Decision No: C6/07-08(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCAPACITY BENEFIT

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 7 December 2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by me and I have treated the application as an appeal, by the claimant against a decision dated 7 December 2006 of an appeal tribunal (the tribunal) sitting at Belfast.  I granted leave although the Department opposed the application.  However, the Department consented to the Commissioner treating its observations as observations under Regulation 18(1) of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999.  The Department’s observations were sent to the appellant giving him the opportunity to comment thereon and he has done so.

2.	The decision of the tribunal is wrong in law.  I therefore set the tribunal’s decision aside and return the appeal for a new hearing.  

ERRORS OF LAW

Inadequate reasons

3.	At a prior hearing, it was noted that the appellant said that he disagreed with much that an examining medical practitioner (EMP) had written in her report and wanted an opportunity to cross-examine the Doctor.  At the tribunal hearing, it was again recorded on the record of tribunal proceedings that the appellant was unhappy about the absence from the hearing of the EMP.  The tribunal made no reference whatsoever to this in its reasons and wrongly concluded on its record that “…it did not have power to summons the Medical Officer…”

4.	Under regulation 49(1) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 (the Decisions and Appeals Regulations) the procedure for an oral hearing is such as the chairman shall determine.

5.	A tribunal thus has a power, but is not under a duty, to call a particular witness at a party’s request.  However, if it does summons such a witness, it has no sanction to enforce attendance.  These underlying factors, allied with the point that there is a written report from the EMP and the tribunal may assess its reliability in the light of the relevant background to such reports and the comments of the appellant about this particular report, will almost certainly have influenced the tribunal in its consideration that adjournment was inappropriate; any adjournment delays others in the queue.  It is for a tribunal to decide what evidence it requires and how to weigh that evidence and the only way error of law in making that analysis, or in determining whether to adjourn, can be demonstrated is if the tribunal’s approach is irrational or improper or inadequately explained.

6.	In the last respect only, I judge that it is so.  The appellant, rightly or wrongly, clearly had various complaints related, in particular, to an allegation that the report lacked clarity, and the tribunal ought to have stated what view it took on that challenge, and on whether or not the presence of the EMP was necessary for questioning, in its reasons.  The tribunal may be as robust as it likes in its analysis but must set the basis of such out.  

Failure to put a significant point to an appellant for comment

7.	In its reasons, the tribunal said:

“…The case had earlier been listed for hearing in October and was adjourned as Claimant wished to obtain…additional medical evidence…..He …said that he had been  unable to get the additional medical evidence as his General Practitioner was on long-term sick leave.  (Tribunal was puzzled as to why he did not get a note from another Doctor in the Practice who would have access to his records)…”

8.	The clear inference from  the above is that the tribunal was sceptical with respect to the appellant’s reason for not obtaining medical evidence in support; yet there is no indication on the record of proceedings that this point was put to the appellant, his response noted and then taken into account in the tribunal’s evaluation.  It should have been. A claimant is entitled to know the case he has to answer.

An insufficient record of proceedings 

9.	By regulation 55(1) of the Decisions and Appeals Regulations:

“…a record of proceedings at an oral hearing, which is sufficient to indicate the evidence taken, should be made by the chairman…in such medium as he may determine”.

10.	As noted by the Chief Commissioner, His Honour Judge Martin QC at paragraph 16 of C48/99-00(DLA):

	“16…it is obvious that the Chairman’s record of proceedings is not a complete record of all that went on at the hearing.  However there is no obligation to make a verbatim record of all that does occur at a tribunal hearing although the record should summarize all relevant evidence and also note any written evidence and submissions that are received by the tribunal during the hearing…”

11.	I cannot agree with the Department that this minimum obligation was adhered to by the tribunal in the present case.  The tribunal took in to account the following when finding that the appellant’s evidence was “…unclear, imprecise and at times evasive”:

	“…He often gave answers relevant to the time when he was not taking medication despite being told that Tribunal was concerned with his abilities when taking any necessary medication…”

Yet nowhere on the record of proceedings is there any indication that the appellant was so “told”, despite its importance to adverse inferences later drawn by the tribunal; this was accordingly relevant matter which did require to be included.

SUMMARY

12.	Given the above errors, the tribunal’s decision is set aside.  The appeal is therefore remitted to a new tribunal to begin again. It is emphasised that there will be a complete rehearing on the basis of the evidence and arguments available to the new tribunal, and in accordance with my guidance above, and the determination of the claimant’s case on the merits is entirely for them.  Although the claimant has been successful in his appeal limited to issues of law, the decision on the facts in his case remains open.

13.	For completeness, I note that I agree with the submission on behalf of the Department that with respect to Grounds 1 to 6 of the application, the appellant has not identified specifically how the tribunal has erred.  In those circumstances, and in light of the overall success of the appeal, it is not therefore constructive to take these matters further.  Relating to Ground 8, I further agree with the Department that there appears to be no breach of the statutory rules.  It is clear that the legally qualified member’s signature appears both on all the documents relating to the tribunal decision and also on the determination refusing leave to appeal to the Commissioner dated 27 February 2007.  In any event, regulation 58(6)(b) of the Decisions and Appeals Regulations permits applications for leave to appeal to a Commissioner to be determined by a legally qualified member other than the person who was the chairman of the tribunal which made the decision.

14.	Finally, the appellant sets out in detail various disagreements with descriptors chosen by the EMP and then followed by the tribunal.  However, matters of judgment on the factual application of a statutory test are exclusively for the tribunal unless its exercise of judgment is such that no reasonable tribunal could make on the basis of the facts found and having regard to the evidence.  But the observations the appellant has made (in a letter to the Commissioner received 17th July 2007) setting out the nature of his disagreement will now be put before the new tribunal.  The new tribunal is neither obliged to follow the conclusions of its predecessor, nor precluded from doing so, having regard to the evidence and submissions then available to the new tribunal.  I reiterate though that it will be a wholly fresh hearing of all relevant issues.

(signed): L T Parker

NI Deputy Commissioner

1 August 2007