TW-v- Department for Social Development (DLA) ]2011] NICom 188
Decision No:  C12/11-12(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 15 October 2009

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.  The decision of the appeal tribunal dated 15 October 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.

2.	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, and with some regret, given the protracted nature of the proceedings to date, I refer the case to a differently constituted appeal tribunal for re-determination.  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.

3.	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

4.	This appeal has a detailed and complicated background and is inextricably linked to a further appeal [C11/11-12(DLA)] and this decision has to be read in light of the further decision which was made in that appeal.

5.	The background is as follows.  On 7 December 2007 a decision-maker of the Department superseded a previous decision of an appeal tribunal, dated 16 September 2005 and awarded an entitlement to the higher rate of the mobility component of DLA from and including 16 December 2006 and the middle rate of the care component of DLA for the period 16 December 2006 to 15 December 2009.  Following a request to that effect from the appellant, on 14 January 2008, the decision dated 7 December 2007 was reconsidered but was not changed.

6.	An appeal against the decision dated 7 December 2007 was received in the Department on 24 January 2008.  The appeal tribunal removed entitlement to the higher rate of the mobility component of DLA, from and including 16 December 2006, but agreed that entitlement to the middle rate of the care component should remain in place for the period from 16 December 2006 to 15 December 2009.

7.	Following a successful appeal to the Social Security Commissioner the tribunal decision was set aside by a Commissioner and the appeal was remitted for a re-hearing to a differently constituted appeal tribunal.

	Proceedings before the appeal tribunal

8.	Two appeals were listed for hearing before an appeal tribunal on 16 October 2009.  The appellant was present together with his partner and was represented.  The Department was represented by a Departmental presenting officer.

	In the papers which are before me I have:

(i)	a record of proceedings, a statement of reasons and two decision notices in connection with an appeal which had been given reference number ‘CR/4138/09/37/D’ by the Appeals Service (TAS); and

(ii)	a record of proceedings, a statement of reasons and two decision notices in connection with an appeal which had been given reference number ‘CR/1739/09/37/D’ by TAS.

9.	The statement of reasons for the appeal tribunal’s decision in the appeal with the reference number ‘CR/1739/09/37/D’ begins with the following statement:

‘The first issue for the Tribunal was whether there was evidence on the basis of which the original decision could be superseded’.

10.	There is no further reference to what ‘the original decision’ actually was.

11.	The two decision notices under the reference number ‘CR/1739/09/37/D’ read as follows:

‘Decision upheld.  Claimant is entitled to the Higher Rate of the Mobility Component of Disability Living Allowance from 16/12/06.’

‘Appeal Disallowed, Decision Confirmed

Claimant is entitled to the middle rate of the Care Component of Disability Living Allowance from 16/12/06 to 15/12/09.’

12.	It seems to me that the appeal tribunal, in the case under reference number ‘CR/1739/09/37/D’ was considering an appeal against the decision dated 7 Decision 2007 on a remittal of that appeal by the Social Security Commissioner.

13.	An application for leave to appeal against the decision of the appeal tribunal was received in TAS on 14 January 2010.  On 18 January 2010 the application for leave to appeal was refused by the legally qualified panel member.

	Proceedings before the Social Security Commissioner

14.	On 22 February 2010 a further application for leave to appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners.  On 10 May 2010 observations were sought from Decision Making Services (DMS) and these were received on 10 June 2010.  Written observations were shared with the appellant on 16 June 2010.  On 25 July 2010 comments in reply were received from the appellant which were shared with DMS on 27 July 2010.  On 10 September 2010 the late application for leave to appeal was accepted by a Social Security Commissioner for special reasons.  On 15 September 2010 I directed an oral hearing of this and the related application.  The oral hearing of the applications took place on 15 November 2010.  At the oral hearing of the applications the appellant was represented by Ms Cogavin and the Department was represented by Mr Collins of DMS.  Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions.

	Errors of law

15.	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.

16.	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?

17.	In the record of proceedings for the appeal tribunal hearing, the following is recorded:

‘Claimant and Presenting Officer agree that the papers contain the evidence necessary and that subject to the parties making full additional statement and Submissions as they wish no further evidence ie required to enable the Tribunal to decide the case.  [This sentence read over to parties and agreed].

Claimants representative

Suggests High Rate Mobility and High Rate Care.  Claimant needs attention during day and night.  Prolonged/repeated attention at night.  Repeated – twice or more – twenty minutes is prolonged (CPAG Welfare Handbook)

Claimant states is confident that some proper solution will be reached to this long running problem.  The conditions are long term and progressive.

Presenting Officer

Nothing to add to submission.’

18.	In the statement of reasons for the appeal tribunal’s decision, the greater part of the reasons is taken up with an assessment of the ‘evidence’ of the appellant and that of his partner.  The appeal tribunal found that:

‘The claimants [sic] evidence and that of his partner was extensive and in the Tribunals [sic] view somewhat over dramatised.’

19.	Further the appeal tribunal found ‘… a variety of medical reports cast doubt on some of the claimants [sic] claimed problems …’.The appeal tribunal found that ‘…. The Tribunal had reservations about the claimants [sic] evidence as regards his ailments other than fibromyalgia and is not convinced that these problems were as severe or as frequent as the claimant suggests.’

20.	It is clear, therefore, that the appeal tribunal undertook an assessment of the appellant’s ‘evidence’ even though the record of proceedings for the appeal tribunal hearing confirm that no oral evidence was so adduced.  It is equally clear that the appeal tribunal, following an assessment of the appellant’s ‘evidence’, formed a view of it.

21.	In the application for leave to appeal to the Social Security Commissioner, the appellant has submitted that:

‘The record of proceedings shows that no evidence was taken nor did any of the parties at the hearing comment about the substantial issues.  It also shows that the tribunal took no evidence from me or my partner about my conditions, care needs or how my conditions affect me.  Yet the panel members decided that my partner and I over dramatized these.  If they had doubts about the validity of the evidence before them, the panel members should have asked questions at the Tribunal in order to clarify the situation.  However, the LQM stated that there was enough evidence for this to be unnecessary.  It can be seen from the reasons this was not the case as there was doubt and misunderstanding over many issues resulting in conjecture and supposition being used.’

22.	In response to the written observations on the application for leave to appeal, the appellant’s representative submitted that:

‘An oral tribunal gives the chance for panel members with relevant expertise to study the evidence, ask relevant questions and, after listening to the answers and considering their replies, further questioning may be prompted.  This process should enable the panel to learn more about the witnesses and assess their credibility.  How can a tribunal decide whether or not a witness is credible if they don’t speak to them?  If they feel that evidence is overdramatised this should be queried enabling the witness to explain and the panel to assess whether this now makes sense.  The only panel member to speak was the legal representative.

The reason for the tribunal in September 2005 putting a review date has been explained at the beginning of relevant facts so the record of proceedings stating that “Accepted by both parties . . . believed it would” is not correct and doesn’t make sense.

We did feel that there was enough evidence for the case to have been decided without further questions however, we didn’t realise that the panel had decided we were not credible witnesses and would therefore be disputing all evidence provided by us.  Had we known that, we would not have agreed.

Mr Collins is mistaken in his assumption that the statement of reasons shows that questions were asked and evidence given.  The 3 paragraphs he refers to had nothing to do with the hearing, as stated previously, no questions were asked.’

23.	In Quinn v Department for Social Development ([2004] NICA 22), the Court of Appeal emphasised that assessment of evidence and fact-finding role is one for the appeal tribunal.  At paragraph 4 of R(DLA) 3/04, Mrs Commissioner Brown had made similar remarks:

‘I should state at the outset that the weight to be given to any evidence is completely a matter for the Tribunal.  The weight to be given to an item of evidence is a matter of fact.  That means that I can disturb it only if that conclusion as to weight is one which no reasonable Tribunal could have reached.  Having examined Dr M...’s report I do not consider that the Tribunal’s conclusions as to the weight to be given to it are such as no reasonable Tribunal could have reached.’

24.	In CIS/4022/2007, and after analysing a series of authorities on the issue of the assessment of credibility, including R3/01(IB)(T), the Deputy Commissioner 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".’

25.	I refer, in particular, to the fourth principle as accepted by the Deputy Commissioner namely that 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.  The further emphasis is, of course, my own.

26.	In the instant case, the appeal tribunal had decided that the appropriate case management was to determine the issues arising in the appeal solely on the basis of the paper evidence and submissions which were before it, and sought agreement from the parties to the proceedings to manage the appeal in that way.  In those circumstances, it seems to me that the requirements of natural justice were such that the appeal tribunal was obliged to indicate to the appellant and to his representative that the assessment of the evidence which was before it would include an assessment of the appellant’s and/or the representative’s credibility.  Further the appeal tribunal’s findings following an assessment of the evidence would include findings on the appellant’s and representative’s credibility.  Had the appeal tribunal taken further oral evidence from the appellant and/or representative, it would have given the appeal tribunal the opportunity to put inconsistencies and discrepancies to whichever witness and invite their comments on them.  The procedure which was adopted by the appeal tribunal did not allow for that to happen.  As the appellant’s representative has put it, in her comments on the observations, from Mr Collins, on the application for leave to appeal, neither she nor the appellant would have agreed to the proposed management of the appeal had they been aware that credibility was a key issue for the appeal tribunal and was at stake.

27.	Accordingly I conclude that the proceedings were not conducted in accordance with the principles of natural justice and find that the decision of the appeal tribunal is in error of law on that basis.

	Disposal

28.	The decision of the appeal tribunal dated 15 October 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.

29.	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, 7 December 2007, which superseded a decision of an appeal tribunal, and which decided that the applicant was entitled to the higher rate of the mobility component of DLA from and including 16 December 2006 and the middle rate of the care component of DLA from 16 December 2006 to 15 December 2009;

(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):  Kenneth Mullan

Chief Commissioner

5 July 2011