, there is the point that it is not clear why the tribunal limited in time the award of the care component. They gave no reasons therefor. The re-hearing in front of the new tribunal will be a complete re-hearing at which new evidence can be admitted. The new tribunal can look at the care award and if they choose they can impose a time restriction but, if they do so, they should clearly state why they have done so.

My decision is therefore as set out in para. 1 above.

Date: 17 June 1996 (signed) Mr. J. M. Henty

Commissioner