Application No: A45/03-04(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Application by the above-named for
leave to appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 14 March 2003

DETERMINATION OF THE SOCIAL SECURITY COMMISSIONER

I refuse leave to appeal.

REASONS

Having considered the circumstances of the case I am satisfied that the application can properly be determined without a hearing.  

There is no arguable case that the Tribunal’s decision was wrong in law.

The Tribunal was properly constituted.  The Tribunal analysed the evidence rationally and in accordance with common sense.  It made all necessary findings of fact material to its decision.  There was evidence to support each of those findings.  On those findings of fact, the Tribunal was entitled to make the decision that it did.  There is nothing to suggest that the Tribunal misunderstood or misapplied the law.  The full statement of the Tribunal’s decision contains a detailed explanation of the reasons why the Tribunal made the decision that it did.  There was no breach of the principles of natural justice.
In particular:

(i)	If there was an error in relation to the identification of Dr MacF….. as being from the Pain Clinic, such misidentification of the source of evidence does not vitiate the Tribunal’s decision in the circumstances.  In any event the error is not one of substance as it does not affect the correctness of the Tribunal’s decision – that the claimant is entitled to the lowest rate of the care component.

(ii)	Even though Dr MacF…..’s report post-dates the date of the decision maker’s decision it is still relevant in relation to the deteriorating condition of the claimant, as the Tribunal is entitled to draw the obvious inference from the evidence that, if the claimant’s needs are currently minimal in a deteriorating situation, the needs were even less at the relevant date.

(iii)	As set out in Commissioner’s Decision C12/03-04(DLA), paragraph 39 in particular, a Tribunal, in circumstances such as pertain in the present appeal, has no power to take into consideration circumstances not obtaining at the date of the decision.

(iv)	Neither party sought an adjournment at the hearing.  In addition only a conditional request for an adjournment was made in the claimant’s written submission.  In any event the request was only to obtain evidence of an alleged deterioration which was dealt with in other evidence before the Tribunal and was concerned with a period which was outside the Tribunal’s remit.  In addition the Tribunal was entitled to conclude that the Department had dropped its proposal for an adjournment (set out in the appeal papers) as the presenting officer did not refer to the matter at the hearing.  Accordingly it is not reasonably arguable that the Tribunal erred in law by not adjourning the hearing of the appeal.

(v)	It is not reasonably arguable that the claimant was denied a fair hearing on the grounds that a copy of her application for leave to appeal was not sent to the Social Security Agency, as Article 14(3) of the Social Security (Northern Ireland) Order 1998 cannot be applicable as the Department does not support the application for leave and therefore would never have been in a position to support an Article 14(3) set aside.  In addition, even if the application ought to have been referred to the Agency, any injustice from the lack of reference is remedied by this application for leave to appeal to a Commissioner.

(vi)	Even if the Tribunal Appeal Service erred in law by not providing the Agency with a copy of the claimant’s grounds of the application for leave to appeal, such a defect cannot be remedied by a Commissioner, who does not have the powers of a High Court Judge to rectify such matters under a judicial review jurisdiction.  

It must be borne in mind that a tribunal is entitled to draw its own inferences and reach its own conclusions and however profoundly a Commissioner, as an appellate tribunal on an appeal from a tribunal on a point of law, may disagree with its views of the facts, he or she is not able to upset the tribunal’s conclusions unless:

(a)	there is no or no sufficient evidence to found them – which may occur when the inference or conclusion is based not on any facts but on speculation by the tribunal, or

(b)	the primary facts do not justify the inference or conclusion drawn but lead irresistibly to the opposite conclusion, so that the conclusion reached may be regarded as perverse.

In this case I neither express disagreement nor agreement with the Tribunal’s inferences and conclusions.  However, even if I were in disagreement, that does not render the decision erroneous in point of law as the Tribunal’s conclusions are based on sufficient evidence, its assessment of the evidence was reasonable and the primary facts found justify the conclusion.

(Signed):		J A H MARTIN  QC
			CHIEF COMMISSIONER

(Dated):		26 February 2004