DECISION OF SOCIAL SECURITY COMMISSIONER

Commissioner’s Case No:  CSDLA/336/00

1.	My decision is that the decision of the disability appeal tribunal given at Glasgow on 16 May 1999 is erroneous upon a point of law.  I set it aside.  I make the decision I see fit.  It is to the same effect as that given by the tribunal.  

2.	This case came before me for an oral hearing on 6 December 2000.  The claimant was represented by Mr Orr, a Welfare Rights Officer of the City of Glasgow Council.  The Secretary of State was represented by Miss Charteris, Advocate, instructed by Miss Ritchie, solicitor, of the office of the solicitor to the Advocate General.

3.	The claimant made a claim for disability living allowance on 17 April 1998.  An adverse decision was made in respect of that claim.  Thereafter another adjudication officer on 22 July 1998 reviewed that adverse decision but decided that he could not revise it so as to award benefit.  The claimant appealed to a disability appeal tribunal.  The appeal was heard on 14 May 1999.  The appeal was successful to the extent that the claimant was awarded the lower rate of the mobility component and the lowest rate of the care component from 17 June 1998 to 16 June 2000.  Mr Orr told me that on renewal the claimant has received a further limited award in respect of these elements of the care and mobility components.

4.	The claimant has appealed to the Commissioner.  The grounds of appeal are that the tribunal erred in law because:-

“In the reasons for decision they refer only to self-harm, yet in the note of evidence there is a clear record of harm to others.  (wife and daughter).”

5.	The evidence in respect of harm to others only emerged in the course of the oral hearing before the tribunal.  

6.	That evidence was noted in the record of proceedings and is limited.  At page 96 it is recorded that the claimant gave evidence as follows:-

“I have attacked my wife, about 8 months ago.  I hit her on the head with an ashtray.”

His wife gave evidence in the following terms:-

“He did have outbursts of violence but that has lessened.  He gets in a state about things.  Now it is just verbal abuse.  I asked for the SGH referral, because he had got so bad.”

Later the claimant said:-

“My daughter had to move out - I was violent towards her.”

7.	Mr Orr who appeared before the claimant before the tribunal accepted that he had not sought to elicit further evidence from the claimant or his wife before the tribunal on the issue of the claimant’s behaviour towards his wife and daughter.  The written grounds of appeal to the tribunal did not deal with this issue.  Further subsequent to the tribunal hearing Mr Orr has not taken statements from the claimant, his wife or daughter.  He did indicate that it would obviously be possible to find out when the daughter left her home.  Otherwise whether or not there is any further evidence and if there is its nature is unknown.  Mr Orr also accepted that in respect of the only evidence of violence against the claimant’s wife actually recorded related to 8 months before the tribunal hearing and was accordingly as a result of the operation of Schedule 6 paragraph 3 of the Social Security Act 1998 not evidence which the tribunal could take into account.  The statutory prohibition is:-

“The tribunal shall not take into account ant circumstances not obtaining at the time when the decision appealed against was made.”

It can thus be seen that all that was left before the tribunal was unspecified and undated incidents of violence towards the claimant’s daughter which resulted in her leaving home and generalised evidence of outbursts of violence from the claimant’s wife though to whom or to what they were directed to is undisclosed.  It will be noted that although the grounds of appeal in writing are related to supervision in respect of potential dangers to wife and daughter Mr Orr did seek orally to advance an argument in respect of danger to the claimant himself however.  After pursuing such an argument he indicated that he was dropping it and the appeal was solely directed to asserted risks to the claimant’s wife and daughter.

8.	Mr Orr presented an argument related to the fact that the tribunal did not make findings in respect of the evidence I have quoted above, though they had stated the following conclusion:-

“The criteria for an award of day-time supervision is that the appellant requires continual supervision throughout the day in order to avoid substantial danger to himself or others.”

Mr Orr also pointed out to me that in granting leave to appeal the tribunal chairman had said:-

“No response to violent outbursts in claim pack.  Isolated incident and dates not sufficient to meet day time supervision test in view of declared improvement but accepted that this is only implicit in decision and explanation given may not meet requirement for adequate facts and reasons.”

It was Mr Orr’s submission that the reference to:-

“declared improvement”

in the claimant’s grant of leave placed some doubt as to the basis of the tribunal’s decision.  I consider that there is some substance in that.  As a matter of practice it is I consider undesirable for a tribunal chairman in granting leave to give reasons for the grant, particularly when as here, they seek to give some explanation or gloss to the decision which is not on the face of it clear from the statement of reasons.  

9.	The Secretary of State supported the claimant’s appeal.  In paragraph 3 of the written submission it was said:-

“3.  I agree with the claimant’s grounds of appeal.  There was evidence put forward at the hearing that the claimant had injured his wife and been violent towards his daughter.  It was therefore incumbent on the tribunal to determine whether these incidents arose from the claimant’s disabling condition, whether there was a risk of substantial danger and whether supervision was necessary to reduce this risk.  The tribunal’s decision is however silent on this issue.  I note that the tribunal chairman when granting leave commented that the incident with the claimant’s wife was a isolated incident (121) he does not however comment upon the evidence regarding the claimant’s daughter.”

It will be noted that no reference to the fact that the tribunal were not entitled to entertain the evidence subsequent to the decision appealed against to the tribunal was referred to in that submission.  As advanced before me the Secretary of State’s argument tended more to concentrate on an asserted failure on the part of the tribunal to exercise their inquisitorial jurisdiction to explore the evidence of the claimant and his wife in respect of the outbursts of violence and violence towards his daughter more fully, notwithstanding that the claimant was represented by a responsible Welfare Rights Officer who did not do so.  I was referred by counsel first to R v Medical Appeal Tribunal (North Midland Region) ex parte Hubble 1958 2 All ER 374 at 379 and 80 where Diplock J as he then was said:-

“We think that this submission is based on a misapprehension of the purpose of the Act and the functions of medical boards and medical appeal tribunals.  A claim by an insured person to benefit under the Act is not truly analogous to a lis inter partes.  A claim to benefit is a claim to receive money out of the insurance funds fed by contributions from all employers, insured persons and the Exchequer.  Any such claim requires investigation to determine whether any, and if so what, amount of benefit is payable out of the fund.  In such an investigation, the Minister or the insurance officer is not a party adverse to the claimant.  If analogy be sought in the other branches of the law, it is to be found in an inquest rather than in an action.  Where the claim is for disablement benefit, a necessary step in the investigation is the determination of one or more questions of medical fact and opinion, and, accordingly, where such a claim is made, s. 39 (1) makes it mandatory on the insurance officer to refer “the case” of the claimant to a medical board for the determination, not of the claim, but of the disablement questions which require to be investigated.  As an expert investigating body, it is the right and duty of the medical board to use their own expertise in deciding the medical questions referred to them.  They may, if they think fit, make their own examination of the claimant and consider any other facts and material to enable them to reach their expert conclusion as doctors do in diagnosis and prognosis of the case of an ordinary patient.  Just as it is “the case” of the claimant which is to be referred to the medical board by s. 39 (1), so also it is “the case” of the claimant which is to be referred to the Medical Appeal Tribunal under s. 39 (2) and (3).”

I was also referred to R(IS) 5/93 where Mr Commissioner Hallett said:-

“14.  First, their decision was based on an approach to the case which was appropriate to an adversarial jurisdiction.  But social security appeal tribunals are the successors of local tribunals and, like them, exercise an inquisitorial jurisdiction.  They are exercising quasi-judicial functions and form part of the statutory machinery for investigating claims in order to ascertain whether the claimant satisfies the statutory requirements which entitle him to be paid benefit.  Its investigatory function has as its object the ascertainment of the facts and the determination of the truth and is not restricted as in ordinary litigation where there are proceedings between parties, to accepting or rejecting the respective contentions of the claimant on the one hand and of the adjudication (formerly insurance) officer on the other.  See Reg v Medical Appeal Tribunal (North Midland Region) ex parte Hubble [1958] 2 Q.B. 228 at page 240; R v Deputy Industrial Injuries Commissioner ex parte Moore [1965] 1 Q.B. 456 pages 486-7.  The inquisitorial nature of the jurisdiction of the statutory authorities has been emphasised by the Commissioner in many cases.  Examples of reported decisions to this effect are R(U) 5/77; R(I) 6/81; R(S) 4/82 (T); R(F) 1/83; R(SB) 2/83(T); R(S) 1/87.

15.  The appeal tribunal in the present case failed to inquire into and made findings on the written evidence before them, when finding the facts.”

10.	I was also referred to decisions of my own first CSIB/389/98 where in paragraph 6 I said:-

“6.	Mr Orr in his submission rather departed from the grounds of appeal and directed my attention to the activity of manual dexterity.  It was his position that manual dexterity was an activity which was clearly in issue before the tribunal.  He referred to the original application at page 6, the incapacity for work questionnaire at page 34 and page 44, the BAMS report at the clinical history on page 56 and the BAMS doctor’s acceptance that there was a problem with manual dexterity in respect that he records that there was pain in the claimant’s fingers on movement.  He also referred me to page 111 which contained the claimant’s grounds of appeal to the tribunal in which the claimant also made reference to this activity.  He readily accepted that when the case came before the tribunal the record of proceedings discloses that the activity of manual dexterity was not put in issue by the claimant’s representative.  Indeed it is apparent that it was descriptors 2(c), 8(d) and 9(d) which were concentrated upon.  It was however his position that the tribunal erred in law because they did not address the activity of manual dexterity in reaching their decision.  He referred me in that connection to paragraph 31 of CIS/3299/97 in which Mr Commissioner Rowland under reference to:-

“Regina v Deputy Industrial Injuries Commissioner ex parte Moore [1965] 1 Q.B. 456 (C.A.) (also reported as an appendix to R(I) 4/65).”

quoted Diplock L.J. who said:

“In dealing with appeals of these kinds, the insurance tribunal, namely the local appeal tribunal or the Commissioner or Deputy Commissioner as the case may be, is exercising quasi-judicial functions, for at this stage it has conflicting contentions before it, those of the claimant and those of the insurance officer who has disallowed the whole or part of the claim.  But there is an important distinction between the functions of an insurance tribunal and those of an ordinary court of law, or even those of an arbitrator.  As was pointed out by the Divisional Court in Regina v Medical Appeal Tribunal (North Midland Region), exparte Hubble [1958] 2 Q.B. 228, 240, a claim by an insured person to benefit is not strictly analogous to a lis inter partes.  Insurance tribunals form part of the statutory machinery for investigating claims, that is, for ascertaining whether the claimant has satisfied the statutory requirements which entitle him to be paid benefit out of the fund.  In such an investigation neither the insurance officer nor the Minister (both of whom are entitled to be represented before the insurance tribunal) is a party adverse to the claimant.  If an analogy be sought in ordinary litigious procedure, their functions most closely resemble those of amici curiae.  The insurance tribunal is not restricted to accepting or rejecting the respective contentions of the claimant upon the one hand and of the insurance officer or Minister on the other.  It is at liberty to form its own view even though this may not coincide with the contentions of either.”

Mr Commissioner Rowland then went on to say:-

“In Hubble, the Divisional Court had used the analogy of an inquest rather than an action.  It seems to me that there is clearly a duty upon a tribunal to ensure that all relevant questions have been asked of a claimant.  It could not be otherwise, given the complexity of social security law and the fact that few claimants have advisors and that many are poorly education.”

It was Mr Orr’s submission under reference to that authority that the tribunal erred in law by failing to exercise its inquisitorial jurisdiction in order to explore the activity of manual dexterity and make specific findings thereon.

7.	I do not accept that submission, I fully accept that the role of the presenting officer on behalf of the adjudication officer resembles that of an amici curiae and that the tribunal have to bear in mind that theirs in an inquisitorial jurisdiction and not an adversarial one in the sense set out by Diplock L.J.  However if a claimant is represented, as was the position here, by a welfare rights officer employed by a responsible local authority the tribunal is entitled to rely upon such a representative taking up the issue and points he considers to be proper, adequate and necessary for the determination of his client’s appeal.  They are entitled to take the view that the claimant’s representative knows what case he is proposing to make on behalf of his client.  To hold otherwise would put an impossible burden upon tribunals who are expected to conduct a substantial number of appeals at each sitting.”

11.	Secondly I was referred to CSIB/588/98:-

“13.	I adhere to the views which I expressed in that case.  Where the claimant is represented by a responsible representative I am satisfied that it is not incumbent upon the tribunal to take the presentation of the claimant’s case out of the hands of the representative in order to conduct it for themselves.  The representative was specifically asked if he wished to make further submissions and chose not to do so.  In these circumstances I do not consider that it can successfully be asserted that the tribunal erred in law by not investigating the matter with the claimant herself over the head of the representative whom she appointed to represent her at the hearing.” [CSIB/389/98]

12.	Consideration was also given to a decision of the tribunal of commissioners in R(SB) 2/83 where the tribunal said:-

“Everything will depend upon the circumstances in any given instance.  However, the primary duty for making out his case falls on the claimant, and he must not expect to rely on the tribunal’s own expertise.  We would be slow to convict a tribunal of failure to identify an uncanvassed factual point in favour of the claimant in the absence of the most obvious and clear cut circumstances.”

13.	Miss Charteris’ position in this case was that in this case evidence in respect of risk to other persons had been placed orally before the tribunal.  That evidence it was submitted was insufficient to enable a decision to be made as to whether or not the claimant satisfied the day time attention conditions.  It was her position that further information should have been sought from the witnesses.  This was notwithstanding that the claimant was represented and the representative chose not to do so.  It was her position that R(SB) 2/83 supported her proposition in respect that there was a canvassed factual point and that the submission was supported by what was said in paragraph 14 of R(IS) 5/93.  She did however accept that there were limits to the inquisitorial jurisdiction and said that my decisions in CSIB/389/98 and CSIB/588/98 were distinguishable in respect that in the former case the activity which it was asserted should have been dealt with by the tribunal was not put in issue by the claimant’s representative and in the latter case the claimant’s representative had restricted himself to two narrow points and did not seek despite the invitation of the tribunal to make further submissions.  

14.	Mr Orr in reply to Miss Charteris submitted that my decision in CSIB/389/98 contradicted the decision of Mr Commissioner Hallett and that accordingly I ought to consider my own view again in the light of that decision.  It was also his position that in failing to seek further evidence himself from the claimant and his wife he missed the point before the tribunal.  However the inquisitorial jurisdiction was there and he was at one with Miss Charteris in considering that in the circumstances of this case the tribunal had a duty to enquiry further which it failed to do.  

15.	I do not accept that the tribunal erred in law by virtue of an asserted failure to exercise their inquisitorial jurisdiction.  Indeed in my view on the circumstances of the case that they had no duty to do so.  As a matter of general principle I adhere to the views I expressed in CSIB/389/98 and CSIB/588/98 in relation to the extent of that jurisdiction.  In particular I adhere to the views I expressed in paragraph 7 of CSIB/389/98 quoted above.  It has to be remembered that the nature of a tribunal hearing is summary.  The normal workload of a tribunal is 8 appeals in a day 4 in each session.  Mr Orr told me that in respect of the claimant’s appeal there were two other appeals scheduled in the morning session.  In respect of disability living allowance cases it also must be remembered that tribunals are frequently required to make decisions in cases on a number of elements of both the care and mobility components for which there are different tests.  In the light of these modern and prevailing circumstances I do not consider that a tribunal can be expected in respect of matters which emerge in evidence for the first time before them when the claimant is represented by a responsible representative, to enquire further when the representative chooses not and makes no issue in respect of the evidence in submissions.  Mr Orr as well as Miss Charteris accepted that there must be limits to the inquisitorial jurisdiction.  In my view in the circumstances of the case the limits were reached.  I reach that view in the context that I do not dissent from the expression the exercise that is being engaged in by tribunals as expressed by Mr Commissioner Hallet in paragraph 14 of R(IS) 5/93.  I do have one caveat and that is that paragraph 14 refers to R v Medical Appeal Tribunal ex parte Hubble.  That case related to medical boards and medical appeal tribunals which are creatures which are somewhat different from disability appeal tribunal in that they had their own expertise and could conduct their own examinations.  Thus the extent to which they conduct an inquest is in these circumstances somewhat greater than disability appeal tribunals.  Paragraph 15 of Mr Commissioner Hallet’s decision was simply his application of the general principles to the facts of the case he was deciding. I would also underline that in any form of inquest where a person is represented by a responsible representative that representative can be expected to guide those who are holding the inquest as to the areas in issue following the evidence.  To hold otherwise would be corrosive of the whole system of appeals to the tribunal and the Commissioner.

16.	I have however come to the conclusion that the evidence which related to risks to others was before the tribunal and considered by them.  They did not reject it. An explanation or gloss was placed upon it by the tribunal chairman when giving leave. Thus I am satisfied that they did not deal with it adequately by making appropriate findings and expressing their views thereon.  It thus seems to me that the tribunal decision did err in law.  They also erred in law in relation to the one incident of actual violence which was one which by virtue of schedule 6 they were statutory barred from taking into consideration and in respect of which they should have indicated they could not entertain.  

17.	However having taken that view and in consequence thereof having had to set the decision of the tribunal aside I am not prepared in the circumstances to remit the case to a freshly constituted tribunal for a rehearing.  I consider I can make the decision I see fit.  There is no reason for me not to accept the evidence which was placed orally before the tribunal.  That evidence is as recorded above.  However I cannot take into account circumstances which were not before the adjudication officer who made the decision appealed against to the tribunal.  Mr Orr as I have indicated said that no statement had ever been taken from the claimant or his wife or any other witness which would amplify and extend the evidence given before the tribunal.  There may or may not be such evidence. However, Mr Orr on his responsibility as representative has made his appeal to the Commissioner but has simply not found this out.  On the evidence which was before the tribunal and before me, which can be considered, there is clearly insufficient evidence to satisfy satisfaction of the statutory requirement under section 72(1)(b)(ii) in the context of the various criteria laid down in R(A) 1/83.  Accordingly there is no basis for the award of the middle rate of the care component during the existence of the award made by the tribunal.  I make a decision to that effect.  I do not consider, having asked Mr Orr if he had taken statements on the material issue and received a negative answer, that I require to make further investigation or remit to another tribunal.  If the issue was to be pursued it was for Mr Orr to have discovered if there was further evidence, for in my view the appeal to the Commissioner can only properly be advanced if Mr Orr had discovered that there was material evidence which could have in the event affected the award.  The award made by the tribunal in respect of the lower rate of the mobility component was not disputed by either party and accordingly stands.  It was equally undisputed that the claimant satisfied the condition in respect of lower rate care as made. 

18.	The appeal fails. 

					(signed)
					D J MAY QC
					Commissioner
					Date:  27 December 2000