[2009] NISSCSC C17_09_10(DLA) (16 June 2009)

Decision No: C17/09-10(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

	DISABILITY LIVING ALLOWANCE

	Application by the claimant for leave to appeal
	and appeal to a Social Security Commissioner
	on a question of law from a Tribunal’s decision
	dated 23 June 2008

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

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

2.	I grant leave to appeal and proceed to determine all questions arising 	thereon as though they arose on appeal.  

3.	Both parties to the proceedings before the Social Security 	Commissioner have expressed the view that the decision of the appeal 	tribunal, which is the subject of this appeal, is in error of law. 

4.	I am in agreement with the Decision Making Services unit (DMS) of the 	Department that the decision of the appeal tribunal was in error of law 	for the reasons identified by DMS, in its submission dated 13 May 	2009. 

5.	Pursuant to the powers conferred on me by Article 15(8) of the Social 	Security (Northern Ireland) Order 1998, I set aside the decision 	appealed against. 

6.	For further reasons set out below, I am unable to exercise the power 	conferred on me by Article 15(8)(a) of the Social Security (Northern 	Ireland) Order 1998 to give the decision which the appeal tribunal 	should have given. This is because there may be further findings of fact 	which require to be made. Further I do not consider it expedient to 	make such findings, at this stage of the proceedings. Accordingly, I 	refer the case to a differently constituted appeal tribunal for re-	determination. 

7.	It is imperative that the appellant notes that while the decision of the 	appeal tribunal has been set aside, the issue of his entitlement to 	disability living allowance (DLA) remains to be determined by another 	appeal tribunal. The newly constituted appeal tribunal will be 	undertaking its own determination of the legal and factual issues which 	arise in the appeal.  

Background

8.	On 11 October 2007, a decision-maker of the Department decided that 	the applicant was entitled to the higher rate of the mobility component 	of DLA from and including 14 December 2007.

9.	The decision dated 11 October 2007 was reconsidered on 30 October 	2007 but was not changed.

10.	The appeal was received in the Department on 8 January 2008.

11.	The appeal tribunal hearing took place on 23 June 2008.

12.	The appeal tribunal allowed the appeal with respect to the care 	component of DLA making an award of entitlement to the lowest rate of 	the care component for a fixed period. The appeal tribunal disallowed 	the appeal with respect to the mobility component reducing entitlement 	to the lower rate for the same fixed period. 

13.	On 4 November 2008 an application for leave to appeal to the Social 	Security Commissioner was received in the Appeals Service. The 	grounds cited in the application were that:

	(i)	the appeal tribunal did not have sufficient evidence to 	support its decision;

(ii)	the appeal tribunal did not provide adequate reasons for its decision;

	(iii)	the appeal tribunal displayed an unfair and prejudiced 		attitude in its questioning and reception of information 			received.

14.	On 13 November 2008, the application for leave to appeal was refused 	by the legally qualified panel member (LQPM).

Proceedings before the Social Security Commissioner

15.	On 9 December 2008, a further application for leave to appeal to the 	Social Security Commissioner was received in the Office of the Social 	Security Commissioners and Child Support Commissioners (OSSC). 	The grounds cited in the application were similar to those cited in the 	application to the LQPM.

16.	On 30 January 2009 observations were sought from DMS and these 	were received on 27 February 2009. DMS opposed the application on 	all of the grounds cited by the applicant’s representative. 

17.	Observations were shared with the applicant, and his representative, 	on 4 March 2009.

18.	On 18 March 2009, further correspondence in reply to the DMS 	observations was received in OSSC, from the applicant’s 	representative. 

19.	On 26 March 2009, the further correspondence was shared with DMS.

20.	On 2 April 2009 further submissions in reply were received from DMS.

21.	On 7 April 2009 these further observations were shared with the 	applicant and his representative.

22.	On 28 April 2009, I directed that DMS submit further observations on t	he following issue:

	‘The decision under appeal was a decision which had made an 	award of entitlement to the higher rate of the mobility component 	of disability living allowance for an indefinite period. In 	disallowing the appeal in respect of the mobility component the 	appeal tribunal made an award of entitlement to the lower rate of 	the mobility component for a fixed three-year period. In allowing 	the appeal in respect of the care component the appeal tribunal 	made an award of entitlement to the lowest rate of the care 	component, again for a fixed three-year period.  

To what extent is the statement of reasons for the appeal tribunal’s decision adequate to explain why the appeal tribunal placed a fixed period limitation on both awards?’

23.	On 13 May 2009, further observations were received in reply to my 	direction of 28 April 2009. In these further observations, DMS 	indicated:

	‘I have examined the reasons for decision and nowhere is there 	any indication as to why the tribunal decided that limited awards 	of the lowest rate care component and lower rate mobility 	component were appropriate.  Accordingly, and resiling from the 	position I took in my observations made on 27 February 2009, I 	submit that the minimal requirements set out in paragraph 5 of 	reported decision R1/95 (DLA) are not met and the decision of 	the appeal tribunal is erroneous in law.’

24.	A decision of an appeal tribunal may only be set aside by a Social 	
	Security Commissioner on the basis that it is in error of law.

Errors of law

25.	In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in 	Great Britain have referred to the judgment of the Court of Appeal for 	England and Wales in R(Iran) v Secretary of State for the Home 	Department ([2005] EWCA Civ 982), outlining examples of commonly 	encountered errors of law in terms that can apply equally to appellate 	legal tribunals. As set out at paragraph 30 of R(I) 2/06 these are:

	“(i)	making perverse or irrational findings on a matter or 	matters that were material to the outcome (‘material 	matters’);
	(ii)	failing to give reasons or any adequate reasons for 	findings on material matters;
	(iii)	failing to take into account and/or resolve conflicts of fact 	or opinion on material matters;
	(iv)	giving weight to immaterial matters;
	(v)	making a material misdirection of law on any material 	matter;
	(vi)	committing or permitting a procedural or other irregularity 	capable of making a material difference to the outcome or 	the fairness of proceedings; …
Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’). Errors of law of which it can be said that they would have made no difference to the outcome do not matter.” 

The error of law in the present case

26.	Section 71(1) to (3) of the Social Security Contributions and Benefits 	(Northern Ireland) Act 1992, as amended, provides that:

	‘71.—(1) Disability living allowance shall consist of a care 		component and a mobility component.

	(2) A person’s entitlement to a disability living allowance may be 	an entitlement to either component or to both of them.

	(3) A person may be awarded either component for a fixed 	period or for an indefinite period, but if his award of a disability 	living allowance consists of both components, he may not be 	awarded the components for different fixed periods.’

27.	Accordingly, an adjudicating authority has the power to make an award 	of either component for a fixed period or for an indefinite period. 

28.	In the instant case, the decision-maker of the Department had decided, 	on 11 October 2007, that the applicant was entitled to the higher rate of 	the mobility component of DLA from and including 14 December 2007. 	For the purposes, therefore, of section 72(2) of the Social Security 	Contributions and Benefits (Northern Ireland) Act 1992, as amended, 	the decision-maker had decided that the applicant should have an 	entitlement to one component only. Further, for the purposes of section 	72(2) of the Social Security Contributions and Benefits (Northern 	Ireland) Act 1992, as amended, the decision-maker had decided that 	the applicant should have an entitlement to one component for an 	indefinite period.

29.	A Tribunal of Commissioners in Great Britain, in R(IB) 2/04, undertook 	an extensive analysis of the legislative provisions relating to decision-	making and appeals. In Great Britain these provisions are the Social 	Security Act 1998 and the Social Security and Child Support (Decisions 	and Appeals) Regulations 1999, both as amended. In Northern Ireland 	these provisions are the Social Security (Northern Ireland) Order 1998 	and the Social Security and Child Support (Decisions and Appeals) 	Regulations (Northern Ireland) 1999, both as amended. To all intents 	and purposes, the legislative provisions with respect to decision-	making and appeals in Great Britain and Northern Ireland are identical. 

30.	The guidance given by the Tribunal of Commissioners in R(IB)2/04 	reminds an appeal tribunal that it must identify the decision under 	appeal, and decide whether that decision is correct. Does the appeal 	tribunal have the power to make a decision which is less favourable to 	the appellant than the decision under appeal? The answer to that 	question is ‘yes’. In C48/03-04(DLA), Commissioner Brown stated, at 	paragraphs 22 to 25:

	’22.   … The decision in CIB/4751/2002 and others is authority 		for the proposition that a Tribunal is entitled to supersede 		the original decision on a ground which leads to a 			decision less favourable to the claimant than that original 		decision.  As the Tribunal of Commissioners states at 			paragraph 55: -

		“In our judgment, if an appeal tribunal decides that 		the Secretary of State’s decision under Section 9 		or Section 10 changing or refusing to change a 		previous decision was wrong then (subject to the 		restriction in Section 12(8)(b), if relevant) it has 		jurisdiction to make the revision or supersession 		decision which it considers the Secretary of State 		ought to have made, even if that means making a 		decision under Section 9 when the Secretary of 		State acted only under Section 10, and vice 			versa.”

	23.	Again at paragraphs 83 and 84 the Tribunal of 					Commissioners states: 

		“83.	We have formulated this issue as follows.  			When a claimant appeals against a decision 			refusing to accede to his application for 				supersession (or acceding to the application 			but not making a decision as favourable as 			the claimant wished), does an appeal 				tribunal have power to supersede the 				original decision on a ground which leads to 			a less favourable award than the 					superseded award?

		84.	This issue in practice arises primarily in r			elation to disability living allowance.”

	24.	At paragraph 89 the Tribunal of Commissioners states: -

		“First, there is in our judgment no possible warrant 		for reading the words “need not” in Section 			12(8)(a) as “shall not”.  “Need not” is clearly 			permissive, whereas “shall not” would have been 		mandatory.  If Parliament had meant “shall not”, it 		could easily have said so.”

		At paragraph 90 the Tribunal of Commissioners states: -

		“Second, issues not raised by an appeal are in 			their nature quite likely to be issues as to whether 		the tribunal should make an award less favourable 		to the claimant than did the Secretary of State.  In 		providing in Section 12(8)(a) that a tribunal need 		not consider issues not raised by the appeal (and 		therefore necessarily that it had the power to do 		so), Parliament was implicitly providing that 			tribunals could consider whether to make a 			decision less favourable to the claimant than did 		the Secretary of State.  As pointed out in 			Paragraph 32 above, appeal tribunals are part of 		the adjudication system designed to ensure that c		claimants receive neither more nor less than the 		amount of social security benefits to which they 		are properly entitled (as opposed to the benefits to 		which the parties may be contending that they are 		entitled).  It would be wrong to issue guidance of 		the sort contended for by CPAG fettering the 			discretion of the tribunal to consider issues not 			raised by the appeal.”

	25.	At paragraph 94 the Tribunal of Commissioners states: -

		“There must, however, be a conscious exercise of 		this discretion [to supersede adversely] and (if a 		statement of reasons is requested) some 			explanation in the statement as to the reasons why 		it was exercised in the manner it was.  In 			exercising the discretion, the appeal tribunal must 		of course have in mind, in particular, two factors.  		First, it must bear in mind the need to comply with 		Article 6 of the Convention and the rules of natural 		justice.  This will involve, at the very least, 			ensuring that the claimant has had sufficient notice 		of the tribunal’s intention to consider superseding 		adversely to him to enable him properly to prepare 		his case.  The fact that the claimant is entitled to 		withdraw his appeal any time before the appeal 		tribunal’s decision may also be material to what 		 the rules of natural justice demand.  Second, the 		appeal tribunal may consider it more appropriate to 		leave the question whether the original decision 		should be superseded adversely to the claimant to 		be decided subsequently by the Secretary of 			State. This might be so if, for example, deciding 		that question would involve factual issues which do 		not overlap those raised by the appeal, or if it 			would necessitate an adjournment of the hearing.”’

31.	The decision in CIB/4751/2002 referred to by the Commissioner has 	now been reported as R(IB) 2/04.

32.	Does the power to make a decision which is less favourable to the 	decision under appeal include the power to:

	(i)	reduce the period of the award?

	(ii)	in DLA cases, remove an entitlement to either component 		or both?

	(iii)i	in DLA cases, reduce an entitlement to one component 		from a higher to a lower rate? and

	(iv )	in DLA cases, reduce an award for an indefinite period to 		an award for a fixed period?

33.	Once again the answer to that question has to be ‘yes’, subject, of 	course, to the qualification, set out in paragraph 94 of R(IB) 2/04, 	concerning the conscious exercise of the judicial discretion and some 	explanation in any statement of reasons as to why the judicial 	discretion was exercised in the manner it was.  
34.	In the instant case, in the submission prepared for the appeal tribunal 	hearing, in section 5, it is noted that:

	‘I submit that (the claimant) has been awarded the higher rate of 	the mobility component from 14.12.07. I submit that this is not 	disputed by (the claimant) or the Department and therefore need 	not be considered by the Tribunal in this current appeal unless 	evidence becomes available on the day of the hearing casting 	doubt on the validity of the award.’ 

35.	At the appeal tribunal hearing, the applicant was represented by an 	experienced appeal tribunal representative – Mr Doran. The record of 	proceedings for the appeal tribunal’s decision notes that:

		‘Mr Doran

		…

	Current award of High Rate Mobility from 14.12.2007 	indefinitely. He is aware of  Tribunal’s powers and is happy to 	proceed.’

36.	In the statement of reasons for the appeal tribunal’s decision, it is noted 	that:

	‘(The claimant) was advised of our powers reference the current 	award. He was represented. He decided to proceed.’ 

37.	Although it is not expressly stated, I am concluding from these entries 	that the applicant was aware that the appeal tribunal had the power to 	make a decision which was less favourable to him than the decision 	under appeal. Further, I am also concluding that the applicant was 	aware of his right to withdraw his appeal in light of his knowledge of the 	appeal tribunal’s powers. He chose not to withdraw but to proceed with 	his appeal. 

38.	Accordingly, I am satisfied that the appeal tribunal has complied with a 	fundamental requirement, set out in paragraph 94 of R(IB)2/04, to 	ensure ‘that the claimant has had sufficient notice of the tribunal’s 	intention to consider superseding adversely to him to enable him 	properly to prepare his case.’ In light of the appeal tribunal’s reference 	to its powers, the applicant’s representative could have made an 	application for an adjournment, if it was felt that additional time was 	required to prepare the applicant’s case. The representative did not 	make such an application and, on the contrary, indicated that the 	applicant wished to proceed with his case.

39.	R(IB) 2/04 imposes a second requirement on appeal tribunals, when 	exercising their judicial discretion to make a decision less favourable to 	the appellant than the decision under appeal. As was noted above, at 	paragraph 90 of the decision, it is noted that ‘(if a statement of reasons 	is requested) some explanation in the statement as to the reasons why 	[the judicial discretion] was exercised in the manner it was.’ 

40.	Has the appeal tribunal complied with this requirement? I am satisfied 	that the appeal tribunal, in the statement of reasons, has given an 	adequate explanation why it has considered that there should be a 	reduction in the applicant’s entitlement to the mobility component of 	DLA from the higher to the lower rate. In arriving at that conclusion I 	cannot, with respect, accept the submission from the applicant’s 	representative that the appeal tribunal did not have sufficient evidence 	to support its decision; or that the appeal tribunal did not provide 	adequate reasons for its decision; or that there was undue reliance on 	particular parts of the evidence reflective of an unfair and prejudiced 	attitude on the part of the appeal tribunal. 

41.	I am satisfied that the appeal tribunal undertook a rigorous and rational 	assessment of all of the evidence before it, including the medical 	evidence contained within the applicant’s general practitioner records. 

42.	The appeal tribunal gave a sufficient explanation of its assessment of 	the evidence, explaining why it took the particular view of the evidence 	which it did. I have noted that the appeal tribunal concluded that the 	applicant was exaggerating the problem with his back and legs. It is 	important to note that the assessment of evidence is a matter for the 	appeal tribunal, and a Social Security Commissioner must be wary of 	interfering with the conclusions of an appeal tribunal based on its 	evidential assessment.

43.	In C14/02-03(DLA), Commissioner Brown, at paragraph 11, stated:

	‘ … there is no universal rule that a Tribunal must always explain 	its assessment of credibility.  It will usually be enough for a 	Tribunal to say that it does not believe a witness.’     

44.	Additionally, in R3/01(IB)(T), a Tribunal of Commissioners, at 	paragraph 22 repeated what the duty is:

		‘We do not consider that there is any universal obligation on a 	Tribunal to explain its assessment of credibility.  We disagree 	with CSIB/459/97 in that respect.  There may of course be 	occasions when this is necessary but it is not an absolute rule 	that this must always be done.  If a Tribunal makes clear that it 	does not believe a claimant’s evidence or that it considers him to 	be exaggerating this will usually be sufficient.  The Tribunal is 	not required to give reasons for its reasons. There may be 	situations when a further explanation will be required but the 	only standard is that the reasons should explain the decision.  It 	will, however, normally be a sufficient explanation for rejecting 	an item of evidence, including evidence of a party to an appeal, 	to say that the witness is not believed or is exaggerating.’

45.	This reasoning was confirmed in Great Britain in CIS/4022/2007. After 	analysing a series of authorities on the issue of the assessment of 	credibility, including R3/01(IB)(T), Deputy Commissioner Wikeley 	summarised, at paragraph 52, as follows:
	‘In my assessment the fundamental principles to be derived from 	these cases and to be applied by tribunals where credibility is in 	issue may be summarised as follows: (1) there is no formal 	requirement that a claimant's evidence be corroborated – but, 	although it is not a prerequisite, corroborative evidence may well 	reinforce the claimant's evidence; (2) equally, there is no 	obligation on a tribunal simply to accept a claimant's evidence 	as credible; (3) the decision on credibility is a decision for the 	tribunal in the exercise of its judgment, weighing and taking into 	account all relevant considerations (e.g. the person's reliability, 	the internal consistency of their account, its consistency with 	other evidence, its inherent plausibility, etc, whilst bearing in 	mind that the bare-faced liar may appear wholly consistent and 	the truthful witness's account may have gaps and discrepancies, 	not least due to forgetfulness or mental health problems); (4) 	subject to the requirements of natural justice, there is no 	obligation on a tribunal to put a finding as to credibility to a party 	for comment before reaching a decision; (5) having arrived at its 	decision, there is no universal obligation on tribunals to explain 	assessments of credibility in every instance; (6) there is, 	however, an obligation on a tribunal to give adequate reasons 	for its decision, which may, depending on the circumstances, 	include a brief explanation as to why a particular piece of 	evidence has not been accepted. As the Northern Ireland 	Tribunal of Commissioners explained in R 3/01(IB)(T), ultimately 	"the only rule is that the reasons for the decision must make the 	decision comprehensible to a reasonable person reading it".’
46.	I am also of the view that any conflict in the evidence before the appeal 	tribunal has been clearly resolved and explained. The evidence 	concerning the applicant’s trip to the United States of America was 	assessed in light of all of the other evidence before the appeal tribunal.    

47.	In relation to the rejection of entitlement to the higher rate of the 	mobility component, the appeal tribunal made sufficient findings of fact, 	relevant to its decision, all of which are wholly sustainable on the 	evidence, and all of which are supported by relevant evidence. 

48.	Where, then, did the appeal tribunal go wrong? The decision of the 	appeal tribunal, with respect to the mobility component was to reduce 	entitlement to the lower rate for a fixed period of three years. That was 	a decision which the appeal tribunal was entitled to make, in line with 	the exercise of its judicial discretion to make a decision less favourable 	than the decision under appeal. It is important to recall that the decision 	under appeal had awarded an entitlement to the higher rate of the 	mobility component for an indefinite period. Having decided to make a 	decision which was less favourable, the appeal tribunal was under an 	obligation to give an indication of the reasons why it was making such 	a less favourable decision. That obligation included, in the present 	case, an obligation to indicate why the reduced award of the lower rate 	of the mobility component was for a fixed three year period. Looking at 	the decision notices, and the statement of reasons for the appeal 	tribunal’s decision, I can find no indication of the reasons why the 	appeal tribunal considered it appropriate to limit the award of the lower 	rate of the mobility component to three years. 

49.	Having found that the appeal tribunal was under a duty to provide 	reasons for limiting the award, and having failed to address that issue, 	and explain, in its statement of reasons, that it has so addressed it, I 	find that the decision of the appeal tribunal is in error of law.

50.	The analysis thus far has related to the requirement for an appeal 	tribunal to give adequate reasons for any decision to make a fixed 	period award of DLA, in the context of the exercise of its judicial 	discretion to make a decision less favourable to the appellant than the 	decision under appeal. What also requires to be considered are the 	standards required from appeal tribunals, with respect to reasons for its 	decision, where the decision to make a fixed period award is in the 	context of an appeal against a decision not to award any entitlement to 	the benefit at all. 

51.	In the further observations, dated 13 May 2009, on the directed issue 	of the fixed period award, DMS made the following submission in 	connection with the issue of reasons for making fixed period awards:

	‘Regulation 17(1) and (6) of the Social Security (Claims and 		Payments) Regulations (NI) 1987 provides – 

	“(1) Subject to the provisions of this regulation and of section 	37ZA(3) of the Act (disability living allowance) ….., a claim for 	benefit shall be treated as made for an indefinite period and any 	award of benefit on that claim shall be for an indefinite period.”

	“(6) ….. if, it would be inappropriate to treat a claim as made, 	and to make an award, for an indefinite period (for example 	where a relevant change of circumstances is reasonably to be 	expected in the near future) the claim shall be treated as made 	and the award shall be for a definite period which is appropriate 	in the circumstances.”

	Section 37ZA (of the Social Security (NI) Act 1975) of the Act 	has been replaced by section 71 of the Social Security 	Contributions and Benefits (NI) Act 1992 and section 71(3) 	provides – 

“(3) A person may be awarded either component for a fixed period or for an indefinite period but if his award of a disability living allowance consists of both components, he may not be awarded the components for different fixed periods.”

	In paragraph 3 of reported decision R1/95 (DLA) the then Chief 	Commissioner agreed with the view that regulation 17(1) and (6) 	“….. apply to disability living allowance; subject to any 	modification rendered necessary by the provisions of section 	37ZA of the 1975 Act.”  In paragraph 5 the Chief Commissioner 	held – 

	“….. I agree that Tribunals should consider whether an 	award for life would be inappropriate; but in my view they 	are not required to have evidence supporting a precise 	date for the end of entitlement.  In my opinion they can 	apply their own experience of life to the facts of the case.  	If they make it clear that they have considered the point 	and explain in brief terms why they have decided that the 	award should be for a fixed period which they have 	selected, they will in my opinion have applied the 	provisions of regulation 17(6), and have complied fully 	with their obligations …..”’

52.	With the utmost respect to the then Chief Commissioner, I would not 	necessarily agree that there has to be a concentration on the 	requirements of regulation 17 of the Social Security (Claims and 	Payments) Regulations (NI) 1987, as amended, when a decision is 	being made to make an award of entitlement to DLA for an indefinite 	period or for a fixed period. The power to make awards for either an 	indefinite or a fixed period is to be found in section 71(3) of the Social 	Security Contributions and Benefits (Northern Ireland) Act 1992, as 	amended. Accordingly, the emphasis should be on the requirements of 	that legislative provision. 

53.	Where an adjudicating authority, including an appeal tribunal, is 	deciding to make an award of an entitlement to DLA (whichever 	component at whatever rate), is that authority obliged to give reasons 	for the restriction of the period of the award? The answer to that 	question has to be ‘yes’. 

54.	There may be many good reasons for restricting entitlement to DLA for 	a fixed period. An appeal tribunal may have evidence that the basis 	upon which the appellant satisfies the conditions of entitlement to the 	benefit may change in the future. For example, there may be evidence 	that the appellant is likely to undergo a medical procedure or 	intervention which could well lead to an improvement in their medical 	condition. Additionally, the medically qualified panel member of the 	appeal tribunal’s experience and knowledge of the particular disability 	giving rise to entitlement to the benefit may include a prognosis that the 	symptoms and effects of the disability are likely to improve in the 	future. As was observed by the then Chief Commissioner in 	R1/95(DLA), awards in respect of children are more likely to be for a 	fixed rather than an indefinite period, reflecting the fact that changes 	can and do occur in the lives of children as they reach significant 	milestones. 

55.	Equally there may be very good reasons for an appeal tribunal making 	an indefinite award of entitlement to DLA. All of the evidence before the 	appeal tribunal could lead to a conclusion that it is unlikely that basis 	upon which the appellant satisfies the conditions of entitlement to the 	benefit will change in the foreseeable future. The nature of certain 	disabling conditions is such that further improvement is unlikely.

56.	The assessment on the length of an award of entitlement to DLA is an 	integral part of the decision-making process undertaken by the appeal 	tribunal. As it is part of the decision-making process, it should also be 	part of the reasoning process. That means that an appeal tribunal is 	under an obligation to give reasons for its conclusions on the length of 	an award, whether that is for a fixed or an indefinite period. 

57.	Support for that conclusion is to be found in the decisions of the Social 	Security Commissioners in C2/93(DLA) at paragraph 6, and 	C2/95(DLA) at paragraph 9, and C7/95(DLA) at paragraph 9. Despite 	my stated reservations of the reasoning employed in R1/95(DLA), I 	agree with the overall conclusion of the then Chief Social Security 	Commissioner that some explanation, albeit in brief terms, should be 	given as to why an appeal tribunal has decided that an award should 	be for a fixed period which it has selected. Finally, Commissioner 	Williams, in the Great Britain case CDLA/2349/2008, found that an 	appeal tribunal was in error of law in failing to explain why it had made 	an award for the fixed period which it had chosen. At paragraph 5 of 	the decision, the Commissioner stated that:

	‘The choice of an award period … has to be a positive decision 	needing clear justification.’
    
The applicant’s other grounds for appealing

58.	Having found that the appeal tribunal was in error of law in failing to 	provide reasons for its decision to make a fixed period award of 	entitlement to DLA, I do not require to address the applicant’s other 	grounds for making an application for leave to appeal to the Social 	Security Commissioner.

59.	I have already indicated, however, that I cannot, with respect, accept 	the submission from the applicant’s representative that the appeal 	tribunal did not have sufficient evidence to support its decision; or that 	the appeal tribunal did not provide adequate reasons for its decision; or 	that there was undue reliance on particular parts of the evidence 	reflective of an unfair and prejudiced attitude on the part of the appeal 	tribunal. 

60.	I have also noted the submissions made by the applicant’s 	representative in connection with the manner in which the appeal 	tribunal undertook an examination, during the appeal tribunal hearing, 	of the applicant’s walking stick. The applicant’s representative was less 	concerned that the members of the appeal tribunal had examined the 	walking stick, but with the manner in which the medically qualified 	panel member had approached this task. That manner was described 	by the applicant’s representative as ‘confrontational and adversarial’.

61.	In the record of proceedings for the appeal tribunal hearing, it is noted 	that the applicant’s walking stick was examined. Further, the 	applicant’s representative has confirmed that the applicant had no 	objection to this process. 

62.	I have considered whether the appeal tribunal should have undertaken 	such an examination. In the Great Britain case R(DLA)5/03, an appeal 	tribunal had asked an appellant to pick up a handbag from the floor and 	tip out its contents. Commissioner Jacobs had the following to say 	about that request, at paragraphs 8 to 19 of his decision:

	‘8.	The claimant’s representative has asked me to deal with 		an issue of more general importance. This is the 			tribunal’s power, on hearing a disability living allowance 		appeal, to carry out a physical examination or ask the 			claimant to undergo a physical test. The issue arose from 		an allegation that the tribunal had asked the claimant to 		pick up her handbag from the floor and tip out its 			contents. It has developed into a broader discussion of 		the tribunal’s powers. As I have set the tribunal’s decision 		aside on other grounds, I am not concerned with what the 		tribunal did; that can be dealt with under the tribunal’s 			complaint procedure. I am concerned rather with directing 		the tribunal on its powers at the rehearing. 

	9.	The claimant’s representative has put her argument in 		different ways, but they all relate to section 20(3) of the 		Social Security Act 1998. This provides:

		“(3)	At a hearing before an appeal tribunal, 			except in prescribed cases or circumstances, the 		tribunal—
	(a)	may not carry out a physical examination of 		the person mentioned in subsection (2) 			above; and
	(b)	may not require the person to undergo any 		physical test for the purpose of determining 		whether he satisfies the condition 			mentioned in section 73(1)(a) of the 			Contributions and Benefits Act.” 
		This effectively re-enacts section 55(2) of the Social 			Security Administration Act 1992, which was limited to the 		former disability appeal tribunals. Section 73(1)(a) deals 		with actual and virtual inability to walk.
	Physical examination 
	10.	A tribunal is not entitled to carry out a physical 				examination of the claimant. That is prohibited by section 		20(3)(a). What is a physical examination for the purposes 		of this provision? The nature of a physical examination 		was considered by the Tribunal of Commissioners in 			Northern Ireland in C1/01-02(IB) [reported as R1/01 			(IB)(T)]. I respectfully agree with that decision. A physical 		examination is more than mere observation of an activity 		performed by a claimant at someone’s request. A 			physical examination is a structured investigation 			applying medically recognised techniques in an attempt 		to elicit objective signs of injury, disease or dysfunction. 		These techniques may involve physical contact with the 		claimant, but this is not an essential feature of all 			examinations.
	11.	Asking questions at a hearing differs from an 				examination. The purpose of asking questions is not to 		identify objective physical signs. Rather, it is an attempt 		to elicit the claimants’ symptoms or estimates of their own 		disablement. 
	12.	Nor does it involve an examination to ask a claimant with 		a visual impairment, “What can you see when you look at 		the panel members?”, an example used by the claimant’s 		representative. There is no difference between this and 		any other question. It is merely asking the claimant to 			give oral evidence in a way that will allow the answer to 		be most informative to the tribunal.
	13.	Watching a claimant perform an everyday function in the 		tribunal room is different from asking questions, but it 			does not involve carrying out a physical examination, 			because it is not applying medically recognised 			techniques.
	14.	So, I reject the argument that observing the performance 		of a task amounts to or involves carrying out a physical 		examination.
	Physical test
	15.	A physical test, in the context of section 20(3)(b) and in 		contrast to physical examination, means performing an 		activity which demonstrates the extent of the claimant’s 		ability to perform that activity or to perform an activity that 		involves similar or related functions.
	16.	If a claimant does something in view of the tribunal and 		without prompting or request by the tribunal, it is entitled 		to take account of its observations. The claimant’s 			representative accepts that. This applies to something 		done by the claimant without appreciating its significance, 		such as the manner of walking into the hearing room. It 		also applies to something which the claimant volunteers 		to do, such as showing a swollen joint or demonstrating a 		difficulty with buttons.
	17.	The issue raised by the claimant’s representative 			concerns an activity that the tribunal asks the claimant to 		perform. Of course, the tribunal cannot force a claimant to 		do something. But there is the risk that it might draw 			adverse conclusions from a failure to comply with a 			request. If the tribunal is entitled to require the claimant to 		undergo a physical test, it is entitled both to ask the 			claimant to do something and to draw appropriate 			inferences from a refusal.
	18.	Section 20(3)(b) only prohibits a tribunal from requiring a 		claimant to undergo a physical test in order to test for 			actual or virtual inability to walk. On the face of it, it 			leaves the tribunal free to require a claimant to undergo a 		physical test for other aspects of entitlement to a disability 		living allowance. However, that is not a correct 				interpretation. The provision must not be interpreted in 		isolation. It can only be properly understood in its 			historical context of the development of the law. The 			provision began as section 55(2) of the 1992 Act and was 		enacted in relation to the creation of disability appeal 			tribunals. When those tribunals were abolished and 			replaced by the appeal tribunals under the 1998 Act, the 		provision was repeated. Historically, the only tests that 		were carried out before 1992 were those carried out by 		the medical appeal tribunals. Those tribunals had the 			power to carry out a physical examination of a claimant. 		In the case of appeals relating to mobility allowance, the 		examination was usually supplemented by a walking test. 		Viewed in that context, section 55(2)(b) of the 1992 Act 		and section 20(3)(b) of the 1998 Act prohibit only the test 		that was formerly used by medical appeal tribunals. They 		prohibit only that test, because no other test was ever 			used. They are negative in their effect. It is not 				appropriate to interpret them to confer a positive statutory 		authority to require a claimant to undergo a physical test 		for other purposes.
	19.	However, that does not mean that appeal tribunals may 		not invite claimants to demonstrate an activity. Tribunals 		are entitled to ask claimants to explain how they do 			something. There is limited scope for this enquiry to be 		supplemented by a demonstration in the context of the 		mobility component at the lower rate or of the care 			component. But, to the extent that this may be possible, 		there is no reason why tribunals should not also ask 			claimants to demonstrate. Such requests must, of course, 		be limited to the proper scope of a hearing. It is the 			function of a tribunal to conduct a judicial enquiry, not to 		undertake an occupational therapy assessment. If a 			claimant refuses to accede to the tribunal’s request, it 			may be entitled to draw inferences from that refusal. But 		this will depend on the reasonableness of the request and 		the reasons the claimant gives for refusing to comply.’

63.	The equivalent in Northern Ireland of section 20(3) of the Social 	Security Act 1998, is Article 20(3) of the Social Security (Northern 	Ireland) Order 1998.

64.	On the basis of the principles in R(DLA)5/03, I find nothing wrong in the 	appeal tribunal asking to view the applicant’s walking stick. I cannot 	comment, however, on the manner in which the members of the appeal 	tribunal, particularly the medically qualified panel member approached 	the issue. It is clear that a request was made to view the walking stick, 	and the appellant had no objection to demonstrating it to the members 	of the appeal tribunal. There is no reference, in the statement of 	reasons for the appeal tribunal’s decision to the examination of the 	walking stick, and the appeal tribunal has not drawn any inference from 	such an examination.

Disposal

65.	The decision of the appeal tribunal, dated 23 June 2008, is in error of 	law.

66.	Pursuant to the powers conferred on me by Article 15(8) of the Social 	Security (Northern Ireland) Order 1998, I set aside the decision 	appealed against. 

67.	For further reasons set out below, I am unable to exercise the power 	conferred on me by Article 15(8)(a) of the Social Security (Northern 	Ireland) Order 1998 to give the decision which the appeal tribunal 	should have given. This is because there may be further findings of fact 	which require to be made. Further I do not consider it expedient to 	make such findings, at this stage of the proceedings. Accordingly, I 	refer the case to a differently constituted appeal tribunal for re-	determination. 

68.	It is imperative that the appellant notes that while the decision of the 	appeal tribunal has been set aside, the issue of his entitlement to DLA 	remains to be determined by another appeal tribunal. The newly 	constituted appeal tribunal will be undertaking its own determination of 	the legal and factual issues which arise in the appeal.  

	(Signed)  K Mullan

	COMMISSIONER

	16 June 2009