THE SOCIAL SECURITY COMMISSIONERS

Commissioner’s Case No: CDLA/6619/1999

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992

SOCIAL SECURITY ADMINISTRATION ACT 1992

SOCIAL SECURITY ACT 1998

APPEAL FROM A DECISION OF AN APPEAL TRIBUNAL ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

MR COMMISSIONER JACOBS

Decision:
1.	My decision is that the decision of the Swansea disability appeal tribunal held on 9th September 1998 is not erroneous in point of law.

The appeal to the Commissioner
2.	This is an appeal to a Commissioner against the decision of the disability appeal tribunal brought by the claimant with the leave of Miss Commissioner Fellner. She commented that she saw little in the grounds of appeal, but asked the Secretary of State to make a full submission. The reference to the Secretary of State is explained by the fact that the Social Security Act 1998 had come into force in respect of disability living allowance. As a result, the Secretary of State, and not the adjudication officer, was a party to the proceedings on this appeal. The Secretary of State did not support the appeal.
The adjudication officer’s decision
3.	The claimant was in receipt of an award of a disability living allowance consisting of the mobility component at the lower rate and the care component at the lowest rate when, on 18th March 1997, an application for a review of the decision making that award was received.
4.	As the application for a review was made more than three months after the decision making the award of the mobility component, it was considered under section 30(2) of the Social Security Administration Act 1992 and the decision under review could only be altered if it fell within one of a limited number of grounds. The grounds most likely to arise are (i) that the officer who made the decision was mistaken or ignorant of some material fact or (ii) that there has been a change of circumstances (for example, some improvement or deterioration in the claimant's disablement) since the decision was made.
5.	The adjudication officer refused to review the decision making the award, as no grounds for review had been shown.
6.	The claimant applied for a review of the decision. A different adjudication officer reviewed the decision under section 30(1) of the Social Security Administration Act 1992, but confirmed the refusal to revise the decision making the award.
The appeal to the appeal tribunal 
7.	The claimant appealed against the decision given by the adjudication officer on the section 30(1) review. 
8.	The hearing of the appeal was adjourned on 19th May 1998. The decision notice records that the tribunal considered that
	‘Further information is necessary’.
It directed that reports be obtained from an examining medical practitioner and from ‘the appropriate’ Consultant Psychiatrist. The request form completed by the chairman (page 126) specified that a report based on medical records be obtained from the hospital attended by the claimant. It did not specific the name of the person who was to write the report. This was in accordance with advice given to chairman that reports should not be requested from named doctors. This caused problems and delays if the named doctor would not, or could not, provide the report. Chairmen were advised to request a report from a particular hospital either without specifying a particular author or stating that a report from a specified doctor was preferred.
9.	A report was obtained from the examining medical practitioner. It did not identify any care needs at all. The doctor also gave the opinion that the claimant could peel and chop vegetables, use a cooker and cope with hot pans. On mobility, the doctor gave the opinion that the claimant had no limitation on his walking, but recorded that he only went out if accompanied.
10.	A report was not provided by the hospital and the case was listed for hearing without it. There is a dispute as to the circumstances in which this happened. The clerk’s note records that the claimant’s brother telephoned on 13th August 1998 to say that it was pointless to wait as the policy of the claimant’s Psychiatrist was not to provide reports for disability living allowance. The note records that the claimant’s brother agreed to the case being listed for hearing without the report and that the case was listed for 9th September 1998. However, in the grounds of appeal the claimant’s brother asserted that he had only said the claimant’s Psychiatrist would not give a report. He had not said that other Psychiatrists from the same hospital would not give reports and that the claimant’s case would have been stronger if another Consultant had been asked to write the report, if only on the basis of the claimant’s case notes at the hospital. At the oral hearing before me, this was amplified. I was told that the claimant’s brother had telephoned the tribunal twice. The first call reported that the claimant’s own Psychiatrist would not write a report. The brother was told that this would be referred to the tribunal’s ‘legal department’. He rang again about 6 weeks later and was told that he needed to speak to the listing section. That section informed him that the case had been listed for 9th September.
11.	The hearing of the appeal was resumed on 9th September 1998. The claimant did not attend, but was represented by his brother, who also gave evidence on his behalf. The record of proceedings does not contain any mention by the claimant’s brother about the absence of a Consultant’s report.
12.	The tribunal confirmed the adjudication officer’s decision.
The appeal to the Commissioner
13.	An oral hearing was directed by a Legal Officer to the Commissioners. It was held before me in Cardiff on 23rd October 2000. The claimant did not attend, but his brother (who has Power of Attorney over the claimant’s affairs) attended and he was represented by Mr Lewis of counsel. The Secretary of State was represented by Mr James. 
14.	I am grateful to Mr Lewis for his detailed skeleton arguments setting out the grounds of appeal. He presented four grounds of appeal, but accept that they all came back to this one issue: should the tribunal have proceeded without a psychiatric report?
15.	Mr Lewis referred to section 20(2) of the Social Security Act 1998 and regulation 41 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. Of course, those provisions were not in force in September 1998. However, section 20(2) is essentially a re-enactment of section 55(1) of the Social Security Administration Act 1992, which was then in force. Both provisions give power to a chairman or a legally qualified panel member to refer a claimant for examination and report. A failure to exercise the power properly may leave the refusal open to judicial review, but it does not amount to an error of law in the tribunal’s decision. That, however, is a technical point, as the tribunal could have adjourned for the chairman to consider exercising this power.
16.	I will assume for the sake of argument that it was only the claimant’s own Psychiatrist who would not provide a report and that a report might be obtainable from another Psychiatrist at the same hospital. (If this is incorrect and the impression created by the clerk’s note is correct, the tribunal was obviously entitled to proceed on the evidence available.)
17.	The decision to proceed without the report involved an exercise of judgment. In determining whether there is an error of law in an exercise of judgment, the courts and the Commissioners recognise that there is legitimate scope for differences of opinion on the same facts: see the judgment of Lord Justice Asquith in Bellenden v. Satterthwaite [1948] 1 All England Law Reports 343 at page 345. The tribunal's decision will not be wrong merely because I would have formed a different judgment: see the speech of the Lord Chancellor, Viscount Simon, in Charles Osenton and Co. v. Johnson [1941] 2 All England Law Reports 245 at page 250. I must not embark upon the exercise of deciding what judgment I would have formed: see the judgment of the Chief Justice, Lord Widgery, in Global Plant Ltd. v. Secretary of State for Health and Social Security [1971] 3 All England Law Reports 385 at page 393. 
18.	In the case of a decision by a disability appeal tribunal, I must also bear in mind that the tribunal’s membership contains a mixture of skills particularly relevant to disability issues. As well as the legal chairman, the panel contained a medical practitioner and someone experienced in dealing with the needs of disabled persons: see section 42 of the Social Security Administration Act 1992. The tribunal that heard the claimant’s appeal was in a much better position than I am to judge whether a report written by a doctor who was relying solely on the claimant’s case notes without any personal knowledge of the claimant would help the tribunal to reach a decision on the claimant’s entitlement to a disability living allowance. 
19.	I have also to bear in mind that the tribunal was concerned with the claimant’s disablement rather than with his medical condition. The report would certainly have contained detailed information on the latter, but would it have been relevant to the former? 
20.	The tribunal at the first hearing considered that further information was necessary. It referred in particular to two reports. However, that opinion did not bind the tribunal at the next hearing. By that time, circumstances had changed in that the tribunal had a report from an examining medical practitioner. The doctors who provide those reports are experienced in assessing disablement whether it arises from a physical or a mental cause. Although the report showed that the claimant had not been very forthcoming, it also showed that his mother and brother had been in attendance and they could have added to what the claimant said. The brother was also in attendance at the hearing to give evidence. The tribunal on 9th September 1998 was entitled to make a fresh assessment of the evidence that it needed in the circumstances obtaining at the time of the hearing. 
22.	Given the evidence available at the hearing on 9th September 1998, it was not an error of law for the members of the disability appeal tribunal to conclude, on the basis of the combined experience of its members, that it could, without unfairness to the claimant, reach a soundly based decision on the evidence available. I agree with the way that Mr James put it in argument: the tribunal’s conclusion is defensible, as would the opposite conclusion have been.
23.	So, the tribunal was entitled in law to proceed without a psychiatric report. On the evidence before it, the decision reached by the tribunal was one that it was entitled to reach. There was no breach of natural justice. 
The Human Rights Act 1998 and its commencement
24.	Mr Lewis argued that the case was covered by the Human Rights Act 1998, which applied to proceedings that were completed before the Act came into force. As this issue will be relevant to other appeals, I record his argument and my conclusion. Mr James had no warning before arriving for the hearing that this issue would be raised. He confined himself to commenting that as regards the medical report the Convention right to a fair hearing added nothing to the requirements of natural justice. I do not need to deal with that argument, as Mr Lewis did not persuade me that the Act was in force.  
25.	Mr Lewis argued that the case was covered by section 7(1)(a) of the Act in that the appeal before the Commissioner was a proceeding brought against an authority that had acted in a way that was made unlawful by section 6(1). In other words, the authority had acted in a way that was incompatible with one of the claimant’s Convention rights. 
26.	I do not accept that this case is covered by section 7(1)(a). On Mr Lewis’s argument, it was the disability appeal tribunal that acted in a way that was incompatible with the claimant’s Convention right to a fair hearing. The appeal to the Commissioner is against the decision of that tribunal. However, it is not a proceeding brought against the appeal tribunal within the meaning of section 7(1)(a). When an appeal is made against the decision of a judicial body, the decision is the subject of the appeal, but the parties on the appeal are the same as the parties to the proceedings below. The appeal is made by one party against another in order to challenge the decision made by the judicial body. Section 7(1)(a) only applies where the public authority is a party to the proceedings. The most that can be said in this case is that the tribunal is in a sense the subject of the proceedings, although more accurately it is the tribunal’s decision that is the subject rather than the tribunal itself. The tribunal is not a party to the proceedings. If the appeal to the Commissioner amounts to proceedings against a public authority, that authority is the Secretary of State, not the tribunal.
27.	I asked Mr Lewis if the Human Rights Act 1998 applied to the alleged violation of a Convention right, as it had occurred before 2nd October 2000, when the Act came into force. He argued that it did, relying on section 7(5), which provides that proceedings under section 7(1)(a) must be brought within one year of the date when the act complained of took place or such longer appear as is equitable in all the circumstances. I reject that argument. Section 7(5) is a limitation provision, not a commencement provision. It governs the time within which an action may be brought. It does not deal with the question whether that action may have occurred before the commencement of the section.
28.	I referred Mr Lewis to section 22(4), which provides that section 7(1)(a) does not apply to an act that has taken place before the coming into force of section 7. In response, Mr Lewis relied on section 7(5), arguing that it was equitable to extend the one year period. He cited in support a passage from Hansard in which the Under-Secretary of State for the Home Department said that the period could be extended in order to prevent injustice. (The passage is quoted in Blackstone’s Guide to the Human Rights Act 1998 by John Wadham and Helen Mountfield at pages 220 to 221.)
29.	There are two flaws in this argument. The first I have already pointed out - section 7(5) is concerned with limitation, not commencement. The second is the reference to Hansard. Some of the books on the Human Rights Act 1998 have included extensive quotations from the debates on the Bill. However, there is nothing special about this Act so far as reference to Hansard is concerned. Reference is only authorised under the conditions set out in Pepper v. Hart [1993] 1 All England Law Reports 42. Those conditions are not satisfied in respect of Mr Lewis’s argument. Section 7(5) clearly deals only with limitation and no reference to Hansard can turn it into a commencement provision.
Conclusion
30.	Although another tribunal might have formed a different opinion on the need for further, especially psychiatric, medical evidence, this tribunal did not and there is no error of law in the exercise of its discretion on the issue. As Mr Lewis accepted, the whole of the claimant’s case before me hinged on the exercise of the tribunal’s discretion. It follows that the decision of the disability appeal tribunal is not erroneous in law. 
31.	If the claimant’s advisers believe that the psychiatric evidence would have led to a different outcome, the proper course is to apply to the Secretary of State for a supersession of the decision. If the claimant does not produce his own evidence in support of the application, it will be for the Secretary of State to determine whether to obtain further evidence of the claimant’s psychiatric conditions and the resulting disablement. These are not matters for me.

Signed on original     							    Edward Jacobs
Commissioner
30th October 2000