IN THE UPPER TRIBUNAL	Appeal No.  CDLA/1588/2008
ADMINISTRATIVE APPEALS CHAMBER

Before Judge Mark

Decision:   I set aside the decision of the tribunal and remit the case to be reheard by another tribunal.

REASONS FOR DECISION

1.	This is an appeal by the claimant with the leave of a commissioner from a decision of the Liverpool Appeal Tribunal given on 3 December 2007 dismissing the appeal of the claimant from a decision of a decision maker issued on 16 April 2007 that the claimant was not entitled to any award of either component of disability living allowance from and including 12 January 2007.  Somewhat confusingly, in refusing the appeal, the tribunal stated in its decision notice that the claimant was not entitled to benefit from 2 February 2007.  There is no explanation for this change of date, which is inconsistent with the date of 12 January 2007 given on the application form DLA1 as the date from which the claim would be taken.

2.	The claimant was born in 1945, and suffers from a number of ailments including angina, diabetes, asthma and osteoarthritis, which her GP’s referred to as her main conditions in their reports.  She also has pointed out that she suffered from varicose veins in her legs and other problems which she has listed.  It is unnecessary for the purposes of this decision for me to deal with these in any detail, but if they contribute to her mobility problems and to problems self-caring, then evidence of them, and their effect, can be given to the new tribunal which will rehear this case.

3.	The claimant lives with two adopted children, who appear at the date of the claim to have been 14 and 15 years old, and for whom she cares.  Both have quite serious disabilities.

4.	The claimant’s case, supported by her GP is that she was at the relevant time already virtually unable to walk, being able to walk only about 30 yards before the onset of severe discomfort.  She was also examined by an Approved Disability Analyst (ADA) who considered that walking was restricted by the claimant’s asthma and osteoarthritis, but that she could walk out of doors slowly, but without halts for between 50 and 150 metres without severe discomfort.  There was a significant conflict between the ADA, who described the osteoarthritis as mild, and one of the GP’s, who described it as moderate to severe (including hands, feet, knees, hips and back).  The second GP, who is said to have prepared a report without access to relevant notes, described the osteoarthritis as moderate with painful joints, especially hands and feet, also knees, hips and back.  The claimant herself also appears to consider that her varicose veins add to her pain and discomfort while walking.

5.	The claimant also asserted extensive care needs arising from her osteoarthritis, asthma and urinary incontinence.  One of her GP’s (with access to her records) reported problems with dressing and undressing, getting in and out of the bath, although she could use a shower, and washing her feet, and that she was restricted in her ability to cook, could not peel or chop and needed help with the oven.  By contrast, the ADA found that the claimant could self-care and peel and chop vegetables, use taps and cope with pans.

6.	The ADA gave her report in a standard computerised form, problems with which have been referred to in a number of Commissioners’ decisions including CIB/476/2005 and CIB/511/2005, and in written submissions to the tribunal, the claimant’s representative criticised the ADA’s report in part on the basis that because it was computerised, it did not enable the ADA to use her own words and there was no evidence that it had been checked by the ADA for accuracy before it was used.

7.	Having read the report, there are a number of matters in it that suggest that it may not be fully accurate.  Thus, apart from slight impairment of both hands, full function is reported in both upper limbs, including the shoulders.  Yet this is followed by examination findings that the claimant could not touch left or right ear to shoulder because of stiffness, and raising both arms away from the side was restricted to around shoulder level.  In the case of the left arm this was stated to be due to pain and stiffness.  No reason was given in respect of the right arm.  So too, there was stated to be no functional loss in either lower limb although examination findings were that knee bending in both legs was slightly reduced and the ability to lift straight both the left and the right leg was reduced due to pain below the knee.  While these points may be insufficient alone to demonstrate that the report was inaccurate in other respects, they do appear to me to call for an explanation.

8.	The ADA’s report was the subject of a written complaint by the claimant, a copy of which was before the tribunal.  One of the matters of which she complains is that she is recorded as saying that she was always able to stand in the shower without difficulty for 15 minutes.  She denies having said that, and sets out what she claims that she did say, which was that she had fallen and hit her head and shoulder on the tiled bathroom floor.  She also stated that if she stood for any significant length of time, she would suffer severe pain in her hip and legs.  She also denied stating that her medication had fallen (as stated by the ADA) and affirmed that there had been no such fall.  I do not need to set out the other complaints as to inaccuracies.

9.	The claimant attended the tribunal hearing, was represented and gave evidence.  It appears, and this does not seem to be in issue, that the claimant reported that her condition had deteriorated since the date of the decision under appeal.  That was not something that the tribunal, or the new tribunal which will rehear this appeal, could take into account.  The claimant may therefore wish to consider whether to make a new claim pending the outcome of the rehearing of this case based on her further reduced abilities.

Mobility

10.	The tribunal preferred the assessment of the ADA to the other evidence as to the claimant’s mobility, and found that at the hearing the claimant had assessed that she could at that time walk about 60 metres.  The claimant, on this appeal, denies having given any such evidence.  The record of the proceedings refers to a distance/window test and that the claimant said she would “stop about 65 metres” and “starts to get pain about a sixth of the way up the road – c.30 metres”.  I am left with the strong impression that the claimant is unlikely to have made any reference to metres when looking out of the window and telling the tribunal how far she could walk on the road below, and that the reference to 60 or 65 metres is the private calculation of all or some of the tribunal members as to the distance indicated.  

11.	While it is unnecessary for me to consider whether there may have been any error of law in this respect, it seems to me that unless the claimant used the words “60 metres” or “65 metres”, the tribunal ought not to have made a bare finding that she assessed herself as being able to walk that distance.   It should set out the substance of what the claimant actually said, and how it got from that evidence to conclude that the distance in question was about 60 or 65 metres, for example by finding that the claimant indicated that she could walk from A to B on the road below and the tribunal had other evidence, which should have been identified and put to the claimant, that that distance was 60 or 65 metres.  

12.	The assertions by the claimant’s representative as to the gradient of the road and as to perspective are points that needed to be made to the tribunal, and do not give rise to errors of law which can be the subject of an appeal.  

Night time care needs

13.	The tribunal went on to comment that the claimant did not appear to have any night time care needs.  In fact the claimant stated in her application form (file, p.39) that she used the bathroom several times a night which caused the difficulties she had previously explained through getting out of bed.  This appears to be referring to her statement (file, p.29) that she always needed quick access to a toilet as she was unable to hold her water, and that the slowness caused by her arthritis and the coughing caused by her asthma resulted in several accidents a day – the reason why she wore pads daily.  It is plain that the claimant was asserting that she reasonably required help at night getting to the toilet to avoid such accidents.  The tribunal appears to have proceeded on the basis that she appeared to manage without help.  

14.	This appears to me to ignore two issues.  First, factually she claimed that she did not always manage, but had accidents.  Secondly, the question is whether she reasonably required help to avoid or reduce the risk of those accidents if the tribunal found that they occurred.  The tribunal’s comments as to the medical evidence suggests that it may not have accepted the claimant’s evidence because she had not told the doctors of this problem, but this is not clear and its reasons in respect of this claim are inadequate.

Inappropriate conduct of the tribunal

15.	Another issue raised on this appeal was that in a number of respects the conduct of the tribunal was inappropriate.  With one exception, I can find no merit in the matters raised.  The only point which in my judgment gives rise to any issue of law is one which was first raised only on the application for leave to appeal.  That is that the lay member of the tribunal was observed to fall asleep during the hearing.  Further details of this allegation were directed by a Commissioner, and the claimant’s representative, who was also at the hearing, responded that 

“[T]he Lay Member did appear to this representative and the observer also present to close their eyes for a sustained period of approximately 1-2 minutes during the hearing.  This offered to all intents and purposes the impression that the Lay Member did in fact ‘fall asleep’…  It is submitted that it may be of relevance that the earlier hearing ‘had ‘overran’ and this may offer some explanation of the Lay Member’s apparent fatigue and conduct.” 

16.	I note from the final page of the record of the proceedings that the case is recorded by the chairman as having started at 12.10 and ended at 1.30pm, although the claimant’s representative stated in his response that it started at about 11.45am and ended at about 1pm.  No direct evidence was provided from the observer.

17.	The comments of the lay member and the chairman were sought.  The lay member responded 

“I most certainly did not fall asleep.  Quite often I close my eyes to reflect and concentrate on the information being given by the Applicant.”

The chairman responded that he did not see the lay member fall asleep and that it was unlikely that he would have seen her with her eyes closed but he could not certainly recall this.  He pointed out that no mention of this was made at the hearing or indeed with the request for the statement of reasons.  He also described the lay member as very attentive and professional at hearings.

18.	In giving permission to appeal a Deputy Commissioner drew attention to the decision of the Court of Appeal in Stansbury v Datapulse plc, [2003] EWCA Civ 1951 that a hearing may be unfair even if a member of the tribunal only appears not to be awake or alert.  In that case, a member of an employment tribunal had been alleged to have been “apparently in a drunken state” and to have fallen asleep during the hearing.  As in the present case, no point had been taken as to this at the hearing.  Comments had been sought from the chairman and the two members.  Neither the chairman nor the other member observed the member concerned to have fallen asleep, although the chairman did occasionally smell alcohol on the breath of that member.  The member concerned denied smelling of alcohol (although not of having taken it) but stated that he had never fallen asleep during a hearing, although he may on occasions have closed his eyes to concentrate.  Further evidence was given at the hearing before the Employment Appeal Tribunal (EAT) as to the conduct of the member concerned, and that the chairman had at one point raised his voice to wake that member.

19.	Peter Gibson LJ gave the leading judgment in the Court of Appeal, and the other members of the court simply agreed with it.  He held that it was the duty of the EAT in that case to determine the issue before it.  In relation to the contention that the matter had not been raised before the tribunal, he stated at paragraph 23 –

“[I]n my judgment the EAT could properly decide, as they did in the present case, that the fact that the point had not been raised before the ET should not prevent the point being raised before the EAT on appeal.  It is always desirable that a point on the behaviour of the ET be raised at the ET in the course of the hearing, but it is unrealistic not to recognise the difficulty, even for legal representatives, in raising with the ET a complaint about the behaviour of an ET member who, if the complaint is not upheld, may yet be part of the ET deciding the case.”

20.	Peter Gibson LJ, in paragraph 21 of his judgment, quoted from the judgment of Morison J, when President of the EAT, in a case referred to simply as Kudrath, where he said that it would be a denial of justice were the EAT to refuse to intervene where a Chairman appeared to fall asleep if no complaint had been made at the time, and that the expectation that a professional advocate would raise the matter there and then was not a precondition to making an appeal.  He went on, in paragraph 24 of his judgment, to refer to McGonnell v United Kingdom [2000] 30 EHRR 289, where no objection on the ground of bias had been taken at the original hearing.  He continued –

“The European Court of Human Rights said that the matter turned on what was reasonable in the particular circumstances of the case.  In my judgment the approach suggested by Morison J in Kudrath was right.  It is appropriate to consider a failure to raise an objection before the ET against the test of reasonableness in all the circumstances of the case.”

21.	In paragraph 27 of his judgment, Peter Gibson LJ referred with approval to an earlier decision of an EAT in which it was said that it was axiomatic that all members of a tribunal must hear all the evidence and to have a trial in which one member of the tribunal is asleep even for a short part of the time, cannot be categorised as a proper trial.  Justice does not appear to have been done.

22.	He continued in paragraph 28 –

 “The EAT in Kudrath were, in my judgment, right to say that it was the duty of the Tribunal to be alert during the whole of the hearing, and to appear to be so… A member of a tribunal who does not appear to be alert to what is being said in the course of the hearing may cause that hearing to be held to be unfair, because the hearing should be by a tribunal each member of which is concentrating on the case before him or her.  That is the position, as I see it, under English law, quite apart from the European Convention on Human Rights.  It is reinforced by Article 6(1) of the Convention.”

23.	The EAT having failed to determine the factual issues, Peter Gibson found that the Court of Appeal should determine them, and found that the member of the tribunal had consumed alcohol and appeared to fall asleep and not to be concentrating, with the result that the appellant had not had the fair hearing to which he was entitled.

24.	In the present case, the representative of the secretary of state expressly did not request an oral hearing of this appeal.  He submitted that one or two minutes was quite a long time for a person who is awake at a hearing to close their eyes, and that this could give the impression that the person was not paying full attention.  He contends, however, that the representative gave no meaningful context to the alleged incident, or stated when it occurred or what was happening at the time.  He also pointed out that no witness statement was provided from the observer and no note of the proceedings by the representative had been produced, with the result that the allegation was not properly particularised or substantiated.  It is also contended that the representative had stated that he had objected at the hearing to the manner of questioning by the lay member and could equally have objected about the lay member appearing to be asleep.

25.	Had an oral hearing been requested of this appeal, I would have granted the request to enable the representative to be cross-examined by the representative of the secretary of state.  Without that request, I consider that I have sufficient information to determine the matter on the papers.  In the light of the representations of the lay member that she does close her eyes to concentrate on the information being given by the claimant, I see no reason to disbelieve the claimant’s representative that he did observe her with her eyes shut in such a way as reasonably to give him the impression that she was asleep or at the lowest not listening to what was being said.  Even with her eyes shut it would not have been difficult for a tribunal member who was concentrating on what was being said to demonstrate this by head movements and facial expressions.  The lay member gives no indication that she was doing this, and I am satisfied that on the balance of probabilities her eyes remained shut in the way I have described for more than a minimal length of time.  

26.	I do not attach any significance to the chairman’s statement that he did not see the lay member with her eyes closed.  I would expect that for most of the time he would be concentrating on the claimant and the representatives appearing before him, rather than watching the lay member.  Having read the comments of the chairman and the lay member, I am also not satisfied on the balance of probabilities that the lay member was in fact asleep, but I find that she did appear to be asleep or at the least she created the impression that her mind was elsewhere and she was not listening.  Given the complexities of this case, including the matters to which I have previously referred, I consider that the impression that she created that she was not listening to what was being said for a significant period of time resulted in the hearing being unfair.  I do not consider in all the circumstances that the claimant should be debarred from raising this point on appeal.  Nor do I consider that the fact that the representative contended that some questions were being put by her in a leading manner (ruled against by the chairman) indicated that he also had to object at the time to her apparently falling asleep, or lose the right to do so.

27.	In the end, I have concluded that the decision of the tribunal must be set aside on this account as well as for the error of law in giving inadequate reasons in respect of the night time care claim.  It would not be appropriate for me to attempt to substitute my own decision in this case and it must be remitted for rehearing to a new tribunal.  I express no view as to the likely outcome of the rehearing beyond saying that I do not consider that this is a case where, as the claimant’s representative put it, the facts found were such that no person acting judicially and properly instructed could have come to the determination in question.  The facts require further investigation and the outcome is unclear.

Michael Mark
Deputy Upper Tribunal Judge

	8 January 2009

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