AL-v-Department for Social Development (DLA) [2010] NICom 112
Decision No:  C42/10-11(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 28 September 2009

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant, with the leave of a Commissioner, against the unanimous decision of the tribunal, affirming the decision of the decision-maker, to the effect that the claimant is not entitled to either the care or the mobility component of disability living allowance (DLA) from and including 27 October 2006.

2.	Having considered the circumstances of the case and any reasons put forward in the request for a hearing, I am satisfied that the appeal can properly be determined without a hearing.

3.	On 19 May 1994 the claimant made a claim for DLA stating that she had osteoarthritis in both ankle joints.  On 1 July 1994 it was decided that the claimant satisfied the conditions of entitlement for an award of the higher rate mobility and lowest rate care from and including 11 April 1994.  On 8 February 2008 the decision of 1 July 1994 was reconsidered and it was decided that the claimant did not meet the criteria for an award of either the mobility or care components of DLA from and including 27 October 2006.  A request for reconsideration of the decision was received on 14 February 2008.  On 20 February 2008 the decision was reconsidered.  However, it was not changed.  Thereupon the claimant appealed.  After an oral hearing on 28 September 2009, a tribunal came to the decision as set out in paragraph 1 herein.  An application to the legally qualified member for leave to appeal to a Commissioner was made on 5 January 2010.  However, on 8 January 2010 leave to appeal was refused.

4.	The applicant then sought leave to appeal from a Commissioner and, on 5 August 2010, such leave was granted for the following reasons:

“It is arguable that the decision was wrong in law, because neither the claimant nor her representative was given an opportunity to give evidence in relation to or comment on the evidence contained in DVD recordings after such evidence was viewed by the tribunal.”

5.	The claimant is represented by Sean P Begley, Solicitor, of G R Ingram and Company, Solicitors.  The Department is represented by Mr Michael Collins of Decision Making Services.

6.	The issue in this case is important although not complicated.  In substance Mr Begley is arguing that there was a breach of the rules of natural justice in that neither the claimant nor her representative were afforded the opportunity to give evidence in relation to the DVD recordings.  Mr Begley raises the issue as to whether the claimant was given a fair hearing in the circumstances.

7.	In its reasons for its decision the tribunal stated, inter alia, as follows:

“Tribunal viewed a DVD produced by the Presenting Officer.  It had first been seen by the Representative who indicated that he had no objection to Tribunal looking at it.  In that DVD Claimant was seen on 27 October 2006 (according to the date marker) walking in and out of a St Vincent de Paul shop; she was observed walking briskly with a steady gait, carrying bags in her left hand and swinging her right arm.  On 15 January 2007 she was seen walking across a car park with a bag in her right hand and swinging her left arm, again at a brisk pace and with a normal gait and no sign of any pain or discomfort.”

	In its record of proceedings the chairman of the tribunal made the following note:

“Appeal Tribunal recessed to enable Mr Begley to view DVD.  Mr Begley and Presenting Officer returned.  He had no objection to Appeal Tribunal viewing the DVD which it then did in absence of the parties.”

	In addition in the statement of reasons the following was noted:

“Claimant’s Representative … argued that the sightings were over a period of months and that on the majority of times it was a short distance which Claimant was observed to cover.”

8.	It is clear, from the record of proceedings and the statement of reasons, that evidence was taken from the claimant regarding her ability to carry out certain tasks.  The tribunal then gave the parties to the proceedings the opportunity the view the DVD recordings and, following this, the tribunal viewed the DVD.  The members of the tribunal viewed the DVD on their own.  The tribunal then deliberated on the evidence and gave its decision without giving the parties to the proceedings the opportunity to comment on or to make further submissions in respect of the evidence contained within the DVD.

9.	Mr Begley has submitted that this procedure demonstrated an error of law.  Mr Collins agreed that there had been a breach of the rules of natural justice in that the claimant was not given a fair hearing in the circumstances.  He pointed out that paragraph 23 of the decision of Mrs Commissioner Brown, C6/06-07(IB), set out the basic requirements for a fair hearing.  She stated as follows:

“23.	The basic requirements for a fair hearing are that each party has -

(1)	real and effective access to a court;
(2)	notice of the time and place of the proceedings;
(3)	a real opportunity to present the case sought to be made;
(4)	a right to a reasoned decision.

The concept of equality of arms requires that there be a fair balance between the opportunity afforded the parties involved in the relevant case.  It does not require the adjudicating body to advise either party as to the manner of presenting his or her case or the evidence to be produced in support of it.  It does not appear that the claimant here was in any way prevented from producing such evidence as she wished.  She had, at the time of notification of the hearing been sent a copy of the Department’s submissions including the EMP’s report (which included examination findings).  She had an adequate opportunity to adduce such evidence as she wished in contradiction to those findings.  She did in fact adduce evidence and she herself made representations at the hearing about the EMP’s report.  Her complaint essentially is that she did not know to have her GP include examination findings in his letter and the tribunal did not ask about whether or not her GP’s letter had been based on an examination and thus did not consider adjourning to obtain the examination findings.  I do not think the requirement to conduct a fair hearing meant that the tribunal had to ask the claimant whether the said letter had been based on an examination.  There was no real dispute that the claimant had a back problem.  The dispute was over the extent of her functional limitations arising therefrom as measured by the personal capability assessment.  The claimant had already produced medicals which included x-ray findings and a report from Mr Mollan, Consultant Orthopaedic Surgeon (which included findings on clinical examination).  The clinical findings of Mr Mollan themselves showed:

“Straight leg raising was 5° on the left, 10° on the right yet she was able to sit upright on the couch touching fingers to ankle.”

Both he and the EMP recorded absent left ankle jerk.  Neither he nor the EMP noted muscle spasm.  Both showed some superficial vascular signs and neither recorded any abnormality of reflexes other than in the left ankle.  Both recorded decreased lumbar movements.  It was really only in straight leg raising that there was any discrepancy and as Mr Mollan noted there was perhaps some inconsistency revealed in his findings in relation thereto.  The claimant herself did not dispute the EMP’s clinical findings.  The EMP did consider the claimant to have some limitations in rising from sitting and bending or kneeling.”

10.	The question for me is to decide whether the claimant in all the circumstances was given “a real opportunity to present the case sought to be made”.

11.	The tribunal drew conclusions from the contents of the DVD and these conclusions were significant in light of all the circumstances of the case.  Issues inevitably have arisen from the viewing and I would have expected the tribunal to have, at the very least, made some investigation by further questioning as to whether the claimant had, for example, a very good day or was on very strong painkillers or, perhaps, pursued a similar line of questioning to clarify issues arising out of the contents of the DVD.

12.	After the viewing there is no record of the representative being invited to comment, nor were any steps taken to ask the claimant to clarify matters.  In my view this amounts to an error in law as the claimant did not have a real opportunity to deal with matters that had become significant issues in the case.

13.	For the reasons stated I conclude that the tribunal’s decision is erroneous in law.  Accordingly I allow the appeal.  In the circumstances I set aside the decision and I refer the case to a new tribunal to re-decide the appeal.  I so do as it is not appropriate for me, as a Commissioner, to give the decision the tribunal ought to have given as fresh findings of fact are necessary before a decision is made and the appropriate forum to resolve these matters is not in a legal appeal before a Commissioner but before a properly constituted appeal tribunal.

14.	I direct the new tribunal to take into account what is stated in this decision.  However, the fact that this appeal has been allowed should not be taken as an indication of the ultimate success of the claimant’s appeal to a tribunal.

(signed):  J A H Martin QC

Chief Commissioner

16 November 2010