JMcG-v-Department for Social Development (DLA) [2011] NICom 238
Decision No:  C29/11-12(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 21 February 2011

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	Having considered the circumstances of the case and the grounds relied upon in the application for leave to appeal, I am satisfied that the application can properly be determined without a hearing.

2.	I granted leave to appeal and with the consent of the parties proceed to determine all questions arising thereon as though they arose on appeal.

3.	I find that there is not any valid ground for holding that the decision of the appeal tribunal dated 21 February 2011 contains a material error of law.  The decision of the appeal tribunal is accordingly confirmed.  The appellant remains entitled to low rate of the care component of disability living allowance (DLA) from and including 5 June 2008.

REASONS

	Background circumstances

4.	By a decision of an appeal tribunal made on 5 May 2009 the appellant had been awarded the low rate of the care component of DLA for an indefinite period from and including 5 June 2008.  By an application of 10 March 2010, she applied for supersession of the appeal tribunal’s decision.  In her application the appellant indicated that she did not question the level of award of the care component, but that her mobility difficulties, arising from sciatica and hip pain, had increased gradually over an eighteen month period.  She submitted an MRI scan report.  The Department requested and obtained a general practitioner (GP) factual report and an examining medical practitioner (EMP) report.  On 11 June 2010 the Department refused to supersede, on the basis that there had not been a relevant change of circumstances such as would lead to a change in entitlement.  The appellant appealed against the refusal to supersede.

5.	The appeal tribunal hearing the appellant’s appeal had before it documentary material including a submission from the Department, the supersession request on pro forma DLA434, the MRI scan report, the factual report from the appellant’s GP, the report of the EMP, the appellant’s medical records and a letter from the appellant dated 2 July 2010.  The appeal tribunal did not have the benefit of the appellant’s oral evidence as she opted not to attend the hearing of the appeal.  However, she was represented at the hearing by Mr Lafferty of the Citizens Advice Bureau.

6.	On 21 February 2011 the appeal tribunal heard and disallowed the appeal.  The appeal tribunal found that the appellant had not established that there had been grounds to supersede the existing award such as a relevant change of circumstances.  On 1 April 2011 the appellant made an application for leave to appeal to the Social Security Commissioner.  On 9 April 2011 the application for leave to appeal was refused by the legally qualified panel member.

	Proceedings before the Social Security Commissioner 

7.	On 27 April 2011 a further application for leave to appeal was received in the Office of the Social Security Commissioners from the appellant’s representative.  On 19 May 2011 written observations were sought from Decision Making Services (DMS) and these were received on 15 June 2011.  In these written observations, Mrs Hulbert opposed the application for leave to appeal by the appellant.

8.	On 15 June 2011, the written observations of DMS were shared with the appellant and her representative, with a request that any response to those observations should be made within one month.  No further response has been received.

	Submissions of the parties

9.	The appeal tribunal conducted a review of the evidence before it in its statement of reasons.  In the course of the statement of reasons they say,

“The Tribunal did not have the benefit of hearing oral evidence from the Appellant and had to determine this appeal on the papers alone.  The Tribunal did, of course, have the benefit of oral submissions made by the Appellant’s representative.  However, to the extent that these submissions strayed into the giving of evidence by the Appellant’s representative, these could not be taken into account by the Tribunal”.

10.	Through her representative, Mr Lafferty of the Citizens Advice Bureau, the appellant firstly advances the ground that the above statement is erroneous in law.  Secondly, in this context, the appellant submits that the appeal tribunal has erred as it has not made clear as to what was the evidence [of the representative] not taken into consideration by the tribunal and to what was simply a reinstatement of facts already before the tribunal, but highlighted by the representative.

11.	The appellant’s representative submits that any evidence of a representative, albeit hearsay, is admissible and that whilst there is no rule a tribunal must accept any evidence, it has a duty to carry out an evidential assessment and to explain why particular evidence was rejected.

12.	For her part, Mrs Hulbert submitted that a particular paragraph of the record of proceedings contained the submissions of Mr Lafferty, and that any information referred to by him was substantially contained in the written evidence given elsewhere in the documents before the appeal tribunal.  She observes that Mr Lafferty did make one submission to the effect that the appellant “could only manage to walk for 30-35 yards – with a stick- before needing to stop and rest for 30 seconds before continuing on” and that the appeal tribunal rejected this statement.  Mrs Hulbert submitted that as Mr Lafferty was present in the capacity of a representative rather than a witness, the tribunal was not obliged to accept any personal view of the claimant’s needs which he presented.

13.	She referred to unreported decision C73/98(IB) where Commissioner Brown stated at paragraph 10:

“10.	….

It is not good practice save in very exceptional circumstances for a representative to give evidence which can and should properly come from a claimant.  A representative's evidence is of little probative value.  Except in the unusual circumstances where he is testifying on his own knowledge, a representative is merely giving evidence of what he recollects he was told.  If he does not call his client to give evidence he will be at great risk of the Tribunal finding the case for his client unproven.”

14.	Mrs Hulbert submitted that the tribunal had considered all of the evidence which Mr Lafferty had referred to in his oral submission at the hearing.  She further submitted that in its lengthy reasons for decision the tribunal had explained why it accepted or rejected the evidence before it and how it came to the conclusion that there were no grounds to supersede the decision of the appeal tribunal dated 5 May 2009.

15.	More generally, she submitted that there was nothing to suggest that the tribunal did not take into account evidence reiterated by Mr Lafferty on the appellant’s behalf.  She submitted that the evidence presented by the representative was a repetition of that contained elsewhere within the departmental submission and that it was evident from the reasons for decision that clear consideration was given to that evidence.  She submitted that the tribunal had fulfilled its inquisitorial role.

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

16.	I consider that there is merit in the appellant’s first ground, namely the approach to the evidence of the representative.  The appeal tribunal has stated that evidence given by a representative could not be taken into account by the tribunal.  This suggests that the approach of the appeal tribunal was to disregard any evidence given by the representative, even if this might have a bearing on the matters for consideration by the appeal tribunal, and without regard to the personal knowledge of the representative of the matter in question.  Such an approach could amount to an error of law.

17.	Specifically, by regulation 49(7)(a) of the Social Security (Decisions and Appeals) Regulations (Northern Ireland) 1999 (“the Decisions and Appeals Regulations”), any party to tribunal proceedings shall be entitled to be present and be heard.  By regulation 49(8) of the Decisions and Appeals Regulations a person who has the right to be heard at a hearing may be accompanied and may be represented by another person whether having professional qualifications or not and, for the purposes of the proceedings at the hearing, any such representative shall have all the rights and powers to which the person whom he represents is entitled.  By regulation 49(11) of the Decisions and Appeals Regulations, any person entitled to be heard at an oral hearing may address the tribunal, may give evidence, may call witnesses and may put questions directly to any other person called as a witness.

18.	Applying the equivalent legislation then still in force in Great Britain, Commissioner Jacobs in CDLA/2642/2003 at paragraph 10 summarised the effect of these provisions succinctly as:

“10.  So, the claimant was entitled to give evidence.  She was also entitled to be represented.  Her representative had the same rights and powers as she had.  That included the right to be heard.  And that triggered the right to give evidence.”

19.	In that case Commissioner Jacobs was dealing with a particular situation, where he was concerned with a representative who sought to give evidence from his own knowledge as a social worker.  He was not dealing with the different circumstance of a representative who wants to make a statement of the claimant's evidence to the appeal tribunal, based on the appellant’s instructions but in the absence of the appellant.

20.	In specific circumstances, the scope for a tribunal to consider evidence from a representative without personal knowledge may be more restricted, such as in R(SB)10/86 where a presenting officer sought to give evidence of prices of items in local shops without corroboration.  There it was held, at paragraph 5, that no tribunal should accept contested statements from a representative without supporting evidence.  This in turn was consistent with the approach of the GB Chief Commissioner in R(I)13/74 at paragraph 9 where he completely disregarded allegations of fact made by a representative except to the extent that they were supported by some evidence.  However, these cases must now be read in the light of regulation 49 of the Decisions and Appeals Regulations, and the resulting right of a representative to give evidence.  This right had not been expressly stated in the previous Regulations governing tribunal procedure.

21.	Nonetheless, as is made clear in the decision of Commissioner Brown in C73/98(IB), in terms of good practice, it is really only in exceptional cases that a representative should give evidence that could and should come from the appellant.  The evidence of a representative without personal knowledge has little probative value.  It would amount to hearsay evidence, and the weight given to it would be a matter for the appeal tribunal in all the circumstances of the case.  The evidence of a representative with personal knowledge will carry more weight.  This principle was reaffirmed by Commissioner Brown in C1/04-05(IB) at paragraph 17, where she says that “if a representative does give evidence it would be good practice to state clearly what is known of the representative’s knowledge and what he or she has been told by the claimant”.

22.	I therefore accept the submissions of Mr Lafferty and find that the exclusion of submissions made by him at the appeal tribunal hearing to the extent that they “strayed into the giving of evidence” amounted to an error of law.

	Was the error of law a material error?

23.	In order to dispose of the case, however, it is not sufficient to find that there has been an error of law in the decision of the appeal tribunal, it must amount to a material error of law.  In R(Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982, a decision approved by the Tribunal of Commissioners in R(I)2/06 in Great Britain and followed by the Northern Ireland Commissioners in many cases, it was stated that “errors of law of which it can be said that they would have made no difference to the outcome do not matter”.

24.	I therefore need to explore the consequences of the error of law on the likely outcome of the appeal.  Turning to the record of proceedings, it can be seen that the appeal tribunal recorded a number of statements in a lengthy paragraph beginning with the words “By way of further submissions…”.  In that paragraph the submissions or evidence of Mr Lafferty is recorded.  These refer to:

i)	an MRI scan showing degenerative change;
ii)	the appeal document;
iii)	a statement to the EMP;
iv)	a submission interpreting the statement to the EMP;
v)	submissions regarding grounds of supersession;
vi)	a further statement in the EMP report;
vii)	a statement in the DBD370 form;
viii)	the appellant walking with a limp;
ix)	the appellant waiting for an appointment with the pain clinic;
x)	the lack of benefit from hydrotherapy;
xi)	a further submission on grounds for supersession.

25.	Mr Lafferty does not submit that any of his submissions have been ignored or overlooked by the appeal tribunal.  I have considered the documents before the appeal tribunal and find that the appeal tribunal has given regard to all the matters referred to in Mr Lafferty’s submissions, bar one.  The only matter set out in submissions from Mr Lafferty which does not otherwise appear in the papers before the appeal tribunal – whether as a direct statement from the appellant in the DBD370 form, her letter seeking reconsideration or the appeal pro forma, as a finding of a medical test or as a recorded statement by the appellant to the EMP - is the reference to an appointment with the pain clinic.

26.	The appeal tribunal was satisfied that the appellant experienced a level of functional disability arising from low back pain, upholding the award of the low rate of the care component.  The appellant’s representative did not contest the award of the care component, but sought a supersession giving rise to entitlement to the mobility component.  Therefore the issue was whether the appellant satisfied the conditions of entitlement to the mobility component at any rate.  The appeal tribunal considered a variety of evidence including the appellant’s GP records, GP factual report and EMP report.  I am not convinced that the possible failure to consider the fact that the appellant had been referred to the pain clinic would have affected the appeal tribunal’s assessment of the appellant’s ability to walk, or requirement for guidance or supervision, as a referral appointment of itself gives no indication of the functional limitations experienced by an individual appellant.

27.	Mrs Hulbert had observed that Mr Lafferty did make one submission to the effect that the appellant “could only manage to walk for 30-35 yards – with a stick- before needing to stop and rest for 30 seconds before continuing on”, which I believe she understood to be an instance of Mr Lafferty giving evidence.  However, that statement is made by the appellant both at Box 6 of the EMP report and in the reconsideration request of 2 July 2010.  I do not consider this to be an instance of the representative giving evidence, but of referring to the previous written statements of the appellant.

28.	This was a supersession appeal where it was for the appellant to produce evidence to the appeal tribunal of a relevant change in her circumstances, or some other ground for supersession.  She elected not to attend the hearing of the appeal tribunal in order to give her own evidence of her condition.  Therefore it was a particularly difficult task for Mr Lafferty in all the circumstances to make his case to the necessary standard.  He relied upon the documentary evidence concerning the appellant’s condition and this was considered carefully and properly by the appeal tribunal.  In my judgment, the possible failure to consider the referral to the pain clinic could not realistically have made a difference to the outcome of the appeal.  I judge that it was not a material error.  I therefore disallow the appeal.

(signed):  O Stockman

Commissioner

8 December 2011