TK-v-Department for Social Development (DLA) [2010] NICom 41
Decision No:  C26/10-11(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

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 1 May 2009

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	Having considered the circumstances of the case and any reasons put forward in the request for a hearing, I am satisfied that the application can properly be determined without a hearing.

2.	I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.

3.	The decision of the appeal tribunal dated 1 May 2009 is in error of law.  The error of law identified will be explained in more detail below.

4.	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.

5.	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 may be further findings of fact which require to be made.  Further 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.

6.	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.

7.	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

8.	On 24 September 2008 a decision-maker of the Department decided that the appellant was not entitled to DLA from and including 2 July 2008.  Following receipt of further information from the appellant, and an application for reconsideration, the decision dated 24 September 2008 was reconsidered on 6 October 2008 but was not changed.  The appeal was received in the Department on 14 October 2008.

9.	The appeal tribunal hearing took place on 1 May 2009.  There is no indication in the papers which are before me why it took seven months for the appeal to come to oral hearing.  The appellant was present at the oral hearing of the appeal.  The appeal tribunal disallowed the appeal and confirmed the decision dated 24 September 2008.

10.	On 9 September 2009 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.  On 15 September 2009 the application for leave to appeal was refused by the legally qualified panel member.

	Proceedings before the Social Security Commissioner

11.	On 21 September 2009 a further application for leave to appeal to the Social Security Commissioner was received in the Office of the Social Security Commissioners and Child Support Commissioners (OSSC).

12.	On 18 November 2009 the Chief Commissioner determined that the application could be determined without a hearing.  On 7 December 2009 further correspondence in connection with the decision of the Chief Commissioner in connection with the hearing of the application was received in OSSC.

13.	On 15 February 2010, observations were sought from Decision Making Services (DMS).  In addition to seeking observations on the general merits of the application, observations were sought on the appeal tribunal’s conclusions, in the statement of reasons for the appeal tribunal’s decision, concerning the appeal tribunal’s observations of the applicant leaving and entering the appeal tribunal room, in light of the decisions in R1/01 (IB)T, R3/01 (IB)T, and R(DLA) 8/06.

14.	On 18 February 2010 further correspondence was received from the appellant.

15.	The written observations from DMS were received on 9 March 2010.  DMS opposed the application on the grounds cited by the appellant but supported the application on a further ground.

16.	Written observations were shared with the appellant on 24 March 2010.

17.	On 25 March 2010 further correspondence was received from the appellant.

	Errors of law

18.	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.

19.	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.”

	The error of law in the instant case

20.	As was noted above, observations were sought on the appeal tribunal’s conclusions, in the statement of reasons for the appeal tribunal’s decision, concerning the appeal tribunal’s observations of the applicant leaving and entering the appeal tribunal room, in light of the decisions in R1/01 (IB)T, R3/01 (IB)T, and R(DLA) 8/06.

21.	In reply to this direction, DMS stated:

‘The Commissioner has also asked the Department to consider the following:

“Comments are sought on the appeal tribunal’s conclusions, in the statement of reasons for the appeal tribunal’s decision, concerning the appeal tribunal’s observations of the applicant leaving and entering the appeal tribunal room, in light of the decisions in R1/01(IB)(T), R3/01(IB)(T) and R(DLA)8/06.”

	In the record of proceedings the tribunal observed:

“Rises with one arm or arm of chair.  With handbag and second bag moves briskly from the room.”

	In the statement of reasons the tribunal also observed:

“The panel observed (the claimant’s) ability to walk in and out of the tribunal room and saw no evident difficulty.”

	At paragraph 27 of reported decision R3/01(IB)(T) a Tribunal of Commissioners stated:

“….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 it 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 the observations and seek comment.  Whether or not it accepts the explanation given is a matter for the Tribunal.”

	Furthermore in paragraphs 16 and 17 of R(DLA)8/06 Commissioner Jacobs stated:

“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……..

17.  The significance of an observation can only be assessed in the context of the evidence as a whole and the evidence may have to include the result of further inquiries into the issues of relevance and reliability…..”

	As can be seen the Commissioners agree that a tribunal can use its own observations when assessing evidence.  However this was tempered by the need to proceed with caution in this area.  Basically these decisions broadly concurred that if a tribunal was going to base part of its decision on what it has seen it should put its observations to claimants in order to give them an opportunity to comment.  On perusing the above it is clear that the tribunal made observations but did not provide (the claimant) with the opportunity to comment on same.  I would contend the onus was on the tribunal to do this because even though it observed that there was no “evident difficulty” with (the claimant’s) walking this observation could be seen as a limited snapshot on a particular day and would not provide a complete picture of (the claimant’s) mobility.  Evidence was presented both in the scheduled documents and at hearing to suggest that (the claimant) experienced some difficulties with mobility and at the hearing she described difficulties with mobility three days out of seven.  Whilst the tribunal had the right to conclude from the evidence that (the claimant) was not entitled to any rate of the mobility component I would contend that if it observed that she could walk in and out of the tribunal room without difficulty and that this formed part of the reasoning for its decision it had a duty to put this observation to (the claimant) for comment.

	In line with the above I would contend that the tribunal had a duty to seek comment from (the claimant) on its observations recorded at the hearing.  Failure to do so renders its decision erroneous in law.’

22.	I am in complete agreement with the submissions made by DMS in connection with the manner in which the appeal tribunal dealt with its observations of the appellant during the course of the oral hearing of the appeal.

23.	The legal principles concerning the extent to which an appeal tribunal may take into account its observations of an appellant at an oral hearing are clear.  In addition to those principles set out in R3/01(IB)(T) and R(DLA)8/06 cited by DMS, in R1/01(IB)(T), a Tribunal of Commissioners stated, at paragraph 13:

‘… we wish to deal with one point.  In paragraphs 21 to 24 of decision R 4/99 (IB), Mrs Commissioner Brown held that a Tribunal, like any other adjudicating body, is entitled to use all its senses in assessing the evidence before it and may take account of what it sees as well as hears.  She referred to decision CDLA/021/1994 (now reported as R(DLA)1/95), in which a Great Britain Commissioner, Mr Commissioner Skinner, said: -

“… The tribunal are precluded from conducting a walking test or making a medical examination of the claimant.  However, it does not appear to me that the tribunal’s ocular observation of the claimant can be said to amount to a physical examination nor can it be said that the claimant has been required to undergo any physical test.  It does not seem to me that the tribunal [which took into account observations made by the members during the hearing] were in breach of the prohibition contained in the section.  I have considered whether the reliance by the members of the tribunal on their own observation of the claimant may be objectionable on other grounds.  It seems to me that a tribunal are entitled to have regard to what they see provided that the weight to be attached is considered carefully. …”

We agree with those views.  In the context of a Tribunal hearing, sight is one of the more important senses.  Observing the manner in which a witness gives his or her evidence and how he or she behaves or responds at other times is an important part of the process.  Witness A may be wholly convincing while everyone who listens to and observes witness B soon becomes certain that he or she is lying.  A Tribunal must, of course, consider its observations carefully and judiciously.  The neatly dressed man who has said he is unable to look after himself may be lying.  On the other hand, the Tribunal may be seeing the results of extensive efforts by his family or friends to tidy him up for the hearing.  Further, a Tribunal which is going to base its decision, or an important part of its decision, on what it has seen should usually put its observations to the claimant and thereby give him an opportunity to comment.  It will then be for the Tribunal to accept or reject the comments.  Whether or not this is necessary will depend in a large measure on whether the Tribunal’s observations raise a new issue or constitute fresh evidence or whether they merely confirm existing evidence.’

24.	In the instant case, the appeal tribunal, in the record of proceedings for the oral hearing of the appeal, had noted:

‘With handbag and second bag moves briskly from the room.’

25.	In its statement of reasons for its decision in respect of the mobility component of DLA, the appeal tribunal stated that:

‘The panel observed (the claimant’s) ability to walk in and out of the tribunal room and saw no evident difficulty.  The tribunal had no evidence to suggest that her mobility was any more restricted at the date of the decision appealed.’

26.	Elsewhere in the statement of reasons, the appeal tribunal had noted the absence of medical evidence, due to the unwillingness of the appellant to consent to the release of her general practitioner records.  It is clear to me 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.  Further it drew a parallel between its observations of the appellant’s walking ability at the date of the appeal tribunal hearing and the date of the decision under appeal, drawing a conclusion that there was no increased level of restriction in the appellant’s mobility at the earlier decision date.  In those circumstances, it was, in my view, incumbent on the appeal tribunal to seek comment from the applicant. Its failure to do so rendered its decision as being in error of law.

27.	Having found that there was a procedural irregularity which was capable of making a material difference to the outcome or the fairness of the proceedings, 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.  In particular, the appellant was given every opportunity to ensure that her medical records were before the appeal tribunal, and declined to avail of those opportunities.  In those circumstances she cannot later charge the appeal tribunal with a failure to seek access to her medical records.

	Disposal

28.	The decision of the appeal tribunal dated 1 May 2009 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.

29.	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 24 September 2008 in which a decision-maker of the Department decided that the appellant was not entitled to (DLA) from and including 2 July 2008;

(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

Commissioner

10 May 2010