CDLA/1347/1999

DECISION OF THE COMMISSIONER

1.	This is an appeal, brought by the claimant with my leave, against a decision of the Sunderland Disability Appeal Tribunal dated 27 January 1999 whereby they held that the claimant was not entitled to the care component of disability living allowance.  The tribunal did not disturb the claimant’s award of the mobility component at the higher rate.

2.	There was before the tribunal a report from an examining medical practitioner.  Page 26 of the standard report form provides a space for an examining medical practitioner to record information which is not for disclosure to the claimant.  The top of the page is printed with the following instructions:-

	“Harmful Information

	Please ensure that anything written on this page is of such nature that, if disclosed to the disabled person it would be medically harmful to their health.  You must not write anything here that is otherwise confidential or potentially embarrassing to either the disabled person or the author.”

In the present case, the examining medical practitioner had written on that page three points:-

	“1.	Typical scenario of husband playing a ‘side role’ reinforced by and/or modified by wife as accounts given by them together and separately were different when wife moved away for a short time - 3 times moved away from the scene of examination.

	2.	Wondered why he has to go through examination as he is already getting mobility for one more year (awarded for 2 years) - appeared concerned about losing it as he wanted the care part only - inquired 3 times during my examination.

	3.	Exaggerated disability accounts of his knee and compulsive obsessive disorder.”

That page was omitted from the bundle of documents supplied to the claimant and his representative before the tribunal’s hearing, which was a hearing on the papers only.

3.	Regulation 8 the Social Security (Adjudication) Regulations 1995 (substantially re-enacted as regulation 42 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999) provided:-

	“(1)	Where, in connection with the consideration and determination of any claim or question there is before an adjudicating authority medical advice or medical evidence relating to a person which has not been disclosed to him and in the opinion of the adjudicating authority or, in the case of a tribunal or board, its chairman, the disclosure to that person of that advice or evidence would be harmful to his health, such advice or evidence shall not be required to be disclosed to that person.

	(2)	Evidence such as is mentioned in paragraph (1) shall not be disclosed to any person acting for or representing the person to whom it relates or, in a case where a claim for benefit is made by reference to the disability of a person other than the claimant and the evidence relates to that other person, shall not be disclosed to the claimant or any person acting for or representing him, unless the adjudicating authority, or in the case of a tribunal or board its chairman, is satisfied that it is in the interests of the person to whom the evidence relates to do so.

	(3)	An adjudicating authority shall not be precluded from taking into account for the purposes of the determination evidence which has not been disclosed to a person under the provisions of paragraphs (1) or (2).

	(4)	In this regulation ‘adjudicating authority’ includes the Secretary of State in a case involving a question which is for determination by him.”

There was a similar provision in regulation 14 of the Social Security Commissioners Procedure Regulations 1987 (now substantially re-enacted in regulation 22 of the Social Security Commissioners (Procedure) Regulations 1999).

4.	Although page 26 was not disclosed to the claimant or his representative, it was in the tribunal’s file.  It was accompanied by what appears to be a certificate by a Benefits Agency Medical Service doctor on form DLA 555, stating - without reasons being given - that what appeared on page 26 was properly to be regarded as harmful information, and a standard form DLA 338 sent by the adjudication officer to the Tribunal Service in the following terms:-

	“The attached medical advice has been received stating that it would be harmful to this person’s health if the information it contains were disclosed to them.  This information has accordingly not been conveyed to them or their representatives and, subject to your agreement, it will not be included in the case documents prepared for the appeal.  It is provided in regulation 9 of the Social Security (Adjudication) Regs [1986 - the predecessor of regulation 8 of the 1995 Regulations] that the tribunal may take such information into account without disclosing it to either the person or their representative if the chairman accepts that it would be harmful to the person’s health for it to be disclosed.  It additionally makes provision that the information may be withheld from the person but disclosed to their representative where it is in the interests of the person.

	If you agree that disclosure would be harmful in this case, will you please record your agreement accordingly and indicate whether it is in this persons interests to disclose the information to their representative.  This letter will be associated with your set of papers to enable you to draw the attention of the members of the tribunal to the matter.

	It is suggested that no reference should be made to the information in the findings of the tribunal and that, if this person attends the hearing, no reference should be made to it in the course of the hearing.  If it is not possible to avoid all reference to the information in the report of the proceedings, it is suggested that the reference should be made in a separate note marked ‘Not to be disclosed to Mr/Mrs/Miss ******* and their representative’.

	In the event of your being of the opinion that the tribunal should not take the information into account unless it is disclosed to this person the Adjudication Officer would respectfully request that these papers be returned as early as possible so as to allow the position to be reconsidered.”

5.	When a claimant applies to a Commissioner for leave to appeal, the tribunal’s file is obtained and placed before the Commissioner.  Therefore, when the claimant’s application came before me, I had page 26 of the examining medical practitioner’s report and had to consider its significance.  It did not appear to me to contain any information that might be harmful to the claimant, but before disclosing it I gave the Benefits Agency Medical Service the opportunity of explaining why disclosure might be harmful to the claimant’s health.  The response was that the information on page 26 of the examining medical practitioner’s report would not be harmful to the claimant’s health and could be disclosed.  An apology was given for the incorrectly completed form DLA 555.  I then directed that page 26 of the report be disclosed and I asked the claimant’s representative whether the claimant had seen it before the tribunal hearing.  The answer was that he had not.  In the light of that reply I granted leave to appeal and raised the question whether there was an unjustified breach of the rules of natural justice if the tribunal had the document but the claimant did not.

6.	The adjudication officer submits:-

	“4.	Since the tribunal hearing there has been investigation made into whether certain evidence from the EMP report was withheld from the claimant and his representative.  The Benefits Agency Medical Service Adviser has given the opinion that the evidence in question would not have been harmful to the claimant’s health.  There is nothing in the tribunal Statement of Material Facts and Reasons for Decision to indicate that the tribunal had considered this evidence and document 120A [page 26 of the examining medical practitioner’s report] is not listed in the Schedule of documents at the front of file.  I respectfully submit that the Commissioner did not rule that the evidence in this document should be added to the file until after the date of the tribunal hearing.  I submit that it is clear that the evidence in question (page 26 of the EMP report) was not before the tribunal and if it was not then there would be no breach of the rules of natural justice and therefore no error of law in this respect.”

I do not accept that page 26 of the examining medical practitioner’s report was not before the tribunal.  As form DLA 338 recognises, any reference to a document containing harmful information is liable to reveal its contents.  Accordingly, it would not be mentioned in the schedule of evidence which is to be issued to a claimant.  Nor would it be mentioned in the statement of material facts and reasons for decision that was issued to the claimant.  A supplementary statement could, and perhaps should, have been issued to the Secretary of State (as is suggested in form DLA 338) but I am not prepared to infer from the lack of such supplementary statement that the tribunal did not have the harmful information before them.  The information was in the tribunal file (as has been made clear to the parties on this appeal) and it had been sent to the Independent Tribunal Service by the adjudication officer expressly so that the tribunal could take it into account.  If the tribunal did not have the information before them, they should have done.  It seems to me that, in the absence of any indication to the contrary, I must presume that the tribunal did have the document before them.

7.	Whenever a tribunal has material evidence before them that has not been disclosed to a party, there is a breach of the rules of natural justice because that party is deprived of the opportunity of addressing to the tribunal any argument of specific significance of the evidence.  However, regulation 8(3) of 1995 Regulations expressly authorised such a breach of the rules of natural justice where disclosure of evidence to a claimant would be harmful to his health.  In R(A) 4/89, it was said that the power to withhold evidence on those grounds “should be exercised with caution”.  I agree.  The adjudicating authority must be satisfied that the inevitable breach of natural justice is the lesser of the two evils and where a claimant is represented must consider whether there is any reason why the information should not be disclosed to the representative on the understanding that it will not be revealed to the claimant.  If the evidence is withheld, it may be necessary for the tribunal not to make even any indirect reference to it if the feared harm is to be avoided and I am therefore doubtful about the practicality of the suggestion made by the Deputy Commissioner in CSDLA/5/95 that claimants must be “given sufficient indication of the gist of that evidence to give them a proper opportunity to put forward their case”.  Similar considerations mean that it may be impossible for the tribunal to make any reference at all to the withheld evidence in any statement of reasons for their decision that is issued to the claimant.  However, that does not affect the duty to give full reasons to the Secretary of State (or the claimant’s representative if the evidence was disclosed to him or her).  The suggestion made on form DLA 338 that there might be a separate supplementary statement of reasons, marked “not to be disclosed to [the claimant]”, seems to me to be very sensible.  Evidence that is properly regarded as harmful is likely to be important and the Secretary of State is entitled to know whether or not it has been ignored.  If there is an appeal, the Commissioner will then also know how the evidence was approached.

8.	However, before any of those considerations arise, a tribunal must be satisfied that the evidence falls within the terms of regulation 8.  If it is not, the breach of natural justice inherent in withholding the evidence is not authorised.  In the present case, the third of the three points recorded on page 26 of the examining medical practitioner’s report was in fact a matter which had been revealed to the claimant on page 25 of the report and is therefore of no significance.  Points 1 and 2 were not even points of “medical advice or medical evidence” and, in any event, I do not consider that any tribunal, properly instructed as to the law, could reasonably have concluded that that evidence was likely to be harmful to the claimant’s health.  The same problems arose on the evidence that was withheld in R(A) 4/89.  In CSDLA/5/95 the evidence withheld was medical evidence but it is not easy to see how it could have been regarded as harmful to the claimant’s health to disclose it.  Indeed, I find it almost impossible to conceive of a case relating to disability living allowance, attendance allowance, incapacity benefit or severe disablement allowance where evidence that is wholly adverse to a claimant’s case is likely to be harmful to his health.  It seems to me that the more difficult cases relating to those benefits are cases where the harmful evidence supports the claimant to some extent but not sufficiently to persuade the adjudicating authority to decide the case entirely in his or her favour.  In cases where causation is in issue on claims for industrial injuries benefits, it may be necessary to consider the application in regulation 8 where evidence would be adverse to claimants and those cases may raise even more difficult questions as to how the need to avoid harm to the claimant’s health should be balanced against the need to avoid a breach of the rules of natural justice.  Where a tribunal does conclude that a breach of natural justice is the lesser of the two evils, they must consider what steps should be taken to minimise the risk that that breach will lead to real injustice.

9.	Where evidence that has been withheld from a claimant is not regarded by a tribunal as harmful, it does not automatically follow that it should be disclosed to the claimant at once.   There is much to be said for the suggestion in the last paragraph of form DLA 338 that the adjudication officer (now the Secretary of State) should be allowed to consider his position before the evidence is disclosed.  The evidence will have been marked “harmful” on medical advice and will have been produced by the adjudication officer or Secretary of State on the ground that it is relevant to the case.  Where it is apparent that the medical advice that disclosure of the evidence would be harmful was based on faulty reasoning, it may be right simply to ignore the advice but where, as in the present case, no reason is given and none is apparent, it may be wise to give the Benefits Agency Medical Service doctor the opportunity of explaining the advice.  Another approach might be simply to ignore the alleged harmful evidence but, if the evidence is favourable to the claimant, that would not be right and, if the evidence is favourable to the Secretary of State, he ought to be able to express a view on the issue.  If a tribunal consider it to be impractical to seek the Secretary of State’s view but decide to ignore evidence that they have before them, they should record that fact in a supplementary statement of reasons.  If a tribunal adjourns the case so that it may be heard by another tribunal who have not seen the withheld evidence at all, either the withheld evidence should be removed from the file altogether and returned to the Secretary of State or else it should be clearly marked so that a Commissioner seeing a file in the event of an appeal can be sure that it was not provided to the tribunal members.

10.	In the present case, the tribunal erred in law either in regarding the information on page 26 of the examining medical practitioner’s report as medical advice or medical evidence that was likely to be harmful to the claimant’s health or in not considering at all whether it should be disclosed to the claimant.  In my view that page ought to have been disclosed.  It was material evidence and was part of a report, the rest of which was in evidence before the tribunal.  The failure to disclose that document to the claimant when it was before the tribunal was a breach of rules of natural justice which renders the tribunal’s decision erroneous in point of law.

11.	As I can allow the appeal on that ground, it is unnecessary for me to consider all the other points raised by the parties who both complain about the tribunal’s reasoning.  There is just one point of importance. The hearing was on the papers.  In their statement of material facts and reasons for their decision, the tribunal said:-

	“8.	An earlier hearing was adjourned to afford an opportunity to [the claimant] for him to attend, but he has not responded, so we are therefore unable to obtain further evidence from him.”

The claimant’s representative submits:-

“.... that paragraph 8 of the statement is incorrect.  The Appellant was not aware that an oral hearing of his case had been previously listed.  Indeed, [he] specifically requested that his appeal be heard on the papers due to the extent of his physical and mental disabilities.  However, it is submitted that, even if it was the case that an oral hearing had been previously listed, this does not constitute a valid reason in law for the Appellant’s appeal to be refused.”

In fact, the case had previously been listed for a paper hearing on 12 January  1999 but was adjourned on that date because the tribunal wished to warn the claimant that his award of the mobility component was at risk.  The tribunal gave the following direction:-

	“To be re-listed as a paper appeal unless [the claimant] contacts the tribunal within 14 days requesting an oral hearing.”

No oral hearing was requested.  It was a mere 15 days later that the appeal was determined.  I am not entirely sure that the claimant was ever sent a copy of the decision given on 12 January 1999.  I have even more doubt as to whether the further submission made by the claimant’s representative on 15 January, in apparent ignorance of the hearing on 12 January, was before the tribunal on 27 January.  It was received by the Independent Tribunal Service on 18 January but annotations on it suggest that it may not have caught up with the tribunal file until after the second hearing.  That is not of significance on this appeal, although it would be if this appeal were not being allowed on other grounds and it also raises questions about the tribunal service’s administration.  What is of more general importance is the issue raised by the claimant’s representative’s broad criticism of the tribunal’s reasoning.

12.	Of course, he is right that mere non-attendance at a hearing is not, by itself, a ground for dismissing an appeal.  However, if a claimant does not attend a hearing, the tribunal cannot obtain from him or her the answers to any questions that they feel are raised by the evidence.  In some cases, they may conclude that the claimant has not attended for the specific purpose of avoiding having to answer such questions and so they may draw an adverse inference against the claimant.  In other cases, of which this is one, the tribunal is simply left in ignorance as to what the answers might be and whether they might have strengthened the claimant’s case.  In my view, a tribunal are perfectly entitled to make a comment to that effect in their reasoning.  That is all that was being stated in the present case.  If a tribunal are wholly unable to do justice without there being an oral hearing, they ought to adjourn the proceedings and direct that there be one, but in a case where a claimant has had notice of the relevant issues and has deliberately elected not to seek an oral hearing, as happened in this case, a tribunal are generally entitled to take the view that the claimant has had sufficient opportunity to put his or her case, even though there is a possibility that oral evidence might have strengthened it.  I appreciate that the claimant in the present case may have practical difficulties in attending a hearing but, if that is so, he or his representative could have discussed the difficulties with the tribunal service and considered ways of resolving them.  As this case must now be heard by another tribunal, that opportunity will arise again.

13.	I allow the claimant’s appeal.  I set aside the decision of the Sunderland disability appeal tribunal dated 29 January 1999 and I refer the case to an appeal tribunal whose members shall not have been members of the tribunal whose decision I have set aside.  I direct that the tribunal do not consider the claimant’s entitlement to the mobility component of disability living allowance unless the Secretary of State specifically invites them to do so in a submission which explains to the satisfaction of the tribunal the extent of the tribunal’s jurisdiction to consider that component in the light of the provisions formerly to be found in section 33 of the Social Security Administration Act 1992 and the provisions now to be found in the Social Security Act 1998.  If such a submission is made, the Secretary of State should identify clearly the date from which he invites the tribunal to consider that component.

M. ROWLAND
Commissioner
7 January 2000