RL-v-Department for Social Development (IB) [2013] NICom 61
Decision No:  C1/13-14(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCAPACITY BENEFIT

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 10 November 2011

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is a claimant’s application for leave to appeal from the decision of an appeal tribunal sitting at Ballymena on 10 November 2011.

2.	An oral hearing of the application has been requested. However, I consider that the application can properly be determined without a hearing.

3.	I grant leave to appeal. I set aside the decision of the appeal tribunal under Article 15(8)(b) of the Social Security (NI) Order 1998 and I remit the appeal for redetermination by a newly constituted tribunal.

REASONS

	Background

4.	The applicant claimed incapacity benefit (IB) from the Department for Social Development (the Department) on 20 November 2007, being awarded national insurance credits on the basis of incapacity for work. On 5 November 2010 the applicant completed a Departmental questionnaire (IB50) and returned it. On 27 April 2008 the applicant was examined by a healthcare professional on behalf of the Department. On the basis of all the evidence the Department decided that the applicant did not satisfy the personal capability assessment and was not entitled to incapacity credits from and including 17 May 2011. He appealed.

5.	A tribunal considered the applicant’s appeal but disallowed it. He requested a statement of reasons, which was issued on 4 January 2012 and re-issued on 23 February 2012. On 28 February 2012 he requested the legally qualified member (LQM) of the tribunal to grant leave to appeal to the Social Security Commissioner. Leave was refused by a determination issued on 16 March 2012. On 16 April 2012 the applicant applied to a Social Security Commissioner for leave to appeal.  

	Submissions

6.	The applicant submits that the tribunal erred in law as:
	
	(i)	he doesn’t think he was listened to at the hearing, as there was an erroneous finding recorded in relation to his medication;

	(ii)	the tribunal “made me out to be a liar”;
	
	(iii)	he rarely leaves the house;

	(iv)	he tribunal only had two members;

	(v)	the record of proceedings contained inaccurate details or omitted details. 

7.	The Department was invited to make observations on the grounds of application.  Mr Hinton of Decision Making Services responded on behalf of the Department.  He submitted that the tribunal had not erred in law and indicated that the Department opposed the application for leave to appeal.

8.	Subsequently, Ms Murphy of the Sinn Féin Office in Dunloy made further representations on the applicant’s behalf.  She submitted that the procedures at the Department’s medical examination and at the tribunal were unfair and discriminatory for someone suffering from mental illness.  She further criticised the tone of the “letter from the Department”.  This appeared to be based upon a misunderstanding that the tribunal’s statement of reasons had emanated from the Department.  She criticised the Department (meaning the tribunal) for its assessment of the applicant’s credibility, which rejected his statement regarding the medical assessor’s proficiency in English based upon the medical member’s personal acquaintance with or knowledge of the medical assessor.  She made further points relating to the tribunal’s findings.

9.	Prior to Ms Murphy’s involvement in the proceedings, the Legal Officer of the Office of the Social Security Commissioners had separately identified questions around the issue of the medical assessor’s use of English which he had directed to the Department.  These were:

	(i)	Did the tribunal put to the claimant its knowledge of the EMP’s command of English?

	(ii)	If not, ought it to have?
10.	Mr Donnelly had replied for the Department.  On the basis of the record of proceedings, he submitted that the tribunal did not specifically put to the applicant its knowledge of the EMP’s command of English.  As to the second question, he submitted that the issue was one factor among others in the assessment of the applicant’s credibility.  He submitted that tribunals do not have any universal obligation to explain their assessment of credibility, relying on R3/01(IB)(T), and on that basis submitted that the tribunal was not obliged to put to the applicant its knowledge of the EMP’s command of English.

	Assessment

11.	The applicant has submitted a number of grounds of application.  Some of these are clearly without a basis in law, such as his understanding that a tribunal constituted under regulation 36(2)(a)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations (NI) 1999 should have three members.  However, I do not propose to deal with the particular points raised by the applicant.

12.	One issue has been raised which I consider gives rise to an arguable error of law and on that ground I grant leave to appeal.  This is the ground relating to the tribunal’s reliance on personal knowledge to make a finding and whether it was obliged to put this to the applicant for comment.

13.	A tribunal is entitled to make use of its own local or specialised knowledge in determining an appeal.  Thus a tribunal sitting at a particular location to decide a disability living allowance appeal may ask a claimant about ability to walk in terms of the local street surroundings, or a medical member may ask specific questions regarding the treatment of a particular condition to assess its severity.  In general, however, matters within the tribunal’s knowledge must be put to a party for comment.  Thus, Willmer LJ in the Court of Appeal in England and Wales in R v. Deputy Industrial Injuries Commissioner ex parte Moore (reported as an appendix to R(I)4/65) said that “it would not be in accordance with natural justice to act on information obtained behind the backs of the parties without affording them an opportunity to comment on it”.

14.	In the present case a member of the tribunal has shared personal knowledge of a particular individual EMP with the other tribunal member in the process of the assessment of credibility.  This was a perfectly natural and understandable thing to do.  However, this personal knowledge also required to be shared with the applicant for comment.  I find that it was not put to the applicant for his response, and that the failure to put it to the applicant was a breach of the principles of natural justice.  I accept, as Mr Donnelly submits, that the issue of the EMP’s proficiency in English was only one factor among others in the assessment of credibility.  Nevertheless, it was a relevant factor and, as such, the breach of natural justice principles taints the overall conclusions of the tribunal.

15.	The case relied upon by Mr Donnelly was concerned with the issue of the requirement to give reasons for a tribunal’s assessment of credibility.  I entirely accept that, in cases where credibility is not accepted, tribunals do not need “to give reasons for their reasons”.  It is enough to reject evidence on the basis of a lack of credibility.  However, I do not consider that that principle assists in relation to the question of procedural fairness which arises in the present case.

16.	I consider that I should set aside the decision of the appeal tribunal and remit the appeal to a newly constituted tribunal for redetermination.

(signed):  O Stockman

Commissioner

29 August 2013