MC-v-Department for Social Development (DLA) [2011] NICom 142
Decision No:  C87/10-11(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 20 August 2009

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

2.	The decision of the appeal tribunal dated 20 August 2009 is in error of law.  The error of law identified will be explained in more detail below.  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.

3.	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 is detailed evidence relevant to the issues arising in the appeal, including medical evidence, to which I have not had access, and 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.

4.	In referring the case to a differently constituted appeal tribunal for re-determination, I direct that the appeal tribunal takes into account the guidance set out below.

5.	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.  In accordance with the guidance set out below, the newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal.

	Background

6.	On 9 June 2008 a decision-maker of the Department decided that the appellant was not entitled to DLA from and including 17 August 2008.  There had been a previous fixed term award of the higher rate of the mobility component.

7.	An appeal against the decision dated 9 June 2008 was received in the Department on 6 October 2008.

8.	An appeal tribunal hearing took place on 29 May 2009.  On the same day the decision of the appeal tribunal dated 29 May 2009 was set aside, following an application to that effect.

9.	The substantive appeal tribunal hearing took place on 20 August 2009.  The appellant was present and was represented.  There was no presenting officer from the Department present.  The appeal tribunal disallowed the appeal, and confirmed the decision dated 9 June 2009.

10.	On 27 October 2009 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.  On 9 November 2009 the application for leave to appeal was refused by the legally qualified panel member (LQPM).

	Proceedings before the Social Security Commissioner

11.	On 25 February 2010 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.  On 4 June 2010, the late application was accepted for special reasons.  Also on 4 June 2010 written observations, including observations on two specific questions, were sought from Decision Making Services (DMS).  Written observations were received on 29 June 2010.  DMS opposed the application on the grounds submitted by the appellant’s representative, Mr Gerard O’Neill of the Citizens Advice Bureau, but supported the application on two other grounds relating to the questions which had been raised by the Social Security Commissioner.  Observations were shared with the appellant on 15 July 2010.

	Errors of law

12.	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.

13.	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.”

	Was the decision of the appeal tribunal in the instant case in error of law?

	The submissions of the parties

14.	In the written application for leave to appeal to the Social Security Commissioner, the appellant’s representative submitted that the decision of the appeal tribunal was in error of law on the following grounds:

(i)	The tribunal accepted the report of the examination conducted by the examining medical practitioner (EMP) in its entirety despite the fact that during the hearing the appellant stated he had not advised the EMP that he could walk the stated distance.  Following a request by the appellant’s representative, the tribunal was unable to show the section signed by the appellant confirming content of the EMP report.  As a result of this there was an obvious conflict of opinion between the appellant and the EMP.  The appeal tribunal should have adjourned to locate the relevant document.  If the relevant document could not be found, an adjournment should have been permitted to obtain further medical evidence.  By failing to adjourn the appeal tribunal adopted a ‘closed mind’ and, by fully accepting the opinion of the EMP, found the appellant’s credibility to be questionable.

(ii)	The finding by the appeal tribunal that the appellant was on a reduced dosage of pain medication implied that he was in less pain.  In light of specific submissions made by the appellant’s representative, the appeal tribunal should have explored the medication issue in more detail.  In failing to do so the tribunal has failed in its inquisitorial role.

(iii)	The appeal tribunal made reference to an orthopaedic report, and specific conclusions within that report, which had been prepared by a physiotherapist and not by a consultant surgeon.  The appellant had advised the tribunal that he had received a telephone call from his consultant surgeon advising him that he had arthritis in his knee joint and would possibly require a knee replacement in the future.  The tribunal could have adjourned in order that this evidence could be verified in writing by the appellant’s general practitioner (GP).  In failing to obtain such verification and accept the evidence given by the appellant, the tribunal failed to afford the appellant a right to a fair hearing.

(iv)	The appellant gave evidence contradicting the content of the EMP report which should have been explored by the appeal tribunal.  In failing to explore these contradictions, the appeal tribunal did not afford the appellant a fair hearing.

15.	As was noted above, in written observations on the application for leave to appeal, DMS opposed the application on the grounds submitted by the appellant but supported the application on two other grounds relating to questions which had been raised by the Social Security Commissioner.

	Observations during the course of an appeal tribunal hearing

16.	At paragraph 27 of R3/01(IB)(T) a Tribunal of Commissioners stated:

‘….we would state that a Tribunal can use its own observations in reaching an assessment of credibility.  It is, however, strongly desirable that a Tribunal seek a comment from the parties on specific observations of activity as opposed to a more generalised impression of the witness.  Comment on observations can be sought in an uncontroversial manner and it is up to the Tribunal whether or not it accepts any explanation which is given.  A Tribunal will not necessarily be in error if it does not seek such an explanation but it is much less likely to err if it does so.  It may, of course be in error if the observations raise a fresh issue not already in contention and the Tribunal does not seek comment on them.  For example if an Examining Medical Doctor opines that a claimant always has to hold on when rising from a chair and the decision maker so accepts and awards points accordingly and the Tribunal observes the claimant to rise without holding on, it must mention the observations and seek comment.  Whether or not it accepts the explanation given is a matter for the Tribunal.’

17.	In paragraphs 16 and 17 of R(DLA)8/06 Commissioner Jacobs stated:

‘16.  An observation can only be taken into account if it is reliable.  The problem with an observation is that it is a limited snapshot on a particular day.  It may not give a reliable picture of the claimant’s disablement……..

17.  The significance of an observation can only be assessed in the context of the evidence as a whole and the evidence may have to include the result of further inquiries into the issues of relevance and reliability…..’

18.	In C26/10-11(DLA), I stated the following, at paragraph 23:

23.	The legal principles concerning the extent to which an appeal tribunal may take into account its observations of an appellant at an oral hearing are clear.  In addition to those principles set out in R3/01(IB)(T) and R(DLA)8/06 cited by DMS, in R1/01(IB)(T), a Tribunal of Commissioners stated, at paragraph 13:

	‘… we wish to deal with one point.  In paragraphs 21 to 24 of decision R 4/99 (IB), Mrs Commissioner Brown held that a Tribunal, like any other adjudicating body, is entitled to use all its senses in assessing the evidence before it and may take account of what it sees as well as hears.  She referred to decision CDLA/021/1994 (now reported as R(DLA)1/95), in which a Great Britain Commissioner, Mr Commissioner Skinner, said: -

	“… The tribunal are precluded from conducting a walking test or making a medical examination of the claimant.  However, it does not appear to me that the tribunal’s ocular observation of the claimant can be said to amount to a physical examination nor can it be said that the claimant has been required to undergo any physical test.  It does not seem to me that the tribunal [which took into account observations made by the members during the hearing] were in breach of the prohibition contained in the section.  I have considered whether the reliance by the members of the tribunal on their own observation of the claimant may be objectionable on other grounds.  It seems to me that a tribunal are entitled to have regard to what they see provided that the weight to be attached is considered carefully. …”

We agree with those views.  In the context of a Tribunal hearing, sight is one of the more important senses.  Observing the manner in which a witness gives his or her evidence and how he or she behaves or responds at other times is an important part of the process.  Witness A may be wholly convincing while everyone who listens to and observes witness B soon becomes certain that he or she is lying.  A Tribunal must, of course, consider its observations carefully and judiciously.  The neatly dressed man who has said he is unable to look after himself may be lying.  On the other hand, the Tribunal may be seeing the results of extensive efforts by his family or friends to tidy him up for the hearing.  Further, a Tribunal which is going to base its decision, or an important part of its decision, on what it has seen should usually put its observations to the claimant and thereby give him an opportunity to comment.  It will then be for the Tribunal to accept or reject the comments.  Whether or not this is necessary will depend in a large measure on whether the Tribunal’s observations raise a new issue or constitute fresh evidence or whether they merely confirm existing evidence.’

19.	In the instant case, the appeal tribunal, in the statement of reasons for its decision in respect of the mobility component of DLA, stated that:

‘On the day of the hearing (the claimant) entered and left the room with no discernible walking restriction and he carried no walking aid.’

20.	It is clear to me that the appeal tribunal placed an emphasis on its ocular observations of the appellant’s ability to walk in and out of the appeal tribunal hearing room with no restriction and with no walking aid.  In those circumstances, it was, in my view, incumbent on the appeal tribunal to seek comment from the applicant.  Its failure to do so renders its decision as being in error of law.

	The principles in C2/10-11(IB)

21.	In C2/10-11(IB), I stated the following, at paragraphs 22 to 32:

‘22.	Article 13(8)(b) of the Social Security (NI) Order 1998 provides – 

‘(8) In deciding an appeal under this Article, an appeal tribunal – 

(a)……….

(b) shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.’

23.	Article 13(8)(b) exhorts appeal tribunals to concentrate on the decision under appeal, and, more particularly, the date of the decision under appeal.  The applicability of Article 13(8)(b) has to be considered, however, in the context of the social security appellate structure.  It is inevitable that the appeal tribunal hearing will take place at a date later to the date of the decision under appeal.  In the majority of cases, the date of the appeal tribunal hearing will be at least some months after the date of the decision under appeal and, in some rare instances, may take place at a date some years after the date of the decision under appeal.

24.	It is equally often the case that the appellant, or any representative whom the appellant might have and, in rare instances, the Department, as the other party to the proceedings, may also have, between the date of the decision under appeal and the date of the appeal tribunal hearing, sought to adduce further evidence considered to be relevant to the issues arising in the appeal.  Moreover, the appeal tribunal itself has the legislative power, under regulation 51(4) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, to adjourn an appeal tribunal of its own motion for the purpose, for example, of production of additional evidence.

25.	In oral hearings, where the appellant is in attendance, the appeal tribunal will also usually hear the oral evidence of the appellant given, therefore, at a time which post-dates the decision under appeal.

26.	In short, therefore, an appeal tribunal may find that there is before it evidence which post-dates the decision under appeal.  The question arises, therefore, as to how the appeal tribunal should deal with such evidence in light of the rule set out in Article 13(8)(b) of the Social Security (NI) Order 1998.

27.	In R(DLA) 2/01, Commissioner Jacobs considered how disability appeal tribunals (as they then were) should consider evidence which post-dated the decision under appeal, in light of a then extant rule in section 33(7) of the Social Security Administration Act 1992. Section 33(7) provided that a disability appeal tribunal should ‘… not take into account any circumstances not obtaining at the time when the decision appealed against was made.’

28.	In R(DLA) 2/01, the date of the decision under appeal was 15 September 1998.  The appeal tribunal hearing took place on 18 February 1999, when the appeal tribunal had before it oral evidence from the appellant that he had had a serious operation in January 1999, and also had before it a letter from the appellant’s GP, dated 3 November 1998.  The statement of reasons for the appeal tribunal’s decision recorded, in two separate places, that ‘we hear’ the case on the basis of the evidence which was before the adjudication officer on 15 September 1998.

29.	At paragraph 9 of the decision, Commissioner Jacobs noted that:

	‘… In the case of a claim for a Disability Living Allowance, the jurisdiction {of an Appeal Tribunal} is limited to the inclusive period from the date of claim to the date of the decision under appeal.  The only evidence that is relevant is evidence that relates to the period over which the tribunal has jurisdiction.  However it is the time to which the evidence relates that is significant, not the date when the evidence was written or given.  It does not limit the tribunal to the evidence that was before the officer who made the decision.  It does not limit the tribunal to evidence that was in existence at that date.  If evidence is written or given after the date of the decision under appeal, the tribunal must determine the time to which it relates.  If it relates to the relevant period, it is admissible.  If it relates to a later time it is not admissible.’

30.	In relation to the case before him, Commissioner Jacobs found that the appeal tribunal appeared wrongly to have limited itself to the evidence which was before the adjudication officer.  In relation to the evidence which post-dated the decision under appeal, and which was before the appeal tribunal, Commissioner Jacobs noted, at paragraph 11:

	‘The claimant told the tribunal that his disablement at the time of the hearing was the same as that at the date of the adjudication officer’s decision.  The tribunal’s statement records that the claimant had had a serious operation on 8 January 1999 and was now recovering.  Although the statement does not say this in so many words, the implication is that although the claimant was recovering from his operation, he was nevertheless worse than he had been at the date of the adjudication officer’s decision.  That may have been correct.  However, that did not mean that by appropriate questioning the tribunal could not have obtained relevant evidence from the claimant as to his condition at the relevant time, perhaps by comparison with his condition at the date of the hearing.  The tribunal was not entitled to reject the claimant’s oral evidence on the ground that it was not before the adjudication officer.  The same point applies with greater force to the claimant’s evidence in his letter of appeal to the tribunal which was written about two weeks after the adjudication officer’s decision.  This evidence was also covered by the tribunal’s blanket rejection.’

31.	In R(DLA) 3/01, Commissioner Jacobs considered the effect of section 12(8)(b) of the Social Security Act 1998, the equivalent in Great Britain to Article 13(8)(b) of the Social Security (Northern Ireland) Order 1998, in light of his comments in R(DLA) 2/01. At paragraph 58 he stated:

	‘Section 12(8)(b) limits an appeal tribunal’s jurisdiction by preventing it taking into account a fresh circumstance.  It is only concerned with evidence in this respect: evidence is not admissible unless it relates to circumstances obtaining at the date of the decision under appeal.  I stand by the statement of law that I set out in [R(DLA) 2/01] para.9 … In relating later evidence to the time of the decision, the claimant’s evidence is admissible, although it will, like all evidence, have to be weighed by the appeal tribunal.’

32.	The decisions in R(DLA) 2/01 and R(DLA) 3/01 were considered by Commissioner Brown in C24/03-04(DLA).  In that case, the Commissioner stated, at paragraphs 6 to 8:

	‘6.	I shall deal first with the third ground of appeal.  The ground is based on the provisions of Article 13(8)(b) of the Social Security (Northern Ireland) Order 1998.  That provision is as follows: -

	“In deciding an appeal under this Article, an appeal tribunal –

	a)	…

	b)	Shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.”

	7.	This is a mandatory provision.  It prevents the Tribunal from taking account of circumstances not obtaining at the date of the decision under appeal.  It does not relate to evidence whenever it came into being, which is relevant to what the circumstances were up to the date of the relevant decision.  It does not prevent the Tribunal taking into account evidence obtained after the decision under appeal was made, for the purpose of drawing inferences as to the circumstances obtaining when or before the decision was made.  For example, if a claimant tells the Tribunal that his situation now is the same as it was at the date of the decision under appeal and produces evidence as to his present walking ability, why should that latter evidence if accepted not be used to determine the circumstances at the date of the claim?

		The Tribunal in deciding the appeal must not take into account circumstances which did not obtain at the time of the decision under appeal.  However, it is entitled to take account of any evidence which indicates what those circumstances were.

		In this connection I would refer in particular to decision CDLA/4734/99, a decision of Mr Commissioner Jacobs in Great Britain.  As Commissioner Jacobs stated at paragraph 57 of that decision: -

		“There is a difference between a circumstance and evidence of that circumstance.”

At paragraph 58 he stated: -

	“Section 12(8)(b) [the Great Britain equivalent to Article 13(8)(b)] limits an Appeal Tribunal’s jurisdiction by preventing it taking into account a fresh circumstance.  It is only concerned with evidence in this respect: evidence is not admissible unless it relates to circumstances obtaining at the date of the decision under appeal.  I stand by the statement of the law that I set out in CDLA/2934/1999, paragraph 9: -

	“In the case of a claim for a Disability Living Allowance, the jurisdiction [of an Appeal Tribunal] is limited to the inclusive period from the date of claim to the date of the decision under appeal.  The effect is also to limit the evidence that is relevant to the appeal.  The only evidence that is relevant is evidence that relates to the period over which the tribunal has jurisdiction.  However, it is the time to which the evidence relates that is significant, not the date when the evidence was written or given.  It does not limit the tribunal to the evidence that was before the officer who made the decision.  It does not limit the tribunal to evidence that was in existence at that date.  If evidence is written or given after the date of the decision under appeal, the tribunal must determine the time to which it relates.  If it relates to the relevant period, it is admissible.  If it relates to a later time, it is not admissible.””

	8.	I can put the matter no better than Mr Commissioner Jacobs did in the above extract with the caveat as regards the final sentence in relation to which I would add only this, that the evidence may relate to the period over which the Tribunal has jurisdiction even though it also relates to a later time so long as it sheds light on the circumstances obtaining at the date of the decision under appeal …’

22.	In the instant case, the date of the decision under appeal to the appeal tribunal was 9 June 2008.  In the statement of reasons for the appeal tribunal’s decision, the appeal tribunal makes reference to 19 July 2008 and 6 October 2008.  In relation to the specific duties on the appeal tribunal, with respect to its assessment of evidence which post-dated the decision under appeal, Mrs Hulbert, for DMS submitted that:

‘Whilst the tribunal has referred to article 13(8)(b) and as such is clearly aware of the importance of this provision, in its reasons the tribunal state it based its decision on the ‘quite substantial medical evidence’ which would appear to have included the above reports.  In view of this I would submit it was incumbent on the tribunal to determine the period to which the reports of 19 July 2008 and 6 October 2008 relate to.  It is my submission that its failure to do so does not conform with the principles of C2/10-11(IB), therefore the tribunal has erred in law.’

23.	I am in agreement with the submission made by Mrs Hulbert.  The appeal tribunal’s assessment of the medical evidence which post-dated the decision under appeal did not conform to the guidance and principles set out in C2/10-11(IB).  That failure also renders its decision as being in error of law.

	The appellant’s grounds for appealing to the Social Security Commissioner

24.	Having found that the decision of the appeal tribunal is in error of law, on the basis of the reasoning set out above, I do not have to consider the appellant’s other grounds for appealing.  I would indicate, however, that I would not have found the decision of the appeal tribunal to be in error of law on the other grounds cited by the appellant.

25.	In particular I would note that it is clear that the appeal tribunal considered the submissions that the appellant found contradictions in the report of the EMP and, in the statement of reasons for its decision, gave a clear and unequivocal explanation to the appellant, and his representative, concerning the submissions which had been made.  Accordingly, I could not conclude that the decision of the appeal tribunal is in error of law on this cited ground.

26.	Further, I would not agree that the appeal tribunal failed to explore all of the issues arising in the appeal.  In my view, all issues raised by the appeal, either expressly or apparent from the evidence were fully examined by the appeal tribunal in conformity with its inquisitorial role.

27.	Finally, I would also not agree that the appeal tribunal should have adjourned the appeal tribunal hearing to obtain clarification of submitted inconsistencies and/or to obtain additional medical evidence.  An appeal tribunal has the legislative power, under regulation 51(4) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, to adjourn an appeal tribunal of its own motion.  Such an adjournment might be for the attendance of an appellant or other witness, or for the production of additional evidence.  A decision by an appeal tribunal as to whether or not to adjourn is one within its own judicial discretion.

28.	As was indicated by Mrs Commissioner Brown at paragraph 16 of C6/05-06(IB):

“I do not consider that the tribunal need even consider adjourning unless there is something to indicate that the appeal should not be heard on the papers.  It therefore follows that unless there is some such indication the tribunal need not consider adjourning and need not refer to having considered adjourning … If there is no indication that determination on the papers would not lead to a fair hearing the tribunal need not adjourn nor even consider adjourning.”

29.	The appeal tribunal’s decision to proceed to determine the appeal on the basis of the evidence before it was rational, and one which it was entitled to make.  Further, the appellant was represented at the oral hearing of the appeal by an experienced representative who did not make any application for an adjournment in light of any submitted inconsistencies.

	Disposal

30.	The decision of the appeal tribunal dated 20 August 2009 is in error of law.  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.

31.	I direct that the parties to the proceedings and the newly constituted appeal tribunal take into account the following:

(i)	the decision under appeal is a decision of the Department, dated 9 June 2008 in which a decision-maker of the Department decided that the appellant was not entitled to DLA from and including 17 August 2008;

(ii)	the Department is directed to provide details of any subsequent claims to DLA and the outcome of any such claims to the appeal tribunal to which the appeal is being referred.  The appeal tribunal is directed to take any evidence of subsequent claims to DLA into account in line with the principles set out in C20/04-05(DLA);

(iii)	it will be for both parties to the proceedings to make submissions, and adduce evidence in support of those submissions, on all of the issues relevant to the appeal; and

(iv)	it will be for the appeal tribunal to consider the submissions made by the parties to the proceedings on these issues, and any evidence adduced in support of them, and then to make its determination, in light of all that is before it.

(signed):  K Mullan

Commissioner

4 February 2011