Decision No: C43/03-04(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 13 October 2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by me, by the claimant against a decision dated 13 October 2003 of an Appeal Tribunal sitting at Londonderry.  The Tribunal was dealing with an appeal from a decision of a Departmental decision maker superseding but not changing an earlier decision under which the claimant was awarded highest rate care component of Disability Living Allowance (DLA) from 21 May 2002 to 22 February 2005 but was not awarded mobility component.  On appeal the Tribunal awarded the low rate of the mobility component from 5 March 2003 to 22 February 2005.  It did not alter the award of care component.

2.	Both the claimant and the Department have submitted that the said Tribunal’s decision is in error of law.

3.	I am setting this decision aside on two grounds, both of which the parties agree to be errors of law by the Tribunal: -

(a)	the Tribunal, in awarding the low rate of the mobility component, did so in part because it wished to ensure that the claimant did not “become too isolated.”  This is not a factor which forms any part of the conditions for entitlement to the low rate of the mobility component as set out in section 73(1)(d) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992.  The Tribunal erred in law in taking same into consideration when deciding if the conditions were met;

(b)	the Tribunal appeared to accept that the claimant’s condition deteriorated in January 2003 and on the basis of this deterioration considered she was entitled to the lower rate of the mobility component once the qualifying period of three months (provided for by section 73(9) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992) was served.  However it awarded the lower rate of the mobility component from 5 March 2003.  The earliest date by which the 3 months could have elapsed was 1 April 2003. There is therefore an error of law in the application of the start date.

4.	The claimant put forward many other grounds of appeal.  However, as I am remitting this case to another Tribunal for rehearing and redetermination, it is not necessary for me to comment on many of these.  Nor is it necessary that I comment in detail on those which I do mention.  However, in order that there be no confusion or misunderstanding at the new hearing I would wish to give certain guidance: -

(1)	It is a matter for the Tribunal to reach its own view as to the reliability of any evidence.  It is entitled to accept or reject any evidence and does not err in law in so doing.

(2)	Where a tribunal makes clear that it does not believe a witness’ evidence or considers that witness to be exaggerating, that will usually be sufficient to explain its assessment of evidence.  There is no universal rule that a tribunal need go further and explain why it does not believe the said evidence.  At times this may be required.  However, the only standard for reasoning, is that the reasons satisfactorily explain the decision to a reasonable person reading it.  R3/01(IB)(T) – especially paragraphs 22 and 23 provides guidance.

(3)	It is for each party to an appeal to present that party’s evidence to the Tribunal.  The Tribunal will then consider the relevant evidence.  It is not an error of law for the Tribunal to consider relevant evidence presented to it.  If another party considers that evidence is valueless in some way it may put to the Tribunal its views on that evidence and may seek to counter it by other evidence.  That does not, however, undermine the right of each party to produce relevant evidence.  In this case the claimant has objected to the Department including in its evidence to the Tribunal a report from an EMP which the claimant states was “discredited” and which she also states the Department had agreed not to produce.  That is a matter between the Department and the claimant.  If, however, the Department produces the evidence to the Tribunal it is not generally an error of law for the Tribunal to consider it.  The claimant, of course, has the right to attack or counter that evidence.  It is not however an error of law for the Tribunal to consider evidence which is before it and may indeed be an error for it not to do so if that evidence is relevant to the appeal.  There does not appear to be any question of the claimant being unprepared to deal with the relevant report.  If there remains an issue between the claimant and the Department on this report it would, in my view, be a matter to be sorted out between them prior to the hearing.  If they can agree well and good.  If not, the above guidance will apply.  Prior to this matter being listed and as soon as reasonably practicable the Department should let the Appeals Service know what is to happen about the report in question, i.e. whether or not it is being put in evidence and should inform the claimant accordingly.

(4)	The claimant has produced a document which, she claims, is an accurate record of the proceedings.  She alleges that the Record of Proceedings produced by the legally qualified panel member is inaccurate and incorrect.  The claimant’s document (accurate or otherwise) is not and cannot be the record of proceedings required by statute.  The requirement for a record of the Tribunal’s proceedings is contained in regulation 55(1) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 which provides: -

“A record of the proceedings at an oral hearing, which is sufficient to indicate the evidence taken, shall be made by the chairman or, in the case of an appeal tribunal which has only one member, by that member, in such medium as he may determine.”
	
It will be seen from the above that the record is not required to be a verbatim record of the evidence.  It is to be “sufficient to indicate the evidence taken”.  Having perused both documents, it does not appear to me that there is any great discrepancy between the two documents in terms of the indication of the evidence given.  It is not uncommon that when giving evidence in reply to questions witnesses give lengthy explanations and preambles, parts of which are not in fact in answer to the question asked nor of any relevance to the issues. Some editing in note taking to allow for this is therefore almost inevitable.  There is nothing necessarily sinister about that.  It merely reflects the nature of verbal communication.  The duty of preparing the record of proceedings is on the legally qualified panel member.  The document prepared by that panel member constitutes the record.  There are, of course, circumstances where it can be proven that the record is incomplete or inaccurate in some way.  The burden of so proving lies on the person making the contention and the maker of the record and other relevant persons would normally be asked to comment before any pronouncement would be made.  However, by no means every omission or inaccuracy will show that the Tribunal has erred in law though on occasion this may be so.  

(5)	All parties should have the entirety of their evidence ready for presentation to the new Tribunal to which I am remitting this matter.  It should also be remembered that the Tribunal cannot take on board circumstances not obtaining at the date of the decision under appeal (in this case 8 April 2003).  It should also be noted that it is not an error for a Tribunal not to take into consideration evidence which was not before it.

(6)	Certain issues have been raised regarding the circumstances in which x-rays and MRI scans were sought.  It appears the results of same are now available.  It is a matter for the claimant whether she produces reports on these as part of her evidence but the results may prove helpful to the new Tribunal in considering this matter.

(7)	The Tribunal, if aware of some particular factual matter which is of relevance to the case should, generally, put this matter before the parties for comment.  The Tribunal is of course entitled to bring its own common sense and expertise to bear on the assessment of the evidence without seeking comment.  However, if it has specific factual knowledge which is relevant to some factual issue raised it is, at the least, good practice to put this matter before the parties for comment.  Whether the comment is accepted is, of course, a matter for the Tribunal.

(8)	The claimant has expressed concern that because the Tribunal doubted her evidence she may be disbelieved in relation to a possible action against A..… Hospital.  The Tribunal has made its own assessment of evidence as it was entitled to do and as the new Tribunal will also be entitled to do.  That assessment is in no way binding on any other body considering different issues and which will make its own assessment of the evidence in relation to those issues.

(9)	It is for the Tribunal to decide whether an award should be indefinite or for a fixed term.  It should usually indicate its reasons for a fixed term award.

5.	As mentioned above I am remitting this matter to a differently constituted Tribunal for rehearing and redetermination.  I do not consider that this is a case where I can give the decision which the Tribunal should have given.  There are evidential issues which the Tribunal, with its wider expertise, is better equipped to deal with.  The new Tribunal should bear in mind the views set out above.  The Department is directed to deal, as set out above, with the disputed medical report as quickly as reasonably practicable.  If the Department informs the Appeals Service that the report is to be put in evidence it will remain as part of the scheduled documents put before the Tribunal.  If the Department informs the Appeals Service that the report is not to be put in evidence the document should be removed.  It is therefore necessary that the Department deals with this matter as early as reasonably possible so that the Appeals Service can have the case listed and send to the members of the newly constituted Tribunal the relevant documentation.

(signed):		M F Brown
Commissioner

23 July 2004