PLH                                                                           Commissioner's File: CI 4335/01

SOCIAL SECURITY ACTS 1992-1998
	
APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for:	Disablement Benefit
Appeal Tribunal:  	Birmingham
Tribunal Case Ref:  	U/04/024/2000/03870
Tribunal date:	7 August 2000
Reasons sent:	16 August 2001 (signed on 13.09.2000)

[ORAL HEARING]
1.	In my judgment there was no error of law in the decision of the tribunal sitting at Birmingham on 7 August 2000, when they held that on the evidence before them the claimant had not established she was suffering any loss of faculty from 25 March 1997 onwards in consequence of having fallen from a ladder at work while hanging Christmas decorations on 10 December 1996.  I therefore dismiss the claimant’s appeal against that decision as there is no ground for me to set it aside under section 14 Social Security Act 1998, though the practical effect of this may be limited in view of certain further determinations which I was told have since been given on the same question, as a result of either a further claim or further consideration being given to the existing one, leading to a more favourable result for the claimant which (it was confirmed to me) is accepted by the Secretary of State.  
2.	Leave to bring this appeal was given by another Commissioner, who also subsequently ordered an oral hearing.  In due course (following two postponements and rearrangements at the request of the claimant) that hearing took place before me, when the claimant appeared and was represented by Ms L Murray of counsel instructed by Morgans, solicitors, and Huw James, solicitor, appeared for the Secretary of State.  Much of the discussion at the hearing centred on the effect of the later determinations but the appeal to me was solely against the tribunal decision of 7 August 2000 and it was agreed, in my view entirely correctly, that it was still properly constituted under the 1998 Act so that it remained my duty to determine it under section 14, even if the practical effect might be limited.
3.	The two issues of law identified by the Commissioner at the time of granting leave to appeal were first whether the apparent delay of over a year before the tribunal’s statement of reasons was issued to the parties following the hearing on 7 August 2000 invalidated the decision itself, and second whether the tribunal were in error in having proceeded to determine the case on the documentary evidence before them on that date without conducting their own medical examination of the claimant, which would have entailed an adjournment of the proceedings as she had written in electing not to attend the hearing at all and asking for the case to be dealt with on paper.
4.	The first of these points became in my judgment unarguable when the actual facts about the tribunal’s statement of reasons were obtained, in consequence of a further direction given shortly before the case was first due to come before me for hearing.  The chairman’s very clear and helpful notes at pages 106-7 show conclusively that there was no delay at all in the preparation of the statement, which she had herself (quite rightly, in the context of this case) decided should be given, without the need for any application for it from the parties.  She dictated the statement on the day of the hearing itself and subsequently, after it had been typed and approved, signed it as the statement of the tribunal’s reasons on 13 September 2000, intending it then to be issued.  The tribunal administration then appears quite wrongly to have held up the issue of the statement because there was a pending application to have the decision set aside, and subsequently failed to go ahead and issue it even after that had been determined on 19 October 2000.  The claimant was entitled to the apology she later got from the tribunal service for this administrative blunder, but it does not in my judgment bring the case within the principles that apply where a very belated decision or judgment has to be set aside in law. The relevant question, as Ms Murray fairly and rightly agreed, is whether there are grounds for thinking the ability of the court or tribunal to give proper consideration to the facts has been adversely affected by delay before a reasoned decision is arrived at.  That cannot be the case here as the decision was reached at once, for reasons recorded clearly and in detail very shortly afterwards.
5.	I am similarly not persuaded there is anything more in the second point about the tribunal not having adjourned with a view to conducting its own examination of the claimant.  The documents before the tribunal show the claimant to have been an intelligent and extremely articulate person, well able to understand the nature of the proceedings she was bringing and also the implications of not attending the hearing herself to give evidence in person as she expressly chose not to do.  The record of the tribunal’s proceedings at page 44 of the appeal file shows they did specifically note that there was a signed certificate that neither party had requested an oral hearing, and did specifically consider and determine that it was not appropriate for the case to be adjourned for such a hearing of their own motion.  Decisions of that nature depend on matters of degree on the evidence in the individual case which are for the tribunal themselves to assess, and Mr James was in my judgment right to say that although the tribunal as an inquisitorial body has always to consider whether the evidence before them is sufficient to reach a proper decision on the claimant’s true entitlement, that is a matter for them.
6.	In my judgment, the decision of an experienced specialist tribunal on such questions as whether an oral hearing or physical examination of the claimant is necessary (cf. regulations 39, 52 Decisions and Appeals Regulations 1999 SI No 991) is not open to challenge by way of an appeal on law, unless or until the point is reached where it can be said, for example, that there was no material at all before the tribunal to justify the view it took, or its decision was perverse in the sense that no reasonable tribunal properly directing itself as to the law could have acted as this tribunal appears to have done. The tribunal’s decision in the present case is nowhere near being open to challenge on that kind of basis for having proceeded to deal with it on the documentary evidence on 7 August 2000 as the claimant had asked.
7.	For those reasons I am not satisfied that either of the two points identified at the time leave was granted, now they have been fully considered, amounts to a ground for setting aside the tribunal’s decision of 7 August 2000.  In my judgment there is no other arguable ground for saying that decision was erroneous in law, and I therefore dismiss the claimant’s appeal.
8.	As noted at the outset of this decision that may not however be the end of the story, because as I understand it from the further documents produced to me the Secretary of State did in fact embark on a reconsideration of the case at some time during the year 2000, as a result of the claimant either having submitted a fresh claim or having submitted further medical evidence in support of her original claim of 30 June 1999 after that had been determined by the tribunal.  The result of this reconsideration was more favourable to her, in that a decision on behalf of the Secretary of State was given on 20 December 2000 that she did after all have a loss of faculty from her accident of 10 December 1996, assessed at 10% for the period from 5 July 1999 to 31 May 2001 (page 108); and this assessment was in turn substantially altered in her favour to one of 50% for the period from 25 March 1997 to 24 March 2003 by the decision of another tribunal on appeal on 17 April 2001 (tribunal reference U/04/032/2000/00827).  Mr James confirmed on instructions that the Secretary of State was not seeking to question the assessment of disablement embodied in that last decision, which would in practice be accepted and applied so far as relevant in calculating benefit, even if my decision was not to set the earlier tribunal decision aside.  
9.	In recording what I was told about the Secretary of State’s position I record also for clarity that these two tribunal decisions deal only with the question of the existence, and assessment, of a loss of faculty from the claimant’s accident of 10 December 1996.  They do not deal with the question of any entitlement to benefit resulting from that assessment, or in particular with the date from which any such entitlement is to begin.  That is a separate question depending on the date of the relevant claim or reason for the case being reconsidered; and the start of any actual entitlement (e.g. for the purpose of calculating any arrears of benefit) may well be considerably later than that of the assessment period itself. 

(Signed)

P L Howell
Commissioner
25 June 2002

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