THE SOCIAL SECURITY COMMISSIONERS

Commissioner’s Case No: CDLA/2259/2000

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992

SOCIAL SECURITY ADMINISTRATION ACT 1992

SOCIAL SECURITY ACT 1998

HUMAN RIGHTS ACT 1998

APPLICATION FOR LEAVE TO APPEAL AGAINST A DECISION OF AN APPEAL TRIBUNAL ON A QUESTION OF LAW

DETERMINATION OF THE SOCIAL SECURITY COMMISSIONER

MR COMMISSIONER JACOBS

Determination:
1.	Leave to appeal against the decision of the Liverpool Appeal Tribunal dated 10th January 2000 is refused.

The application
2.	This is an application for leave to appeal to a Commissioner against the decision of the Appeal Tribunal brought by the claimant with the assistance of a representative from his local CAB, leave having been refused by the tribunal’s chairman. 
The request for the oral hearing
3.	The claimant has requested an oral hearing of the application. I refuse the request, because I am satisfied that the application can properly be determined without a hearing. The claimant gave no reason for the request and I can see no reason for an oral hearing. My jurisdiction on the application is limited to issues of law and an oral hearing would not help me to deal with those issues in this case. 
The grounds of the application
4.	The grounds of the application for leave make three arguments.
Exaggeration of pain
5.	The first ground is that the tribunal did not adequately explain why it considered that the claimant was exaggerating the extent of his pain. I reject that argument. 
6.	The tribunal referred to the claimant’s description of his pain as ‘unbearable’. However, it noted factors that did not support this evidence. First, the Examining Medical Practitioner had seen the claimant walk without his crutches and had commented with surprise on this. Second, the estimates of the claimant’s walking distance made by the Examining Medical Practitioner and by the claimant’s Consultant were not consistent with the asserted level of pain. Those reasons are adequate in law to explain why the tribunal found that the claimant was exaggerating the level of his pain. 
Use of the oven or cooker
7.	The second ground of appeal relates to the cooked main meal test. The statement of the tribunal’s reasons recorded that the claimant could prepare a meal without the use of a cooker. The chairman of the tribunal, who dealt with the application, commented that ‘cooker’ was a mistake and that ‘oven’ was intended. The representative argues that the legal test envisages a traditional meal cooked on a traditional cooker and cites CDLA/85/1994. I reject that argument for two reasons.
8.	It has been held that cooking a main meal does not necessarily involve the use of an oven: see the decision of the Commissioner in CDLA/2267/1995, paragraph 9.
9.	Second, the claimant’s only disablement was caused by his right leg. It is possible to cook a main meal safely despite this disability by using a chair or a perching stool. It may cause a little inconvenience, but it is possible.
Convention right issue
10.	Finally, the claimant’s representative refers to the fact that the District Chairman who considered the application for leave to appeal was the chairman of the tribunal against whose decision leave was sought. The representative argues that this may be a violation of a Convention right under the Human Rights Act 1998. 
11.	This practice is authorised by section 14(10)(a) of the Social Security Act 1998. That provision may or may not be in violation of a Convention right under the Human Rights Act 1998. Whatever the position under the Human Rights Act, the point is not relevant on appeal to a Commissioner for two reasons. First, Commissioners have no power to make a declaration of incompatibility under section 4 of the Act. Second, Commissioners only have jurisdiction over errors of law. This practice does not identify an error of law in the tribunal’s decision, as it happened after the hearing. I emphasise these points in the hope that they will prevent unnecessary arguments being made in applications and on appeals when the Human Rights Act 1998 comes into force on 2nd October 2000.
Summary
12.	There is no arguable case that the tribunal’s decision was erroneous in law. The tribunal was properly constituted. The tribunal analysed the evidence rationally and in accordance with common sense. It made all necessary findings of fact material to its decision. There was evidence to support each of those findings.  On those findings of fact, the tribunal was entitled to make the decision that it did. There is nothing to suggest that the tribunal misunderstood or misapplied the law. The full statement of the tribunal's decision contains a detailed explanation of why the tribunal made the decision that it did. There was no breach of the principles of natural justice. Leave to appeal is refused.

Signed on original     							    Edward Jacobs
Commissioner
19th July 2000