UK Social Security and Child Support Commissioners' Decisions

Decision

1. My decision is set out in paragraph 2 below. The effect of that decision is that, although the appellant has technically won his appeal, he is no better off as a result of having done so.
2. I allow the claimant's appeal. The decision given by Lincoln appeal tribunal under reference U/42/040/2006/00383 on 19 July 2006 is wrong in law. I set it aside and I give the decision I consider the tribunal should have given, which is to the same effect as the one it actually gave, namely that the appellant is not entitled to any rate of either component of disability living allowance from and including 4 October 2005.

Reasons

Introduction

3. This appeal is about whether the appellant is entitled to the higher rate of the mobility component of disability living allowance. On 5 December 2005, the Secretary of State decided that he was not. The tribunal subsequently confirmed that decision. The appellant now appeals to the Commissioner with my leave.

The appellant and the claim for disability living allowance

4. On 5 December 2005, the appellant was 51 years old. He suffers from peripheral vascular disease with claudication of his right leg.
5. He claimed disability living allowance on 4 October 2005. In his claim pack, he asserted mobility needs that, if accepted, might (just) have supported an award of the higher rate of the mobility component. His estimate of his walking ability was that he could walk 55-70 yards at about average speed before the onset of severe discomfort but that he would be in continuous discomfort and pain if he were to walk further than that initial distance. He also estimated that it would take him 2-3 minutes to cover that distance, which implies a walking speed of between 0.6 and 1.2 miles an hour. That, in turn, suggests that the appellant tends to underestimate distance or average walking speed (or both), or to overestimate time.
6. The appellant's estimate of his walking distance was supported by the report of a Medical Services doctor who had examined him for the purposes of the personal capability assessment on 7 July 2005 and concluded that he could not walk for more than 50 metres without stopping or severe discomfort.
7. However, the decision maker preferred the evidence of the appellant's GP, which was to the effect that—even on a bad day—he could walk for about 200 yards before the claudication would cause problems.
8. The claim pack did not suggest that the appellant might be entitled to the lower rate of the mobility component or to the care component and he subsequently confirmed to the tribunal that he did not wish it to consider anything other than the higher rate of the mobility component.

The witness statements

9. In addition to the evidence mentioned above, the tribunal had the benefit of an extensive written submission from the appellant. This included detailed notes from the appellant dealing with various aspects of the evidence. Those notes also contained evidence that suggested the appellant could walk further than was stated in the claim form. The submission was accompanied by four witness statements, two from Ms H and one each from Mr M and Mr S. Ms H's first witness statement clarified that she was not, as had been asserted in passing by the Medical Services doctor, the appellant's "girlfriend". Ms H's second statement and the statements from Mr M and Mr S were in the following identical form:

'1. All matters stated within this statement are within my own knowledge unless stated otherwise, and where stated otherwise, I state the source of my information and belief.

2. I have read [the appellant's] notes regarding the events and circumstances that he described, which occurred between December 2005 and July 2006.

3. I confirm that to the best of my knowledge the described events and circumstances are a true and accurate representation of the facts relating to that period.

4. I believe that the facts stated in this witness statement are true.'

10. The tribunal dealt with those statements as follows:

'14. There were three statements in common form from Mr S, Mr M and Ms H. In each case the statements purported to confirm that to the best of the maker's knowledge the events described in the Claimant's notes were true and accurate. Unfortunately statements such as these are known to the legal profession by the pejorative term of "oath helping". Despite the best intentions of the makers there is no way of telling which of the Claimant's comments the maker of each statement knew to be true from their own knowledge and which the statement maker believed to be true simply because they know and trust the Claimant. Statements such as this are of no evidential value.'

The grounds of appeal

11. The appellant summarises his grounds of appeal as follows:

'The tribunal have failed properly to apply the Law concerning the disregard of any distance walked whilst in severe discomfort.

The Tribunal has indulged in conjecture, prejudiced assumptions, and groundless accusations insulting my own integrity, and that of witnesses to the facts.

The Tribunal has insulted my GP's personal and professional integrity.

The tribunal has rejected valid evidence favourable to my case, and been very selective in the evidence it has accepted and the way they have chosen to interpret it.'

12. I do not accept any of those grounds. On the contrary, I agree with the District Chairman who initially refused leave to appeal that, except as set out in paragraphs 15 to 22 below, the tribunal dealt fully and appropriately with all the points raised in the appeal, including the issue of severe discomfort.
13. In particular, the tribunal has not insulted anyone or impugned anyone's integrity. It accepted the appellant's evidence (taken as a whole) and that of his GP but decided on the basis of that evidence, that the appellant was not virtually unable to walk. In my judgment, that decision was correct. I understand why the appellant believes the tribunal insulted his witnesses of fact, but that belief has arisen as a result of a misunderstanding of the term "oath-helping".
14. It is true that the tribunal rejected the evidence of the Medical Services doctor but it was entitled to do so. It was for the tribunal to assess the evidence of fact as it saw fit and reach its conclusions accordingly. The fact that the appellant disagrees with those conclusions does not mean that the tribunal has misapplied the law.

Reasons for setting aside the tribunal's decision

Oath-helping

15. Nevertheless, I have set the tribunal's decision aside because I consider that the passage quoted at paragraph 10 above, and in particular the reference to "oath helping", discloses an error of law.
16. The rule against oath-helping is chiefly concerned with the proper function of expert testimony in criminal proceedings. The principle is that expert evidence should not normally be used solely to bolster the credibility of a witness of fact (at least in cases where credibility has not been specifically attacked). That is because the assessment of the credibility of witnesses is a matter for the jury and not for expert evidence.
17. The leading case in England and Wales is R v. Turner [1975] Q.B. 834 (CA). Mr Turner was charged with murdering his girlfriend. His defence was provocation. At the trial, he had sought to adduce psychiatric evidence that, although he was not violent by nature, his personality was of a type such that he could have been provoked in the circumstances that led to the killing and that he was likely to be telling the truth. The trial judge excluded that evidence and Mr Turner was convicted of murder. The Court of Appeal upheld the judge's ruling. Giving the judgment of the Court, Lawton LJ stated (at 841-842):

'An expert's opinion is admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary. …

… Jurors do not need psychiatrists to tell them how ordinary folk who are not suffering from any mental illness are likely to react to the stresses and strains of life. It follows that the proposed evidence was not admissible to establish that the defendant was likely to have been provoked. The same reasoning applies to its suggested admissibility on the issue of credibility. The jury had to decide what reliance they could put upon the defendant's evidence. He had to be judged as someone who was not mentally disordered. This is what juries are empanelled to do. The law assumes they can perform their duties properly. The jury in this case did not need, and should not have been offered, the evidence of a psychiatrist to help them decide whether the defendant's evidence was truthful.'

The law in Scotland is similar, see HM Advocate v. Grimmond 2002 S.L.T. 508 at 512, although the rule there exists as a particular instance of the general rule that evidence of facts affecting the credibility of a witness are inadmissible unless they also relate directly to the issues in the trial.

18. Turner was followed in R. v. Robinson [1994] 3 All E.R. 346 (CA). Mr Robinson was charged with the indecent assault and rape of a 15-year-old girl who suffered from what was described, in the more robust language of the time, as "mental retardation". The trial judge allowed an educational psychologist to give evidence for the prosecution that the complainant remembered important matters quite well, was not suggestible and, having a limited imagination, was not liable to fantasize. Mr Robinson was convicted. Quashing that conviction, the Court of Appeal held (at 374-375):

'the Crown cannot call a witness of fact and then, without more, call a psychologist or psychiatrist to give reasons why the jury should regard that witness as reliable. …

… if the defence propose to call an expert witness to say that a witness of fact for the Crown should be regarded as unreliable due to some mental abnormality outwith the jury's experience, then, depending on the precise issue, it may be open to the Crown to call an expert in rebuttal, or even (anticipating the defence expert) as part of the prosecution case. It may even be open to the Crown to rebut by expert evidence, a case put only in cross-examination that a prosecution witness is unreliable in a particular respect arising from mental abnormality. Much may depend upon the nature of the abnormality and of the cross-examination. If such evidence is admitted, great care would need to be taken to restrict the expert opinion to meeting the specific challenge and not to allow it to extend to "oath-helping."

However, here … no specific case was put in cross-examination that the complainant was peculiarly suggestible or given to fantasise as a result of her mental impairment. There was evidence of questioning by the mother and by the policewoman constable of the complainant and the limited extent of the cross-examination about that has been summarised above. No evidence was to be called for the defence impugning the complainant's reliability. In those circumstances, we consider that [the educational psychologist's] evidence should not have been admitted.'

19. The rule against oath-helping is thus a technical aspect of the law of evidence in adversarial, criminal, proceedings. The policy behind it is to avoid burdening the jury with evidence that might confuse it (because it potentially complicates the proceedings by raising collateral issues about the credibility of witnesses that are not directly relevant to the dispute) or that usurps its role as the sole judge of fact.
20. Such proceedings are very different from civil proceedings about entitlement to a social security benefit before an appeal tribunal with inquisitorial jurisdiction. That difference means that to seek to introduce the rule against oath-helping into social security adjudication is contrary to principle:

(a) As the above cases make clear, the prohibition forms part of the rules about the admissibility of evidence. As Commissioners and the Courts have consistently held for over 50 years, appeal tribunals are not bound by the rules of evidence that apply in adversarial proceedings (see, for example, CDLA/2014/2004 and the list of cases cited in paragraph 10 of that decision). Before an appeal tribunal, if evidence is relevant then it is admissible. The tribunal's task is not to decide whether to consider relevant evidence but rather to decide how much, or how little, weight should be attached to it.

(b) It is no coincidence that the cases discussed above involved criminal trials before a jury. In such proceedings it is possible to ensure that the jury never hears the inadmissible evidence. But in an appeal tribunal, there is no neither a jury nor any equivalent division between the judge of law and the judge of fact. Although they will bring different experiences and expertise to their task, all three members of the tribunal in a disability living allowance appeal are equal judges of all disputed issues, both law and fact. If oath-helping evidence were to be excluded, all the members of the tribunal would nevertheless have to consider the disputed evidence in order to determine whether it should properly be so categorized. By doing so, they would inevitably become aware of that evidence. Even if they formed the view that it was oath-helping, it would be too late to exclude it. Adjournment would not solve the problem. If the same tribunal heard the restored appeal, then nothing would have been gained from the adjournment. But if the second tribunal were differently constituted, it would not be bound by the first tribunal's decision about the nature of the evidence and would have to conduct a complete re-hearing of all the issues, including that one. That, in turn, would involve all the members of the second tribunal considering the disputed evidence and so on, potentially ad infinitum.

21. Further, the policy reasons for excluding oath-helping evidence in criminal trials have no application to proceedings before an appeal tribunal:

(a) Unlike juries, tribunals are not composed of lay people. Tribunal members hold judicial office. They can therefore be trusted not to allow their role to be usurped by any particular witness.

(b) The perceived risk that, if a tribunal were to receive oath-helping evidence, it might allow itself to be sidetracked by collateral issues of credibility is not real. Oath-helping evidence is a sub-category of evidence that relates solely to credibility. For the reasons, given above, all such evidence is admissible so long as it is relevant to the issues before the tribunal. Experience shows that this does not in practice lead to judicial time being devoted unnecessarily to collateral issues. The expertise of the tribunal chairman (taken together with the need for the tribunal to get through its list) normally prevents that.

22. As well as being contrary to principle, the adoption of the rule against oath-helping in this jurisdiction would also be unhelpful in practice:

(a) The fact that evidence is oath-helping does not mean that it is untrue or irrelevant (which is why the tribunal was not insulting the appellant's witnesses by so describing their statements). Oath-helping evidence is inadmissible in adversarial proceedings despite the fact that it is relevant and irrespective of its veracity.

(b) The role of an appeal tribunal is not merely to decide between two or more competing versions of events. So far as is practical, it must seek to arrive at the correct decision so that:

i) those claimants who are entitled to benefit receive it at the correct rate and for the correct periods; and

ii) those claimants who are not entitled to benefit do not receive it.

That task is often a difficult one and the complexity of social security law means that the tribunal will often receive little help from the parties. In those circumstances, it is not sensible arbitrarily to exclude evidence that is relevant to the issues the tribunal has to decide. Once the oath-helping evidence has been heard, it must still be evaluated and—if it is appropriate to do so in a particular case—the tribunal remains entitled to attach little or no weight to it. In other cases, however, the tribunal may find that oath-helping evidence assists it with its task. In those cases, it would not be helpful to deny the tribunal that assistance.

The tribunal's decision

23. In my judgment, it was not technically correct to describe the statements from Ms H, Mr M and Mr S as oath-helping. Although they were intended to help the appellant's case, they did not seek solely to bolster his credibility. The witnesses did not, for example, say that they knew the appellant to be an honest man or one who, by temperament, was unlikely to be exaggerating his problems. Rather the statements purport to confirm, however inadequately, the witnesses' own knowledge of the specific facts asserted in the claimant's notes. The statements should therefore properly have been characterised—and dealt with—as ordinary corroborative evidence. The tribunal was wrong in law to characterise them as oath-helping.
24. But even if the tribunal's view that the statements were oath-helping was correct, the use of that phrase implies that the tribunal considered those statements to be inadmissible. For the reasons given above that, too, is an error of law.
25. It is possible that the tribunal would have accorded no weight to those statements even if it had not formed the view that they were oath-helping: if one disregards the reference to oath-helping, that is the natural meaning of the passage quoted at paragraph 10 above. However, it is also possible that if the tribunal had not characterised the evidence as it did, it might have dealt with it differently. As I cannot be certain that the tribunal would have reached the same decision even if it had not gone wrong in law, I must set its decision aside.

Reasons for the Commissioner's substituted decision

26. I am in no doubt that this is a case in which it is appropriate for me to substitute my own decision to the same effect as that of the tribunal. I adopt the findings of fact made by the tribunal, which are soundly based on the evidence as a whole. Except in relation to the statements of Ms H, Mr M and Mr S (and the reference to oath-helping in paragraph 15), I also adopt its reasoning, which I regard as compelling.
27. As far as those statements are concerned, I attach no weight to those of Mr M and Mr S and only minimal weight to those of Ms H.
28. The three identical statements are in very general terms and are in each case subject to the qualification that the facts asserted are true 'to the best of my knowledge'. That, of course, raises the question of how good the knowledge of each witness is. But having raised that question, none of the statements goes on to answer it.
29. The statements of Mr M and Mr S do not attempt to answer it at all. I have no way of knowing how long, or how closely, those two gentlemen have known the appellant or how they come to be acquainted with the circumstances described in the appellant's notes, many of which deal with such personal matters as what he has said to, or been told by, his doctors. In the absence of further detail, I am unable to regard the statements of Mr M and Mr S as adding anything to the appellant's notes.
30. The position of Ms H is slightly different because of her additional statement. This tells me, and I accept, that Ms H is not the appellant's girlfriend, that she is not in an intimate relationship with him, that she has known him for more than nine years, and that they are 'close and firm friends on a platonic level'. But that is not sufficient to enable me to identify which of the circumstances in the appellant's notes she has personal knowledge of and which she knows merely because the appellant has informed her about them. Except to the extent set out in the next paragraph, I therefore cannot accord any weight to Ms H's evidence.
31. Ms H also states that she accompanied the appellant to the personal capability assessment medical "as a friend, helping a friend, because of his inability to walk any reasonable distance". That quoted statement is of probative value because it represents the observations of someone who knows the appellant well on a matter that is directly relevant to the issue in this appeal. Even so, I do not regard it as having any significant weight. Ms H does not say what she considers to be a "reasonable" distance. Neither does she address any of the other criteria that I have to take into account. Ms H's evidence is therefore consistent with that of the appellant himself and his GP, which I accept. That evidence establishes that, although the appellant's walking ability may be restricted, he is not virtually unable to walk.

Conclusion

32. For those reasons, my decision is as set out at paragraph 2 above.

(Signed on the original)

Richard Poynter Deputy Commissioner 19 November 2007