[2008] NISSCSC C11_07_08(DLA) (2 July 2008) 

Decision No:  C11/07-08(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Appeal to a Social Security Commissioner by the claimant 
on a question of law from a tribunal’s decision 
dated 11 April 2007 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

	Decision

1.	I find no error of law in the decision of an appeal tribunal sitting in Dungannon on 11 April 2007 (the tribunal).  The tribunal’s decision therefore stands.  Leave to appeal was given by the legally qualified member who constituted the tribunal.  This was with respect to the following asserted point of law:

“Alleged non-consideration of all of the medical evidence”.

	The appeal is not supported on behalf of the Department and I agree with that lack of support.

2.	Another Commissioner has already ruled that the appeal can properly be determined without a hearing.  I agree with that determination, after my own consideration of the whole case papers.  Despite repeated opportunities to do so, over a long period of time, there has been no response by either the claimant or her representative (the representative) to an opportunity given to comment on the written submission made on behalf of the Department dated 23 November 2007.  

	My conclusions and reasons

	Adequate consideration of the evidence

3.	Neither the claimant nor her representative has ever specified, despite a specific request so to do, what is the medical evidence which it is asserted the tribunal failed to consider.  However, the only medical evidence in the case is a factual report dated 1 June 2006 from the general practitioner (GP), amplifying what was said by the GP on the claim form dated by the GP 13 April 2006, and a report from an examining medical practitioner (EMP) dated 8 August 2006.

4.	Evaluation of the evidence and determination of the merits is for the tribunal.  The Commissioner’s jurisdiction is limited to errors of law and none have been demonstrated by the claimant nor discerned from a document.  Unless there is an irrational or improper approach or it is inadequately explained, a Commissioner cannot interfere.  In no respect can the tribunal’s findings be criticised as outside the range of conclusions which the material before it justified.  

5.	In assessing whether or not the tribunal’s analysis of its evidence has been sufficiently explained, there has to be a sense of balance.  While it is always good practice to refer to each item of evidence in terms, the Commissioner is concerned with whether the reasoning is adequate and that can be judged only in the context of the evidence and the submissions as a whole.  Against that background, and assuming an informed reader, the tribunal has shown that it took into account all relevant evidence.  It is not required expressly to mention every item of evidence when the terms of the whole statement make clear why the tribunal decided as it did and in the light of the totality of the information before it.

6.	The tribunal noted matters in the GP’s report at several points in its decision.  Moreover, insofar as the tribunal allowed the appeal to the extent of awarding lowest rate care component of disability living allowance (DLA), it followed the GP’s report rather than that of the EMP;  the latter’s opinion was inconsistent with any award.  The claimant’s own evidence at the hearing did not support a case that she satisfied the statutory criteria for either the middle or highest rate care component of DLA.  As she was seeking an award of DLA, the onus of proof on all matters to make out the relevant constituents of entitlement lay on her.  It was the tribunal’s judgement, which has not been demonstrated as incorrect in law, that she only made out such criteria with respect to the lowest rate of the care component.

7.	If the claimant’s appeal to the Commissioner had succeeded, the tribunal’s whole decision would have been set aside and remitted for a new consideration of the entire case.  There would have been no guarantee that the claimant would have again succeeded even to the present extent.  A different assessment of the evidence is suggested in the grounds of the application for leave but it is the tribunal to whom Parliament has given the adjudicative function.  In Braintree DC v Thompson [2005] EWCA Civ 178, the Court of Appeal in England and Wales held that a tribunal’s finding of fact is not an error of law even if it is made against the weight of the evidence, but only if the finding is perverse in the sense that no reasonable tribunal could have drawn that inference from the evidence.  In no way has such been shown in the present case.

	Summary

8.	For the above reasons, in my view, no error of law is demonstrated and therefore the tribunal’s decision stands.  The tribunal did not apply any wrong legal tests and in the application of such tests, in no respect was its decision perverse.  The tribunal made adequate findings of fact, having regard to all of the evidence before it, and sufficiently explained why it took the view of the evidence it did.  There was no irrational assessment of any evidence and due regard was paid to all the relevant information in the case and no account was taken of any irrelevant factors.

	As Lord Hoffmann put it, giving the unanimous judgment of the House of Lords in Piglowska v Piglowski [1999] 3 All ER 632 at 643-644:

“… First, the appellate court must bear in mind the advantage which the first instance judge had in seeing the parties and the other witnesses.  This is well understood on questions of credibility and findings of primary fact.  But it goes further than that.  It applies also to the judge’s evaluation of those facts.  If I may quote what I said in Biogen Inc v Medeva plc (1996) 38 BMLR 149 at 165:

‘The need for appellate caution in reversing the judge’s evaluation of the facts is based upon much more solid grounds than professional courtesy.  It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence.  His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance … of which time and language do not permit exact expression, but which may play an important part in the judge’s overall evaluation’.

The second point follows from the first.  The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. … These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account”.

(signed):  L T PARKER

NI Deputy Commissioner

(GB Commissioner)

2 July 2008