CDLA/2014/2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.  My decision is that the decision of the tribunal is erroneous in point of law.   I set aside the tribunal's decision and, since it is not expedient for me to make the findings of fact which are necessary to decide what decision the tribunal should have given, I refer the case for rehearing before a differently constituted tribunal.

2.  Following a road accident in 1997, the claimant has come to suffer from musculo-skeletal pain, vertigo, headaches and a number of other medical conditions.  Her general practitioner states that the claimant has an unusual pathology which is difficult to diagnose exactly, but he considers that her disabilities are genuine.

3.  The claimant made a new claim for disability living allowance on 3 July 2003 and was examined by an examining medical practitioner on 15 August 2003.  The examining medical practitioner assessed the function of the claimant’s limbs as 1-2, although he also noted loss of  use of some movements of between 10 and 50%.  He considered that the claimant would need help with dressing and undressing and taking a bath or shower.  He assessed the claimant as being able to walk 60 to 70 metres at a slow speed, taking twice the length of time of a normal person to cover that distance, and having to stop once or twice for a few seconds to half a minute.

4.  On 27 August 2003 a decision was made refusing both the mobility and care components of disability living allowance and, although the decision was reconsidered on 29 October 2003, it was not revised.  The claimant appealed against the decision on 11 September 2003, but the tribunal dismissed the appeal on 4 February 2004.  It is against that decision that the claimant, with leave granted by a district chairman, now appeals.

5.   The claimant was represented at the hearing by her solicitor, who prepared a detailed written submission in support of the appeal.  The submission annexed a report dated 25 January 2004 prepared by a disability consultant, who had carried out a home visit to the claimant on 28 June 2003.  The consultant considered that the claimant was genuinely in pain and concluded that she required constant day and night supervision and care within her home.  As a result of his concerns following his visit, the consultant immediately contacted social services to arrange for the claimant to be provided with a care programme.

6.  The main ground of this appeal is that the tribunal wrongly excluded from their consideration the evidence of the disability consultant.  Although the consultant attended the hearing of the appeal with the claimant’s solicitor, he made a complaint after the hearing that he was not permitted to speak on her behalf.  In a letter dated 2 April 2004 he stated:

  “The chair of the tribunal stated to (the claimant’s solicitor) before the tribunal and to myself in the tribunal that my report, while fine, was merely opinion and therefore has no basis within the tribunal and would therefore be disregarded.  He also refused to allow me to speak during the tribunal, stating only one representative (was) permitted to speak, and offered me no chance to defend the validity of my report.  As someone familiar with the specific circumstances of (the claimant’s) case I would have been able to offer additional information and clarifications during the tribunal, allowing (the claimant) to have a fairer opportunity to respond to questions.”

The chairman has not been given an opportunity of commenting on the complaint, but in the Record of  Proceedings there is a note of a discussion prior to the hearing between the chairman and the claimant’s solicitor, presumably relating to the disability consultant:

“Client wants him to attend.  I explain to solicitor that his advice not admissible”

There is then a passage which is difficult to read, but which indicates that the tribunal would decide whether to hear from the disability consultant when he arrived.  I can find no further reference to the disability consultant in the Record of  Proceedings, but the statement of reasons records that “he spoke to the tribunal briefly”.   However, the statement of reasons makes no reference to the consultant’s written report and that omission, together with the passage in the Record of  Proceedings set out above, seems to me to put it beyond doubt that the consultant is correct in asserting that the tribunal regarded his evidence as inadmissible.

7.  Although the disability consultant’s complaint was framed as being concerned with  the tribunal’s refusal to allow the claimant to have more than one representative, it is apparent from the consultant’s letter that he attended the hearing in order to give evidence supporting his written report.  Regulation 49(11) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 provides:

“Any person entitled to be heard at an oral hearing may address the tribunal, may give evidence, may call witnesses and may put questions directly to any other person called as a witness”

Under that provision, the claimant therefore had an unqualified right to call the disability consultant as a witness, although in R(SB) 5/82 it was held that a tribunal is not bound to hear evidence which is clearly irrelevant or immaterial, whether it be from a witness actually giving evidence or from a proposed witness.

8.  The evidence of the disability consultant was clearly relevant, but was excluded by the tribunal apparently on the basis that it represented only the consultant’s opinion.  However, I agree with the claimant’s representative that the tribunal erred in taking that view.  In his report the consultant described the claimant’s movements when moving around her home.  He stated that, apart from her kitchen, the downstairs of the claimant’s house looked unoccupied, that her bedroom, kitchen and bathroom were extremely untidy and uncared for, and described her environment as ‘chaotic’.  The tribunal found that the claimant could care for herself fully and that, although she lived a very restricted life, she had chosen to do so.  The observations of the disability consultant during his home visit were relevant to the question of whether the claimant’s limitations were voluntary or involuntary and, although the tribunal were not of course bound to accept the consultant’s evidence, they were obliged to consider that evidence when deciding whether the loss of function alleged by the claimant was genuine.

9.  However, even if the disability consultant’s report had consisted solely of statements of opinion, that did not make it inadmissible before the tribunal.    At common law, subject to certain exceptions, opinion evidence is inadmissible except where it is relevant to an issue or is a way of conveying facts personally perceived by a witness.  However, the opinions of skilled witnesses are admissible wherever the subject is one on which competency to express an opinion can only be acquired by special study or experience.  Expert evidence in civil proceedings is now governed by the regime created by the Civil Evidence Act 1972 and Part 35 of the Civil Procedure Rules.

10.  The Social Security and Child Support (Decisions and Appeals) Regulations 1999 do not expressly deal with the admissibility of evidence, but it is has long been held by Commissioners that social security tribunals are not bound by the rules of admissibility of evidence which apply in the ordinary courts-see, for example, R(G) 1/51, R(U)12/56 and R(SB)5/82.  In R v Deputy Industrial Injuries Commissioner ex parte Moore [1965] 1 QB 456 it was held that the absence of regulations which were empowered by section 51(1) of the National Insurance (Industrial Injuries) Act 1946 for prescribing the evidence to be required in connection with the determination of a claim was an indication that Parliament did not intend that the strict rules of evidence should apply.  In R(U) 5/77  Chief Commissioner Temple held, citing Moore, that the statutory authorities dealing with national insurance matters exercise an inquisitorial jurisdiction, so that the strict rules of evidence applicable to adversarial cases do not apply in proceedings before those authorities.  Paragraph 4 of Schedule 5 of the Social Security Act 1998 also contains a power, which has not been exercised in relation to tribunals, for provision to be made as to the manner in which any evidence is to be produced, so that the reasoning in Moore also applies to tribunals constituted under the 1998 Act.

11.  Although appeal tribunals are not therefore bound by the strict rules of evidence, it does not follow that those rules have no relevance in tribunal proceedings.  In particular, there is nothing which empowers tribunals to override any privilege of a witness not to give evidence, for example, privilege in relation to solicitor-client communications and privilege against self-incrimination.  Indeed, in cases where a witness is not legally represented, tribunals should be astute to ensure that the rights of the witness are fully protected. 

12.   Common law rules of evidence will frequently be relevant in the evaluation of  evidence, since the considerations which have led to evidence being inadmissible at common law will usually affect its weight in proceedings where the evidence can be admitted.  Thus, in R(SB) 5/82 it was held that although a tribunal could admit hearsay  evidence, it should carefully weigh up its probative value before doing so, bearing in mind that the original maker of the statement is not present at the hearing to be questioned about what he actually saw.  In relation to opinion evidence, the fact that a witness is not a qualified expert will not make the evidence inadmissible before a tribunal, but may properly be taken into account by the tribunal in deciding what weight the evidence should be given.

13.  The tribunal in this case were fully entitled to treat the evidence of the disability consultant with caution and to reject his opinions in whole or in part if there were facts or circumstances which placed it in doubt-see R v Matheson [1958] 2 All ER 87.  However, for the reasons I have given, they were not entitled to refuse to consider the evidence and, accordingly, their decision was erroneous in law.

14.  I also agree with the other reasons given by the Secretary of State’s representative for supporting the appeal.  As he points out, the tribunal did not deal adequately with the general practitioner’s report.  They did not refer to the substantial loss of  use of the limbs recorded by the examining medical practitioner which appears inconsistent with nil or mild impairment, and they gave the kind of formulaic endorsement of the examining medical practitioner’s which I recently deprecated in CIB/3074/2003.

15.  For those reasons I allow the appeal.  It is clearly not possible for me to decide entitlement to benefit in this difficult case on the basis of the documents.  I therefore refer the case for rehearing to a differently constituted tribunal.  The new tribunal will be concerned with the period down to 7 May 2004, which is the date from which the claimant has made a new claim.

	(signed on the original)	E A L Bano
		Commissioner

		11 November 2004