UK Social Security and Child Support Commissioners' Decisions

 


[2006] UKSSCSC CDLA_83_2006 (20 April 2006)

DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is given under section 14(8)(b) of the Social Security Act 1998. It is:

I SET ASIDE the decision of the Colchester appeal tribunal, held on 6 June 2005 under reference U/42/132/2005/00382, because it is erroneous in point of law.

I REMIT the case to a differently constituted appeal tribunal and DIRECT that tribunal to conduct a complete rehearing of the issues that are raised by the appeal and, subject to the tribunal's discretion under section 12(8)(a) of the 1998 Act, any other issues that merit consideration. In particular:

The appeal tribunal must investigate and determine the claimant's entitlement to a disability living allowance on his claim that was treated as made on 25 June 2004. In doing so:

The appeal tribunal must not take account of circumstances that were not obtaining during the period from the date of claim to the date of the decision under appeal (8 October 2004): see section 12(8)(b) of the Social Security Act 1998. Later evidence is admissible, provided that it relates to the time of the decision: R(DLA) 2 and 3/01.

The evidence shows that there may be variation in the claimant's disablement. The appeal tribunal must investigate this issue. It must then decide whether there is variation. If there is, the tribunal must make findings on the range and frequency of the variation. It must then take an overall view of the claimant's disablement in accordance with the decisions of the Commissioner in R(A) 2/74, paragraph 35 and of the House of Lords in Secretary of State for Work and Pensions v Moyna, reported as R(DLA) 7/03.

History and background

2. This case came before me with leave granted by Mr David Turrell, a district chairman of tribunals. I gave directions for observations, which have now been received. The Secretary of State supports the appeal and the claimant's representative has not commented further. I accept the arguments that the tribunal went wrong in law, although not for the reasons stated in the grounds of appeal or the Secretary of State's observations.
3. The claimant's claim pack identified a series of problems with care and mobility, which he attributed to back and leg pain. The Secretary of State obtained a report from his GP and advice from the decision-maker's medical services. The decision-maker then refused the claim. The claimant exercised his right of appeal and produced various medical letters and reports. The Secretary of State, in accordance with standard practice, considered whether to revise the decision refusing the claim, but did not do so. Advice was again obtained from medical services, which referred to the intermittent nature of back pain. The appeal proceeded to hearing, but was dismissed.

How the tribunal went wrong in law

4. The tribunal relied on the claimant's own account of how he had managed to come to the tribunal on the day of the hearing. The chairman recorded this evidence in her record of proceedings. She repeated it in her full statement of the tribunal's decision and added: 'He did not claim that today was especially good day and that he was not normally so active.' That is correct, so far as the record of proceedings shows, and (I believe) is not disputed by the claimant's representative. But neither does the record show that the claimant was asked about this. The best that the record shows is that he did not volunteer any information on this. Later the chairman commented that the evidence was 'unforced and convincing'.
5. I consider that the tribunal was wrong to rely solely on this evidence of the claimant's performance on a particular day. I accept that the tribunal has attempted to show that the evidence was indicative of claimant's abilities generally, but do not consider that it has succeeded in doing so. As I have just said, neither the record of proceedings nor the full statement of the tribunal's decision shows that the claimant was asked about this. All they show is that he did not volunteer any information about it. Moreover, there was medical evidence that back pain is intermittent, which the tribunal would surely know anyway. Given that evidence, the tribunal should have made some inquiries as to the variation that the claimant experienced. It should not have left the claimant to volunteer this, because he may not have realised the importance of this evidence, especially as he could not have known how the tribunal was going to assess its significance. In short, the tribunal went wrong in law by not making sufficient inquiries into the claimant's disabilities.
6. I will state briefly for the record why I do not accept the Secretary of State's observations. These support the appeal on the ground that the tribunal did not refer to other evidence and did not make sufficient findings of fact on the claimant's mobility. As to the other evidence, if the tribunal's approach of relying on the claimant's oral evidence had been correct, it would have been sufficient to say that the claimant's own account was reliable and contradicted the other evidence. As to the findings on mobility, again if the tribunal's approach of relying on the claimant's oral evidence had been correct, that evidence would have constituted its findings. There was no reason for the chairman to write it all out again as findings. However, as I have said, the tribunal's approach was not correct.
7. I will also state briefly for the record why I do not accept one of the grounds of appeal. The claimant's representative argued that the tribunal should have disregarded the evidence that the claimant used the stairs at the tribunal venue, because the lift there has been out of order for some time and some claimants had chosen to cope with the stairs rather than face a delay or a journey to another venue. There is no basis in law for disregarding this evidence. If the claimant managed the stairs, it is irrelevant why he did so. The time and manner in which he managed them may be relevant, but these factors to the significance of this evidence, not its admissibility.

Mr Turrell's question

8. On granting leave, Mr Turrell asked:

'The tribunal makes it clear that it relied on the claimant's oral evidence. Is it an error in such circumstances not to deal with medical evidence adduced by the claimant that contradicts his oral testimony?'

9. As a lawyer and an experienced chairman of tribunals, Mr Turrell will not be surprised that my answer contains the words 'it all depends'. The tribunal has to assess all the evidence as a whole and decide what significance to attach to each piece of it. The tribunal is entitled to decide the case on the basis of the claimant's oral evidence in preference to any other evidence, including medical evidence. But: (i) that evidence must be reliable, relevant and comprehensive; and (ii) the full statement of the tribunal's decision must show that the oral evidence satisfies those criteria.
10. A claimant's evidence may not be reliable for a number of reasons. Here are some examples. A claimant's judgment may be poor. Time, speed and distance are notoriously difficult to judge. Or a claimant's perception may be distorted. For example, a mental health problem may impede a claimant's understanding. Or the claimant may be in denial about, or unwilling to admit to, disablement. For example, underreporting of disablement is a recognised feature of evidence from the elderly. And many people would be embarrassed to admit to incontinence.
11. A claimant's evidence may not relevant for at least two reasons. First, it may not relate to the time of the decision under appeal, as required by section 12(8)(b) of the Social Security Act 1998, which is interpreted and applied by R(DLA) 2 and 3/01. Second, it may not relate to the issue that the tribunal has to decide. For example, it may show what the claimant manages to achieve unaided rather than the help that the claimant reasonably requires.
12. And a claimant's evidence may not be comprehensive because it does not disclose the full range of matters that are relevant to the issue before the tribunal. This case is an example of the evidence not being comprehensive.

Disposal

13. I allow the appeal and direct a rehearing.

Signed on original on 20 April 2006

Edward Jacobs Commissioner