UK Social Security and Child Support Commissioners' Decisions

[1997] UKSSCSC CDLA_16902_1996 (24 June 1997)


 


CDLA/16902/1996


The Social Security and Child Support Commissioners

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992
SOCIAL SECURITY ADMINISTRATION ACT 1992

APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

COMMISSIONER P L HOWELL

Claim for:
Appeal Tribunal:

1. My decision is that the decision of the disability appeal tribunal given on 16 July 1996 on this claim for disability living allowance was erroneous in point of law. I set it aside and refer the whole case to a differently constituted tribunal for reconsideration.

2. The claimant in this case is a lady now aged 36. She suffers from asthma, which is aggravated by her habit of smoking and accompanied by periods of depression, irritable bowel syndrome and various other problems. According to evidence produced just before the date of the tribunal hearing she also suffers from arthritis in her spine although this condition had not been referred to in the original claim document she submitted or in the reports from her own GP. She has made numerous claims for disability living allowance and this appeal arises out of one made on 21 August 1995 which was I think her fourth. It was rejected as the others had been, and the rejection was confirmed on review and upheld by the tribunal on 16 July 1996. She appeals against that tribunal's decision with the support of the adjudication officer on the grounds that the reasons for the adverse conclusion against her claim have not been stated adequately in the tribunal's decision. Consequently she is unable to see, as she is entitled to do, that all material issues in her case and the evidence put forward have been properly and adequately considered.

3. There appears to have been virtually no evidence before the tribunal to suggest that there was any real ground for a claim to the care component of disability living allowance, apart from some history of threats or attempts at self-harm which they held, rightly in my view, insufficient to show a need for continual supervision to prevent substantial danger. The claimant's own appeal letter dated 26 March 1996 at page 59 made clear that she was only seeking to appeal against the decision turning her down for the mobility component, and referred for the first time to arthritis as well as asthma as the reason why she considered herself entitled to the mobility component on the ground of virtual inability to walk. Her letter referred specifically to pain in her legs caused by walking for even a short distance, which was so bad that it even prevented her sleeping. Her case before the tribunal was also supported by a medical report dated 12 July 1996 from a different doctor from the GP who had given previous written reports, confirming expressly that she was suffering from arthritis of the spine for which she was at the moment waiting for treatment to see an orthopaedic surgeon, and continued "she finds it very difficult to walk because of her arthritis she can walk less than 50 metres without suffering discomfort".

4. The record of the tribunal's proceedings on 16 July 1996 at pages 60-62 shows that the claimant was present and that a representative appeared on her behalf, but gives no details whatever of the evidence presented to the tribunal or of the contentions placed before them. The tribunal's findings of fact on page 60 record inter alia:

"The appellant was born on 5/4/61 and suffered from arthritis of the spine. The appellant could walk less than 50 metres without discomfort. The appellant suffered from asthma for a considerable length of time. She also suffered from depression and had attempted to take her own life".

Those findings of fact reflected the most recent medical report to which I have referred, although the tribunal record does not say what they were based on and leaves it quite impossible to see what other evidence the claimant herself did or did not give about her own difficulties with walking, or the extent of any challenge to it by the adjudication officer.

5. In the absence of any record of the evidence before the tribunal it is extremely difficult for me to assess whether the tribunal's conclusion in para 2 on page 61 that

"there was no evidence before the tribunal that the appellant was unable or virtually unable to walk"

was based on a proper consideration of the material placed before them or not. I can only say that it appears to me a gross oversimplification on the part of the tribunal if they did not regard the most recent medical evidence which according to their own explicit finding of fact they appear to have accepted, as not amounting to evidence before them tending to show virtual inability to walk in terms of the statutory criteria in reg 12 Disability Living Allowance Regulations 1991 S.I. No 2890.

6. Their statement also appears to me to disregard the claimant's own evidence about suffering from severe pain as a result of what she had now been told was arthritis on walking for even a short distance. The weight to be attached to such evidence, given the earlier medical evidence which it appeared to some extent to contradict, was of course a matter for the tribunal; but I do not think it could be right for them to have said as they did that there was no evidence before them at all to show that the claimant might satisfy the statutory conditions.

7. I therefore accept the submission made by the claimant's representative and concurred in by the adjudication officer that the tribunal's reasons for rejecting the appeal on the mobility component were inadequately stated. In view of the medical evidence that the claimant could walk less than 50 metres without suffering discomfort from her arthritis, their failure to make any findings of their own about the distance she could in fact walk without discomfort or to explain why they rejected the most recent evidence as inadequate was in my judgment erroneous in point of law.

8. That makes it unnecessary for me to determine the claimant's further ground of appeal on page 66 para 4, that the tribunal authorities failed to provide a proper record of the evidence on which the decision was based; but I will comment on it as the point is of general importance. The failure to provide a proper legible record of the evidence (never more than partly remedied in this case by the later inclusion of two manuscript pages 60c-60d in the appeal file, not self-evidently complete and requiring some effort to decipher) is in my judgment a highly unsatisfactory practice. It is particularly so in a case such as this where the whole question on the appeal is whether the tribunal gave adequate and properly reasoned consideration to the issues and evidence in fact put before them.

9. A proper record of the tribunal's proceedings, from which it can be seen that the claimant's case has been given its due consideration and from which the result can be understood, is a requirement of the general law that does not depend on the terms of subordinate legislation: cf. R(A)1/72. Save perhaps where the whole case depends on a simple point of law and no facts are in issue, this requirement is not met without a proper record of the evidence taken, from which it can be seen how the tribunal's findings and conclusions are related to what was placed before them: R(SB) 8/84 para 25, CSSB 212/87 (*6/88) para 3. A tribunal record in the truncated form supplied here without a clear, complete and immediately legible record of the material points put in evidence is almost bound to fall short of this standard and therefore to have to be set aside as erroneous in law. The practical wisdom of including both in the same document is demonstrated in this case by the tribunal's comment in their record of reasons about there being no evidence of the claimant's virtual inability to walk. I find it very hard to see how this could have been written by a person who actually had to mind the evidence on the point referred to in the separate manuscript note produced later.

10. The appeal is allowed and the case referred accordingly.

(Signed)

P L Howell
Commissioner

24 June 1997

 

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