AKB-v-Department for Social Development (DLA) [2015] NICom 47
Decision No:  C1/15-16(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 2014

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 21 February 2014 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.  An appeal tribunal which has a medically qualified panel member is best placed to assess medical evidence and address medical issues arising in an appeal.  Further, there may be further findings of fact which require to be made and 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.  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 her 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.	On 29 July 2013 a decision-maker of the Department decided that the appellant did not have an entitlement to either component of DLA from and including 3 July 2013 on the basis of a renewal claim to that benefit.  On 29 August 2013 the decision dated 29 July 2013 was reconsidered but was not changed.  A signed letter of appeal was received in the Department from The Appeals Service (TAS) on 14 November 2013.

5.	The appeal tribunal hearing took place on 21 February 2014.  The appellant was present and was represented.  The Department was not represented.  The appeal tribunal disallowed the appeal and confirmed the decision dated 29 July 2013.

6.	On 18 August 2014 an application for leave to appeal to the Social Security Commissioner was received in TAS.  On 11 September 2014 the application for leave to appeal was refused by the legally qualified panel member (LQPM) of the appeal tribunal.

	Proceedings before the Social Security Commissioner

7.	On 16 January 2015 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 3 February 2015 observations on the application for leave to appeal were requested from Decision Making Services (DMS).  In written observations received on 13 February 2015, Mr Hinton, for DMS, supported the application for leave to appeal on one of the grounds submitted by the appellant.  Written observations were shared with the appellant and her representative on 13 February 2015.

8.	On 13 May 2015 I granted leave to appeal.  In granting leave to appeal I gave, as a reason, that an arguable issue arose as to whether the appeal tribunal took into account its ocular observations of the appellant at the oral hearing of the appeal and, if so, was obliged to put its conclusions on those observations to the appellant.

9.	On 13 May 2015 I also determined, having considered the papers that I was satisfied that the appeal could properly be determined without an oral hearing.  On 12 June 2015 a further submission was received from the appellant which was shared with Mr Hinton on 22 June 2015.

	Errors of law

10.	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.  What is an error of law?

11.	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.”

	Analysis

12.	At the oral hearing of the appeal, the appellant’s representative made a submission that the appellant should have an entitlement to the lower rate of the mobility component of DLA.  In the renewal claim form to DLA, which was completed and signed by the appellant on 4 June 2013, the appellant was asked, at page 13 of the form, whether she fell or stumbled when walking outdoors.  The appellant answered that question in the affirmative.  The appellant was also asked to provide reasons why she fell. The appellant’s reply was as follows:

‘Fall because my joints buckle.  Lower back can be attacked meaning it is not possible to as a core thing take my body weight.  I would rather stay in bed if not well enough otherwise I fall into things and covered in bruises and scars.’

13.	When asked to provide details as to how often she fell the appellant replied ‘Daily during attacks.’  Finally the appellant stated that she needed help to get up after a fall and indicated that ‘Sometimes I’ve had to lie on floor for a bit.’

14.	In the statement of reasons for its decision with respect to the mobility component of DLA, the appeal tribunal stated, at paragraph 12:

‘The Appellant’s Representative said that an award of the low rate of the Mobility component should have been made because of the Appellant’s tendency to fall.  At page 13 of the claim form the appellant had written that she was covered in bruises and scars after falls.  The Tribunal did not consider that the Appellant was significantly at risk from falling.  On the day of the hearing the Appellant entered the room with no walking aid and with no evident signs of poor balance or restricted mobility.  The GP factual report made no reference to falls.  No other medical record, including the surgery print out, made reference to injuries incurred after falls.

15.	In R(DLA)1/95, a Social Security Commissioner in Great Britain made the following observations, at paragraph 5, in relation to an appeal tribunal’s ocular observations of the appellant, during the course of an appeal tribunal hearing:

‘It seems to me that a tribunal are entitled to have regard to what they see provided that the weight to be accorded it is considered carefully.  Disability appeal tribunals are not bound by the technical rules relating to admissibility of evidence and the answer depends on the weight to be attached to such observation.  I remind myself of the words used by Birch J in R. v. Madhub Chunder [1874] 21 WRCR 13 at page 19.  “For weighing evidence and drawing inferences from it, there can be no cannon.  Each case presents its own peculiarities and in each commonsense and shrewdness must be brought to bear upon the facts elicited.  If the tribunal were to rely on its own observation alone, where such observation was contrary to the medical evidence, then it seems to me that the weight would be negligible.  However in the case before me the tribunal’s observation was but one of the factors which brought them to the conclusion that the claimant did not satisfy the conditions for the mobility component.’

16.	In R4/99 (IB), Commissioner Brown observed, at paragraphs 21 to 24:

’21.	In my view the Tribunal is entitled (as is any adjudicating body) to use all its senses in assessing evidence before it.  The essential question in this case appears to me to be whether or not the observations which all the members of the Tribunal made were to be treated as evidence or as a part of ordinary common sense in assessing evidence which was already given.  In my view what happened was the latter.  As Mr McA stated there was strong medical evidence against Mrs McG... in this case.  The Tribunal recorded in its decision:-

"The Tribunal decided on reading the medical evidence and hearing the Tribunal's Medical Assessor, that the appellant would suffer from pain and discomfort as a result of the osteoporosis.  The difficulty for the Tribunal was matching the medical evidence to the allegations of limitation made by the appellant, particularly in light of the observations of the Examining Medical Officer ("Examining Medical Officer").  The Tribunal also found that its own observations were in contradiction of the appellant's evidence particularly with regard to sitting where each Tribunal member noted that the appellant sat easily, without any "shifting" in the seat or apparent discomfort and without the need to rise."

	Later the Tribunal stated:-

"In respect of "sitting" our own observations as well as those of the Examining Medical Officer, led us to award (e) which did not attract points".

	Both these extracts are from the section headed "Findings of fact material to the decision".

	Under "Reasons for decision" the Tribunal stated:-

"The Tribunal in this case accepted that the appellant suffered from osteoporosis, from which she claimed back, neck and arm problems.  What the Tribunal did not accept was the level of limitation alleged by the appellant as a result of her medical problems.  The Tribunal as a whole felt her symptoms were exaggerated, especially in her questionnaire, but nonetheless also at the Tribunal hearing.

The Tribunal members each remarked on discussion that the appellant sat without apparent discomfort for well over 30 minutes, without shifting or moving about the seat.  We also took into account the clinical findings of the Examining Medical Officer as well as his observations in respect of her movements generally.

We find that although this lady would have some pain and discomfort with her condition, this would not be to the extent required for her to pass the All Work Test.  We noted her ability to faithfully swim and exercise as directed and believe if she could do these activities, even in some pain, then she could manage other activities.  We note also that tabulations 1 and 3 refer only to back pain.

In conclusion, on balance we accepted the evidence of the Examining Medical Officer for the most part, though we felt that the points awarded by the Examining Medical Officer and Adjudication Officer were a bit low".

22.	Against that background it appears to me that what the Tribunal was doing was not introducing fresh evidence but using its observations as one means of assessing the evidence which was already before it.

23.	Having read the record I do not consider that the Tribunal was in error of law in the method in which it conducted the hearing.  I specifically do not conclude that there was any violation of the rules of natural justice in the Tribunal using its ocular observations as one of the methods of assessing the evidence already before it without specifically asking for comment on its ocular observations.  The Tribunal was not itself providing evidence.  Its duty was to adjudicate on the evidence before it but it was entitled to use its own observations in so doing.  As the Commissioner stated in CDLA/021/1994:-

	"I remind myself of the words used by Birch J. in R .v. Madhub Chunder, (1874) 21 WRCR 13 at page 19: "For weighing evidence and drawing inferences from it, there can be no cannon.  Each case presents its own peculiarities and in each common-sense and shrewdness must be brought to bear upon the facts elicited.  If the tribunal were to rely on its own observation alone, where such observation was contrary to the medical evidence, then it seems to me that the weight would be negligible.  However in the case before me the tribunal's observation was but one of the factors which brought them to the conclusion that the claimant did not satisfy the conditions....""

24.	It appears to me also perfectly clear that the Tribunal's own observations were but one of the factors which brought it to the conclusion which it reached.  The fact that the observation was so specific in terms of one of the descriptors does not mean that observation was qualitatively altered into evidence.  It merely means that the observation pointed particularly sharply to the weight to be given to the evidence before it.

17.	In C34/99 (IB), at paragraph 20, Commissioner Brown observed:

‘… As regards the Tribunal's own observations the recording of same does not appear to have been influential in its decision.  Even if it had been it would not necessarily be an error for the Tribunal's observations of the claimant sitting in a chair with arms to be used as part of its assessment of evidence.  Tribunal's are not required to sit with closed eyes.  It would be in a situation to ascertain whether or not the claimant used any chair arms for support etc.  However, in this case, there is no indication that the observations influenced the Tribunal in its decision, rather the reverse as they are not recorded as part of the reasons for the decision nor in the findings.’

18.	In R3/01(IB)(T), a Tribunal of Commissioners noted, at paragraphs 27 to 28, that:

‘27.	Fifthly, 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 its 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 its observations and seek comment.  Whether or not it accepts the explanation given is a matter for the Tribunal.

28.	Where, however, a Tribunal makes an observation which is merely confirmatory of existing evidence it can use that observation as an aid to assessment of the evidence before it without necessarily having to seek comment.  Much will depend on whether or not a new issue is raised by the observations made.’

19.	Finally, in R(DLA) 8/06, Commissioner Jacobs, as he then was, stated, at paragraphs 13 to 19:

‘Tribunals have an inquisitorial function and may fail to comply with that function if they neglect to make appropriate inquiries in the light of an observation made during the hearing.  Tribunals must also ensure that the parties have a fair hearing and the failure to allow a claimant to comment on observations may be a violation of that duty, as in CDLA/440/1995 (cited by the Secretary of State).

14.	Like all evidence, a tribunal must not take observations into account unless they are relevant and reliable.  And, if they do take them into account, they must assess their proper significance.  Depending on the circumstances, this may require further investigation, analysis and, if the chairman provides a full statement of the tribunal's decision, explanation.  These stages are not entirely distinct, as the following discussion shows.

15.	An observation must be relevant to an issue of fact that is before the tribunal and to the time of the decision under appeal under section 12(8)(b) of the Social Security Act 1998.  The latter is the most obvious problem that arises with the relevance of observations, because they were made later than the time of the decision.  The tribunal cannot rely on them, unless it is possible to relate them back to that time: R(DLA) 2 and 3/01.  The tribunal will have to set the observations in the context of the evidence as a whole.  If that evidence does not disclose whether there has been a change in the claimant’s disablement, the tribunal cannot rely on the observations without further inquiry.

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.  Take as an example a claimant who has asthma.  The claimant may walk into the tribunal room and talk without any sign of breathlessness.  The claimant may have used an inhaler before coming into the room.  And the waiting and hearing rooms are likely to be warm and dry.  But that same claimant may be breathless without medication or in cold or damp conditions.  In other words, the tribunal’s observation is reliable only in the conditions and circumstances under which it was made.  Another factor is that asthma is known to be variable in its effects.  The observation may be an accurate picture of the claimant’s disablement on a day when the effects of the asthma are not severe.  But that same claimant might be severely breathless on a different day.  In other words, the tribunal’s observation does not give a picture of the claimant’s overall disablement.  The tribunal could not rely on the observation in this example without further inquiry.

17.	The significance of an observation can only be assessed in the context of the evidence as a whole and that evidence may have to include the result of further inquiries into the issues of relevance and reliability.  And the significance of the observation, once assessed, may vary.  At one extreme, it may be of no significance at all.  At the other extreme, it may alone be decisive on an issue.  In between, it may tip the balance of other factors, be just one of a number of factors taken into account in an overall impression, or just confirm a conclusion that is based on all evidence.  The extent to which further inquiries are appropriate may depend upon the significance that the observation is likely to have in the final deliberations.

18.	The significance of an observation cannot in practice be separated from the chairman’s explanation of how the tribunal reached its decision, because only by that explanation is it disclosed to anyone other than the panel members.  It is unfortunate that chairmen are often not as precise as they could be in stating the significance attached to an observation.  It is seldom that the observation will have been decisive.  It is more likely to be just one of a number of factors that were taken into account or merely confirmatory of a decision reached on other grounds.

19.	If an observation is used purely as confirmation of a conclusion that the tribunal would have reached anyway, there is no need for a tribunal to investigate it further or for the claimant to have a chance to comment on it.  However, if an observation is one of the factors taken into account in reaching a conclusion, any failure in the tribunal’s inquisitorial duty or violation of the right to a fair hearing will mean that the decision is wrong in law.  In De Silva v Social Security Commissioner [2001] EWCA Civ 539, the chairman recorded that the decision of the majority of the tribunal had been based on the evidence as a whole and referred to three pieces of evidence by way of example.  The claimant challenged the provenance of one of those pieces of evidence.  The chairman had attributed this evidence to the claimant, but he denied saying it, alleging that it was said by someone else at the hearing.  I dismissed the claimant’s appeal, saying that even if the tribunal did make the mistake alleged, it had not affected the outcome because it was only one of three factors listed and even together they were not comprehensive of the reasons for the tribunal’s decision.  The Court of Appeal decided that that was wrong.  As Lord Justice Latham explained at paragraph 11:

“Even though the Tribunal was careful to state that the decision was based upon all the evidence, the emphasis that it placed on this particular piece of evidence cannot be ignored.  If it was a mistake, which was the assumption that the Commissioner was prepared to make for the purposes of his decision, it must have had an effect on the decision of the majority.  That being so, I consider that the Commissioner’s decision was wrong in law.”
The Court of Appeal went on to decide whether the claimant had made the disputed statement and, having decided that he had, dismissed his appeal.’

20.	Applying those principles in the instant case, I have to ask whether the appeal tribunal was, to use the language of Commissioner Brown in R4(99)(IB), ‘using its observations as one means of assessing the evidence which was already before it’.  I ask this question because the appeal tribunal also made reference to evidence contained within a general practitioner factual report and the appellant’s general practitioner records.

21.	It is clear to me, however, that the appeal tribunal placed significant emphasis on its ocular observations of the appellant’s ability to walk in and out of the appeal tribunal hearing room.  It seems to me to be the type of case, envisaged by the Tribunal of Commissioners in R3/01(IB)(T), where the appeal tribunal’s ocular observations should have been put to the appellant in order to give her an opportunity to comment.  It would, of course, have been for the appeal tribunal to accept or reject any comments which have been made.  There is no evidence contained within the record of proceedings for the appeal tribunal hearing, or the statement of reasons for the appeal tribunal’s decision that comments were invited on the appeal tribunal’s ocular observations.  Indeed it is striking that there is no indication in the record of proceedings that the appellant was asked anything about the evidence which she gave within the renewal claim form concerning her propensity to fall and the effects of those falls, even without being asked to comment on her walking ability on the day of the oral hearing.  Accordingly, the failure of the appeal tribunal to put the observations and invite comments renders its decision as being in error of law.

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

22.	Having found that the decision of the appeal tribunal was in error of law on the basis of its failure to put the ocular observations on which it relied to the appellant, 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.

	Disposal

23.	The decision of the appeal tribunal dated 21 February 2014 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.

24.	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 29 July 2013 in which a decision-maker of the Department decided that the appellant did not have an entitlement to either component of DLA from and including 3 July 2013;

(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

Chief Commissioner

24 August 2015