[2005] UKSSCSC CSDLA_532_2005 (19 August 2005) 

 
THE SOCIAL SECURITY COMMISSIONERS

 
Commissioner’s Case No:  CSDLA/532/05

 
SOCIAL SECURITY ACT 1998
 
APPEAL FROM THE APPEAL TRIBUNAL UPON A QUESTION OF LAW
 
COMMISSIONER:  L T PARKER

 
Appellant:  						Respondent:  Secretary of State

Tribunal:  Edinburgh  Tribunal Case No:  U/05/091/2005/00735

DECISION OF SOCIAL SECURITY COMMISSIONER
 
Decision
 
1.         The majority decision of a tribunal sitting in Edinburgh (the tribunal) on 17 March 2005 is wrong in law.  I therefore set the decision aside and remit the appeal to a new tribunal for a fresh hearing.  The decision under consideration becomes, once more, a refusal to supersede in the appellant’s favour, an existing award.
 
Background
 
2.         The appellant was in receipt of the lowest rate of the care component of disability living allowance (DLA) on the basis of the cooked main meal test.  This award followed a report by an examining medical practitioner (EMP) dated 13 March 2000, which EMP accepted asthma, bilateral carpal tunnel syndrome and mild hypertension which led, in the EMP’s opinion, to slight impairment of limb function in all except both lower legs; the EMP therefore considered that she would only be able to “peel/chop vegetables” and “cope with hot pans” with someone’s help.  
 
3.         By the time of an application for supersession, dated 5 August 2004, the appellant was additionally complaining of chronic pain and fatigue.  In a report from her general practitioner (GP) dated 22 October 2004, the GP said that a “working diagnosis of fibromyalgia” had been given with respect to this limb pain and her overall fatigue, which severely limited the appellant, and that her carpal tunnel syndrome still caused her moderate to severe pain in the hands and decreased grip strength.  The GP was not, however, asked any specific question with respect to cooking ability.
 
4.         A decision maker (DM) on behalf of the Secretary of State on 30 November 2004 refused the application to supersede but made no change to the continuing award.  The appellant appealed to a tribunal on 9 December 2004 and by no later than 28 January 2005 was represented by a local welfare rights officer (the representative), because the representative lodged a letter of that date from a physiotherapist (the physiotherapist) which said with respect to the appellant:
 
            “On examination she was found to have very stiff movements of her legs, arms and all spinal components in all directions”.
 
This letter is on the left hand side of the tribunal file only; however page 95 is missing from the appeal papers so it is unclear whether that letter was ever included in the information put to the tribunal.
 
5.         The appellant attended the tribunal hearing accompanied by her daughter and with the representative.  The representative handed in a lengthy written submission and a letter from the general practitioner (from the same practice but not the same GP who was author of the earlier report) dated 11 March 2005.  The GP’s letter included the following:
 
            “She is suffering from “myalgia” of unknown cause when she was seen by rheumatology in January 2002.  Since then she has become progressively more stiff and sore with pain in muscles all over her body.  She has also developed extreme fatigue.  She is now finding it hard to walk even short distances on the flat and I believe she is not even able to walk as far as 50 yards.  She is finding it hard to cope with even the simple activities of daily living at home.  She has understandably become very low in mood”.
 
6.         By a majority decision of the tribunal, it was held that the appellant is entitled to higher rate mobility component of DLA from 28 July 2004 to 27 July 2006.  However, the tribunal (and it is not clear whether this was by a majority or was unanimous) the tribunal removed the existing lowest rate care component of DLA.  It reasons were these:
 
            “We consider that the evidence from the GP [the letter dated 11 March 2005] is a proper basis on which we can award higher rate mobility component.
 
            …
 
            We did not accept the appellant as a credible witness.  She appeared to exaggerate the situation and in particular we note the GP’s comments … that there appears to be no specific or exact clinical diagnosis for the condition.
 
            Accordingly we have come to the view that the appellant could reasonably be expected to cope with all her own bodily functions, both during the day and during the night.  In particular, in the oral evidence, the appellant agreed that she would be able to make a main meal.  Given the manual dexterity required for such an operation, we are of the view that, by analogy, the appellant can reasonably be expected to cope with her own bodily functions without assistance, both the day (sic) or during the night”.
 
Errors of law
 
Incorrect approach to supersession 
 
7.         The tribunal appears completely to have overlooked the point that, in so far as a removal of her current award of care was concerned, the onus of proof lies on the Secretary of State and, furthermore, before the issue of entitlement is addressed, grounds for supersession have to be demonstrated.
 
8.         This was not done.  In order to supersede her care award, the tribunal would, at minimum require to discuss the EMP report which underpinned it and the GP’s report of 22 October 2004 (to which no reference whatsoever is made by the tribunal) which confirmed her continuing carpal tunnel symptoms.  Nor does the tribunal appear to have drawn to the appellant’s attention the possibility that, far from increasing her care award, it was considering taking it away.
 
9.         As was said by the Tribunal of Commissioners in R(IB) 2/04 at paragraphs 93 and 94 when considering when it would be appropriate for a tribunal to exercise its discretion to consider superseding adversely to the claimant when that was not raised by the Secretary of State as an issue in the appeal:
 
“93.      … The discretion is one to be exercised judicially, taking into account all the circumstances of the particular case. We do not think it appropriate or helpful to attempt to formulate guidance as to the exercise of the discretion.
 
94.       There must, however, be a conscious exercise of this discretion and (if a statement of reasons is requested) some explanation in the statement as to the reasons why it was exercised in the manner it was. In exercising the discretion, the appeal tribunal must of course have in mind, in particular, two factors. First, it must bear in mind the need to comply with Article 6 of the Convention and the rules of natural justice. This will involve, at the very least, ensuring that the claimant has had sufficient notice of the tribunal’s intention to consider superseding adversely to him to enable him properly to prepare his case. The fact that the claimant is entitled to withdraw his appeal any time before the appeal tribunal’s decision may also be material to what Article 6 and the rules of natural justice demand. Second, the appeal tribunal may consider it more appropriate to leave the question whether the original decision should be superseded adversely to the claimant to be decided subsequently by the Secretary of State. This might be so if, for example, deciding that question would involve factual issues which do not overlap those raised by the appeal, or if it would necessitate an adjournment of the hearing”.
 
Inadequate facts and reasons
 
10.       The tribunal made no findings with respect to any other condition than what it called “myalgia” of unknown cause.  It made no reference to either the physiotherapist’s report or to the EMP report or to the GP’s report and therefore stated no view on how it assessed this important evidence.
 
11.       The carpal tunnel syndrome was particularly relevant to an application of the cooking test.  So is the assertion of “extreme fatigue”.  It is not determinative that a claimant is physically able to carry out bodily functions or the activities required for the cooked main meal test if, because of pain or fatigue, the point is reached at which it is unreasonable to expect her to do so without assistance or if her disablement prevents her from doing so because it induces lack of motivation such that she would probably not perform the bodily functions or cooking activities unless she was so encouraged.  It is a question of degree but the tribunal did not even address the possibilities raised by the evidence.
 
Contradictory reasoning
 
12.       Evaluation of the evidence and determination of the merits is a tribunal’s exclusive function unless there is an irrational or improper approach or it is inadequately explained.  There is usually no error of law in a tribunal accepting most of a report but allowing modification of it in some respects.  All must depend upon the circumstances and the explanation of its analysis by a tribunal.  However, without such clarification, I do myself find it somewhat bewildering that the tribunal used the GP’s letter of 11 March 2005 to support an award of higher rate mobility component yet, despite that same doctor opining that the appellant “… is finding it hard to cope with even the simple activities of daily living at home”, actually took away her current care component.

 
Summary
 
13.       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 her appeal limited to issues of law, the decision on the facts in her case remains open.
 
14.       While no-one likes non-acceptance as a credible witness, a tribunal exercises a judicial function in determining whether or not statutory criteria for entitlement are satisfied.  The judicial function necessarily involves assessing the quality of a witness’s evidence.  If the tribunal considered that the appellant appeared to exaggerate the situation that does not amount to an error of law on the tribunal’s part.  The weight to be given to any evidence is completely a matter for the tribunal and a matter of fact.  The tribunal includes a member experienced in the needs of the disabled and an expert medical member.
 
15.       Various points have been made by the representative to the effect that the procedure followed by the tribunal was unfair.  The sister and daughter of the appellant, in addition to her representative, have lodged complaints, to the regional chairman of the Appeal Service and the latter has sought comments from the members; in the tribunal file, however, there is only a response from the medical member, who points out that he was being appraised that day and his medical assessor expressed satisfaction with his competence.
 
16.       As I am returning the appeal for a wholly fresh hearing for the other reasons given above, I have not sought my own comments from the participants at the hearing.  However, I am surprised that the experienced representative did not appreciate that there is no longer a statutory requirement requiring that, where practicable, a member of the tribunal is to be of the same sex as the claimant.  The appellant was asked to indicate if she wished to have any special arrangements at her hearing and neither she, nor the representative, stated in advance that they wished to have a female member sitting on the tribunal.  I am also surprised that the appellant took exception to a person “wandering in and out of the room” and had not, therefore, been informed by the representative that this was the clerk to the tribunal who has, of course, other duties which require presence outwith the hearing room.
 
17.       Complaint has been made that the appellant is hard of hearing and therefore became confused by the questioning.  I can spot nothing in the appeal papers which earlier points to a hearing problem and certainly there is no mention of it in the lengthy written submission lodged to the tribunal by the representative nor any indication that the representative immediately pointed out the appellant’s hearing problem to the tribunal.  Offence also appears to have been taken by the appellant and her daughter because the representative was asked to give her submission at the end.  But under the tribunal rules, the chairman is in charge of the procedure.  It is often considered helpful to take the direct evidence first and leave the representative to point out at the end if anything has been missed.  This avoids duplication or a witness saying something simply because a representative has expressed a problem that way.  Where, as here, a representative has usefully provided a written submission in advance, it is often more constructive to hear from the appellant immediately.  In any event, no error of law arises in the order chosen.
 
18.       All members of a tribunal receive training in how to question effectively yet courteously.  However, I speak quickly myself and perhaps this is an area to which Appeals Service training could give greater emphasis: the need to keep constantly in mind that an appellant will very often be nervous and anxious and that it is important to take things at a reasonable pace.  For a tribunal, the case is routine but it is the very opposite for the appellant.  Furthermore, very important matters are at stake for an appellant, quite apart from the fact that he or she may have a significant disablement irrespective of whether or not statutory criteria are satisfied.
 
19.       However, some of the upset experienced at the present hearing could, in my view, have been avoided if more had been done by the representative in advance to prepare her client for what is a judicial hearing, determining legal entitlement to a significant monetary benefit, and not an informal case conference.  In any adjudication it will be necessary to ask probing questions to test the case, albeit not aggressive ones.  It is very unfortunate that the DM is so often not represented at the hearing, although this would materially assist in making the judicial nature of the proceedings crystal clear.

 

 
 
                                                                                          (Signed)
                                                                                          L T PARKER
                                                                                          Commissioner
                                                                                          Date:  19 August 2005