[2005] NISSCSC C10_05_06(DLA) (11 October 2005)
C10/05-06(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 27 July 2004

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by me, by the claimant against a decision dated 7 July 2004 of an appeal tribunal sitting at Belfast.  That tribunal had disallowed the claimant’s appeal in relation to disability living allowance (DLA). The tribunal decided that the claimant was not entitled to DLA from and including 12 February 2004.  The claimant appealed to a Commissioner on an OSSC1 Form received in the Commissioners Office on 24 January 2005.  The claimant is represented in the appeal by Mr McAleese of the Citizens Advice Bureau and the Department by Mr Sloan of its Decision Making Services.  I am grateful to both representatives for their assistance in this matter.

2.	The claimant had been a DLA recipient.  He made a renewal claim dated 12 February 2004 (on expiry of his previous award of the higher rate mobility and middle rate care components of DLA).  The claimant’s date of birth was 7 June 1985.  At the date of previous awards he was under age 18 and the claims had been made on his behalf by his mother.  When the renewal claim was made (by which time the claimant was 18) it appears that the forms were again completed by his mother but signed by the claimant.  The tribunal held two hearings.  The first on 15 June 2004 was not attended by the claimant but was attended by his mother.  The tribunal adjourned to give the claimant an opportunity to attend.  At the resumed hearing on 27 July 2004 the claimant again did not attend but his mother did attend and on this occasion the tribunal, as it was entitled to do, proceeded to determine the appeal.	

3.	Included in the record of proceedings, under the heading of documents considered, there is a note that the claimant’s medical records were available.  It is common case that the claimant had the opportunity to view these records.  It appears that the records contained a note from the Accident and Emergency Department of the Mater Hospital dated 12 November 2002 which contained the following record:

“The patient sustained a hyperextension injury to the right ankle playing football this morning – pain in same.”  

	It is common case that this matter was not raised by the tribunal either at hearing or in correspondence.	

4.	In its reasons for decision the tribunal recorded, inter alia 

“The appellant’s reluctance to become involved in any part of the renewal of his own claim leads the Tribunal to the conclusion that he does not wish actively to become involved in the renewal claim so ardently pursued by his mother.  [The claimant’s mother] was plainly anxious to do her best for her son but the Tribunal formed the view that she exaggerated the severity of her son’s conditions and understated the intermittency of his knee pain.”

5.	The grounds of appeal were essentially fourfold as follows:

1.		That the tribunal had been wrong in the weight which it gave to the evidence and in particular to the fact that the claimant did not give oral evidence and in not giving insufficient weight to the “strong independent evidence” provided by the medical records, the university access report and the mobility driving centre assessment.	

2.	That the tribunal was not entitled to its conclusion that the claimant did not support the appeal.  He had instructed and authorised his representative to represent him.  He was unable to attend due to having to study for his examinations.  He had been obliged to insist on the hearing proceeding on the scheduled date as his Motability Scheme car was at risk.  His mother had taken responsibility for the matter until he was 18 years old and her continuing to do so placed him in no different position than many, if not the majority of claimants, who relied on various advisers and assistants for help.

3.	That the tribunal had relied on evidence not discussed at the hearing and had denied the claimant the opportunity to rebut that evidence.  This was so in particular in relation to the note from the Accident & Emergency Department of the Mater Hospital extracted above.	

4.	That the tribunal had erred in assessing the medical evidence.  In this connection there was reference to letters dated 7 October 2002 and 23 February 2004 from Dr Bell.

6.	By letter dated 14 March 2005 Mr Sloan opposed the appeal.  Mr Sloan made submissions in relation to the grounds of appeal numbered 1 – 4 above as follows:

(1)	The tribunal’s statement that its “task was made more difficult by the appellant’s unwillingness to attend the hearings and give evidence about the extent of his own pain” was merely an indication that the tribunal would have preferred to have the claimant attend and give direct evidence in support of his appeal and related to the general observations on the weight to be attached to direct and indirect evidence. The weight to be given to any evidence was for the tribunal to decide.  In this connection Mr Sloan referred to reported decision R3/04(DLA) which was confirmed by the Court of Appeal in Quinn v Department for Social Development [2004] NICA 22.	

The tribunal had referred to the medical evidence before it and addressed the evidence from the mobility driving centre assessment.  The reasons made it clear why, on the basis of the evidence, the tribunal concluded that the claimant was not entitled to either component of DLA.  Its findings of fact in relation to entitlement were not irrational, perverse or unsupported by the evidence and the weight given to the fact of the claimant’s absence from the hearing did not render the decision erroneous.

(2)	The tribunal was entitled to reach the conclusion that the claimant was reluctant to become involved in the renewal of his own claim.  The claimant had no cognitive, perceptual or concentration difficulties and had the ability to deal with the process of renewing the claim yet had chosen to rely on the help of his mother.  He was entitled to do this and the tribunal’s conclusion was not relevant to the question of his entitlement.  It could not therefore invalidate the decision.  Had the tribunal based its decision solely upon that conclusion it would have been an error of law.  However the decision was based on full assessment of all the available evidence which was directly relevant to the question of entitlement to DLA.	

(3)	The report from the Mater Hospital Accident & Emergency Department was contained within the claimant’s medical notes which were available for all parties to the appeal, including the representatives, to view.  In this connection decision C24/03-04(DLA) held at paragraph 13:

“I would state that the Tribunal is not obliged in every case to put forward to the claimant its possible conclusions from the evidence and enable the claimant to dispute those conclusions.  The Tribunal will not err in law if it reaches conclusions which are sustainable on the evidence.  Mrs Gunning is quite correct in that respect.  The hearing is the claimant’s chance to put his case.  He cannot expect a two stage process of the Tribunal hearing the case, reaching provisional conclusions on the evidence and then putting those conclusions forward to be rebutted by more evidence.”

The tribunal’s conclusion was sustainable on the evidence, the evidence was available to the applicant and his representatives at the hearing and in light of the above decision the tribunal’s use of this evidence in support of its findings was neither prejudicial nor in error of law.

(4)	The tribunal correctly addressed the matter of the degree of severity of pain in order to assess entitlement to the mobility component.  It was obvious that the tribunal considered and accepted that the claimant did experience pain but the tribunal had to address whether the level of discomfort was such that it rendered him virtually unable to walk.  The tribunal was not in error of law in its conclusion that the evidence of the renewal claim and the description of his pain given at hearing were exaggerated and the level of discomfort was not so severe that he was virtually unable to walk.

7.	Comment on these observations was made by the claimant’s representative by letter dated 18 April 2005.  He submitted that the tribunal had erred in not referring to the university access report and not addressing the issues of mobility raised thereby.  He also submitted that the assertion that the claimant did not support his appeal, while not the sole basis of the tribunal’s decision, was fundamental to its treatment of all the evidence.  He submitted further that, while it was accepted that the medical records were available to all parties, it was reasonable to expect that a major reason for reaching a decision would have been raised with the parties.  The tribunal had also had evidence of documents excusing the claimant from physical education at the date of the hospital report and would need to address this conflict of evidence in its decision.	

8.	Before dealing with the grounds of appeal in detail I should say that I do not consider that a tribunal decision should be dissected in the manner of a statute.  I would state further that it is possible for a decision to contain an error but for the decision itself not to be in error of law.  Much depends on whether that error was of such a nature and so substantial as to render the decision in error of law.  The reasons for a decision should be read as a whole and particular parts should not be isolated from their context and from the remainder of the reasons.  It is of course permissible to highlight and refer to particular passages but they must nonetheless be read in context.  So doing I am driven to the conclusion that the tribunal’s view that the claimant did not “wish actively to become involved in the renewal claim so ardently pursued by his mother”  influenced the tribunal’s assessment of the mother’s evidence.	

9.	The tribunal reached the conclusion that she exaggerated the severity of her son’s conditions and understated the intermittency of his knee pain.  I do not say that the tribunal was not entitled to reach that conclusion.  However, it does appear to me that central to the tribunal’s assessment of the mother’s evidence was its finding that the claimant did not wish to become involved in the renewal claim.  It also appears to me that the tribunal considered the evidence in the claim form to be supplied by the mother and to be, effectively, her evidence.  Had it considered the evidence to be the claimant’s it could hardly have found him unwilling to be involved in the renewal claim.  In this instance I consider the credibility of evidence to be crucial, as from the papers I am unable to trace objective signs of the pain syndrome which forms the basis of the claimant’s contentions.  Evidence from the claimant was therefore very important in relation to the matter.  Whether or not that evidence is considered reliable is a matter for the tribunal. However, if the tribunal forms a view on unreliability of crucial evidence which is substantially based on a factual conclusion which in itself is unfounded then I consider that there was an error of law.	

10.	I must therefore consider whether the tribunal’s finding that the claimant was reluctant to become actively involved in any part of his renewal claim was a reasonable one.  I do not have to consider whether I would have reached that conclusion but simply whether the tribunal was entitled to do so.  The Department submits that it was.  It cites in support of this that the renewal claim form and appeal letter had been signed by the claimant but entirely completed by his mother despite the fact that the claimant had no cognitive perceptual or concentration difficulties.  I think the Department is wrong in its contention.  The form was signed by the claimant.  He did not, it is true, attend the hearing though reasons were given for his not so doing.  However neither of those factors in my view indicate that the claimant was reluctant to become involved.  Had he been reluctant he could have refused to sign the claim form.  He did not do that.  In addition his mother had, because he was a minor, always completed previous forms.  It seems to me that the tribunal was actually going rather further than merely saying that the claimant was reluctant to become involved.  It was concluding that he must therefore not be supportive of his mother’s evidence to the tribunal and of the evidence in the claim form.  This, it must be remembered, is a form which the claimant signed and he should therefore (in the absence of accepted evidence or indications to the contrary) be taken to have supplied (or at least supported) and endorsed the contents thereof.  There is no such evidence or indication here.  The claimant’s non-attendance at the hearings does not so indicate.  That being so I am of the view that the tribunal was not entitled to its conclusion that he was reluctant to be involved in the renewal claim and that this conclusion (which is essentially a matter of fact relating to the reliability of the evidence) was in error of law.	

11.	I should emphasize that any future tribunal is at complete liberty in relation to its assessment of the evidence.   It is not bound to accept either what the claimant, the mother or any other witness states.  Equally of course it is free to accept that evidence.

12.	I set the decision aside for the reason indicated above.  It is therefore not necessary that I go in detail into the other grounds.  However I do think it worth commenting on the following passage contained in the reasons:

“The Chairman noted that although it was quite possible for indirect evidence to be heard by the Tribunal the weight to be attached to it must inevitably be less than that given to a first hand account.”

I think what the Chairman was referring to here was the mother giving evidence of the claimant’s pain.  In that respect the mother could have no personal knowledge.  She would either be stating what she had been told or what she observed.  She could not herself experience the pain.  Evidence of what she was told would in general be of less probative value than direct evidence from the claimant as to whether or not there was pain.  That is not to say that direct evidence must always be accepted in preference to other evidence.  The rules of evidence are relaxed before tribunals and much will depend on the tribunal’s assessment of the reliability of the direct evidence.	

13.	As regards the third ground – the reliance on evidence not discussed at the hearing - the Department is correct in that this evidence was all available for viewing by the claimant.  The Department is also correct that the tribunal is not required in every case to put forward to the claimant its possible conclusions from the evidence and enable the claimant to dispute those conclusions.  It does, however, appear here that the tribunal was reaching a conclusion that the claimant had been playing football.  What I have to ask myself is not whether this conclusion, once formed, should be put forward but whether the issue of whether or not the claimant was playing football was something which should have been raised at the hearing.  In my view it would have been, at the very least, good practice to have raised the matter.   The views expressed in paragraph 13 of my decision in C24/03-04(DLA) are still, in my view, correct.  They were, however, merely to the effect that the tribunal was not obliged “in every case” to put forward possible conclusions from the evidence.  The need to explore factual issues raised by evidence as opposed to conclusions to be drawn from that evidence is a somewhat different matter.  The demands of fairness vary according to the individual circumstances of each case.  It is not necessary that I express any concluded view as to whether or not they were fulfilled in this case as the claimant can now deal with the matter at a re-hearing.  It is for the new tribunal to reach its own view on the reliability of evidence.	

14.	As regards the fourth ground I do not have the two letters referred to, so am unable to express a concluded view.  However, the tribunal’s reasoning is comprehensive in relation to these two letters and does appear to indicate evidence on the basis of which it was open to the tribunal to conclude that the level of restriction was not so great as was being put forward.   I do not say that the tribunal was bound to so conclude but simply that it was entitled to so conclude. The assessment of evidence and the conclusions to be drawn from same will be for a new tribunal.	

15.	I set the tribunal’s decision aside as in error of law.  I do not consider that this is a case where I can give the decision which the tribunal should have given.  I therefore remit the matter to a differently constituted tribunal for re-hearing and re-determination.  It is to be hoped that the claimant will attend the re-hearing of the case so that the tribunal can take his oral evidence.  He should bear in mind that the tribunal is unable to taken into consideration circumstances not pertaining at the date of the decision under appeal (12 February 2004).  My allowing this appeal is not to be taken as an indication of the likely substantive outcome.

(Signed):  M F Brown

Commissioner

11 October 2005