[2007] UKSSCSC CDLA_2288_2007 (13 November 2007)

DECISION OF THE SOCIAL SECURITY COMMISSIONER
1.	My decision is given under section 14(8)(b) of the Social Security Act 1998:
I SET ASIDE the decision of the Wolverhampton appeal tribunal, held on 3 April 2007 under reference 904/07/00040, because it is erroneous in point of law.
I REMIT the case to a differently constituted appeal tribunal and DIRECT that tribunal to conduct a complete rehearing of the issues that are raised by the appeal and, subject to the tribunal’s discretion under section 12(8)(a) of the 1998 Act, any other issues that merit consideration. In particular:
The appeal tribunal must investigate and determine the claimant’s entitlement to a disability living allowance on the 'renewal' claim from the effective date of 13 November 2006. In doing so, the tribunal must not take account of circumstances that were not obtaining at the time of the decision under appeal, which was made on 19 September 2006: see section 12(8)(b) of the Social Security Act 1998, as interpreted by the Tribunal of Commissioners in R(DLA) 4/05. Later evidence is admissible, provided that it relates to the time of the decision: R(DLA) 2 and 3/01. 
If the tribunal finds that the claimant has autism (and on my reading there is no evidence to the contrary in the papers before me), it must accept that that was caused by arrested development or incomplete physical development of the brain. 

REASONS
2.	This case raises the issue of the status of a decision embodying a finding given by a Commissioner after hearing expert medical evidence.
Benefit history 
3.	The claimant was born on 13 November 2001. He was first awarded a disability living allowance for the inclusive period from 8 April 2005 to 12 November 2006, the day before his fifth birthday. In view of his age, the award was limited to the care component, which was awarded at the middle rate. An application to supersede that award was refused. On a 'renewal' claim, the Secretary of State’s decision-maker made an award for the inclusive period from 13 November 2006 to 12 November 2009, consisting of the care component at the middle rate and the mobility component at the lower rate. On appeal, the tribunal raised the rate of the care component to the highest rate, but refused to raise the rate of the mobility component under the severely mentally impaired provisions. I gave leave to appeal on two grounds in respect of the application of those provisions. The Secretary of State’s representative has supported the appeal.
Severely mentally impaired -  the legislation
4.	As the tribunal had increased the care component to the highest rate, it had to consider whether section 73(1)(c) and (3) of the Social Security Contributions and Benefits Act 1992. This provides for entitlement to the mobility component if the claimant is entitled to the care component at the highest rate, provided that the claimant satisfies two further requirements:
‘(3)	A person falls within this subsection if-
(a)	he is severely mentally impaired; and
(b)	he displays severe behavioural problems’.
Section 73(11)(a) provides that for the mobility component to be awarded on this basis at the higher of the two weekly rates. 
5.	Section 73(6) provides that ‘Regulations shall specify the cases which fall within subsection (3)(a) and (b)’. Regulation 12(5) and (6) of the Social Security (Disability Living Allowance) Regulations 1991 are made under that authority. Regulation 12(5) provides that a person is ‘severely mentally impaired’
‘if he suffers from a state of arrested development or incomplete physical development of the brain, which results in severe impairment of intelligence and social functioning.’
Regulation 12(6) provides that a person ‘displays severe behavioural problems’
‘if he exhibits disruptive behaviour which-
(a)	is extreme,
(b)	regularly requires another person to intervene and physically restrain him in order to prevent him causing physical injury to himself or another, or damage to property, and
(c)	is so unpredictable that he requires another person to be present and watching over him whenever he is awake.’
Severely mentally impaired – autism
6.	The tribunal found that regulation 12(5) was not satisfied. The chairman recorded that:
‘On the medical advice of [the medically qualified panel member of the tribunal] we find that at this time there is no conclusive evidence that [the claimant] suffers from a state of arrested development or incomplete physical development of the brain so that he does not get through that initial qualifying “gate”.’
That is all. There is no further explanation.
7.	What was the evidence? There was evidence from an Associate Specialist Paediatrician that the claimant had autism. It is stated as the claimant’s diagnosis without qualification. There was also evidence from a Community children’s nurse that this diagnosis had been made. The tribunal found as a fact that the claimant had autism. 
8.	In CDLA/1678/1997, Mr Commissioner Rice heard evidence from Dr Ian McKinley BSc (Hons), MB, CB, DCH, FRCP, FRCPCH, who had previously been a Consultant Paediatric Neurologist at the Manchester’s Children Hospital and who was at the time Senior Lecturer in Child Health at the University of Manchester, the Paediatric Member of the Disability Living Allowance Advisory Board and co-editor of three text books on childhood neurodevelopmental disabilities, including autism. His evidence was that autism had a physical cause in the form of a disorder of the brain. That cause might or might not be identifiable. But there would be a physical cause present, even if it could not be identified. On the basis of that evidence, Mr Rice decided that the claimant had a state of arrested development or incomplete physical development of the brain. That conclusion was quoted but not challenged when another decision by Mr Rice was before the Court of Appeal in M (a child) v Chief Adjudication Officer (reported as R(DLA) 1/00). 
9.	In my grant of leave, I asked the Secretary of State two questions about the present state of medical knowledge on autism. The representative’s answer is:
‘In response to the Commissioner’s specific questions on this matter the Secretary of State is not aware of any expert medical opinion that would challenge the evidence detailed in paragraphs 6 and 7 of CDLA/1678/1997. The Secretary of State is also unaware of any medical evidence that would suggest that any variation in the nature of autism between individuals would affect whether or not they would be regarded as suffering from the arrested development or incomplete development of the brain.’
10.	The Secretary of State has a team of specialist advisers on medical issues and they have access to the latest research. I am sure that the response to my questions was only written after consulting those advisers and records their advice.
Severely mentally impaired – analysis of the tribunal’s approach
11.	In theory, the issue for a tribunal is whether the claimant has arrested development or incomplete development of the brain and it is not necessary to reach any conclusion on diagnosis. However, in practice, I do not know how a tribunal could make such a finding other than by reasoning from a recognised medical condition. 
12.	A tribunal may or may not have a firm diagnosis of autism. If it does not have a firm diagnosis, it must decide on the balance of probabilities as Mr deputy Commissioner Mark did in CDLA/1520/2005. If it has a firm diagnosis, it may decide from other evidence available to it that the diagnosis is wrong. That would be a brave decision to take, because the tribunal would not have the full information on which the diagnosis had been made. But it is a possibility.
13.	In this case, there was a firm diagnosis of autism and the tribunal made a finding that the claimant has autism. Accordingly, the tribunal’s conclusion cannot have been based on any doubt about the accuracy of that diagnosis. There must be another explanation. It can only be that the tribunal did not accept that autism was, by its very nature, caused by an arrested development or incomplete physical development of the brain. Nor can the tribunal’s decision be based on ignorance of Mr Rice’s decision. It is well known to tribunals, it is cited in the standard reference work used by tribunals, and the claimant’s representative mentioned both the reference work and the decision itself in his presentation at the hearing. There must be some other explanation and that can only be that the tribunal did not accept Dr McKinley’s evidence. 
14.	I could decide that the tribunal applied the wrong standard of proof. The chairman referred to the lack of ‘conclusive’ evidence, whereas the relevant standard was the balance of probabilities. However, I consider it more likely that this was just a matter of expression and does not show that the tribunal misdirected itself on so well-known a matter as the standard of proof. That aside, I could deal with this case in three different ways.
15.	First, I could decide that the tribunal failed to give the claimant a fair hearing. It must have relied on the opinion of the medically qualified panel member to override the evidence of Dr McKinley. However, that opinion and the knowledge on which it was based was not put to the claimant’s representative, as it should have been: Willmer LJ in R v Deputy Industrial Injuries Commissioner, ex parte Moore [1965] QB 456 at 476 and Lord Parker CJ in Crofton Investment Trust Ltd v Greater London Rent Assessment Committee [1967] 2 QB 955 at 968. 
16.	Second, I could decide that the tribunal failed to give an adequate explanation for its conclusion. Mr Rice’s decision and the evidence it contained were before the tribunal. A tribunal does not have to accept evidence, but it must have a reason for not doing so: Collins J in R v Social Security Commissioner, ex parte Bibi (23 May, 2000 unreported). The tribunal has not given any reason and that makes its decision wrong in law. 
17.	Third, I could decide that the tribunal’s finding on the nature of autism was contrary to the evidence. Mr Rice’s decision was before the tribunal and that decision included the evidence of Dr McKinley. That evidence was, therefore, before the tribunal. There was no evidence to contradict it and the tribunal’s finding was not supported by evidence. A variant of this approach is that CDLA/1678/1997 decided as a matter of law that, on the state of medical knowledge that is still current, it would be perverse for a tribunal to come to any other conclusion on the origin of autism. 
Factual precedent or guidance decisions
18.	However, I am not content to deal with the case in any of those ways. To do so would be dishonest. The reason why the tribunal went wrong in law is not that its proceedings were unfair, or that its reasons were inadequate or that its finding was contrary to the evidence before it. It is that its reasons were wrong. Mr Rice made a finding that was based on evidence from an acknowledged national expert that was not challenged before him, was later accepted as correct before the Court of Appeal and still represents expert thinking on the subject. But under the traditional understanding of precedent, decisions are binding only for the propositions of law that they embody, not for their findings of fact. I believe that that approach has to be reconsidered. I have done so by reference to: (i) principle, (ii) court authorities and (iii) the particular circumstances of tribunals. 
Principle
19.	It is relevant to consider why decisions on issues of fact are not regarded as authoritative in later cases. The reason is that the facts are so dependent on the evidence before the tribunal and the tribunal’s assessment of the evidence and the witnesses. That reasoning does not apply in a case like the present. Mr Rice made his finding on the basis of uncontested evidence from a leading expert and that evidence still represents expert opinion. That leaves little, if any, scope for making an individual assessment in the context of a particular case. 
20.	It is also relevant to consider the functions that precedent fulfils. It enhances the efficiency and ease of decision-making by avoiding the need for every case to be decided afresh without reference to previous decisions and the analysis in those decisions. It is also a means by which consistency of, and discipline in, decision-making is enhanced. Finally, it contributes to discipline in the development of the law, equality between parties in the application of the law, and to certainty and predictability for those to whom it applies. Cases like CDLA/1678/1997 fulfil all those functions. 
21.	The importance of consistency at all levels was emphasised, albeit in a different context, by the Employment Appeal Tribunal in Digital Equipment Ltd v Clements (No 2) [1997] ICR 237 at 239:
‘Employers and trade unions have a right to know where they stand, as far as may be, when making decisions affecting individual employment rights; industrial harmony is of great value. They also have a right to expect consistency from industrial tribunals, who in turn have a right to expect it from the appeal tribunal.’ 
22.	Moreover, given the limited evidence that is often presented to tribunals, it may be all the more important that there is a sound factual basis provided by authority on which decisions in cases like the present should be made. This lack of evidence was a feature of CDLA/2470/2006. In that case, Mr Commissioner Rowland was concerned with the severely mentally impaired provisions. He was able to reason in part directly from the nature of the claimant’s condition:
‘9.	Turning to the question whether the claimant is severely mentally impaired and displays severe behavioural problems, I have no doubt that the first of those conditions is satisfied, despite the lack of detailed medical evidence especially addressed to the criteria set out in regulation 12(5) of the 1991 Regulations. The diagnosis of Downs’s Syndrome and the description of the claimant’s behaviour is adequate evidence in this case.’
Court authorities
23.	If the approach of the courts is taken as a guide, there are at least two lines of authority on which a precedent status for decisions like CDLA/1678/1997 could be based. 
24.	The first line of authority concerns safe country cases for the purposes of asylum. I drew this line of authority to the Secretary of State’s attention in my grant of leave. In those cases, the Court of Appeal recognised that a judicial policy could apply in order to ensure consistency in the factual analysis of information that is common to a class of case. In Shirazi v Secretary of State for the Home Department [2004] 2 All ER 602, the Court endorsed the practice of the former Immigration Appeal Tribunal, which was designed to achieve consistency between cases and to save the need for the same issue to be analysed in every relevant case. Sedley LJ said:
‘29.	I accept readily that it is not a ground of appeal that a different conclusion was open to the tribunal below on the same facts, nor therefore that another tribunal has reached a different conclusion on very similar facts. But it has to be a matter of concern that the same political and legal situation, attested by much the same in-country data from case to case, is being evaluated differently by different tribunals. The latter seems to me to be the case in relation to religious apostasy in Iran. The differentials we have seen are related less to the differences between individual asylum-seekers than to differences in the Tribunal's reading of the situation on the ground in Iran. This is understandable, but it is not satisfactory. In a system which is as much inquisitorial as it is adversarial, inconsistency on such questions works against legal certainty. That does not mean that the situation cannot change, or that an individual's relationship to it does not have to be distinctly gauged in each case. It means that in any one period a judicial policy (with the flexibility that the word implies) needs to be adopted on the effect of the in-country data in recurrent classes of case.’
25.	The practice was also endorsed by Lord Hope in Januzi v Secretary of State for the Home Department [2006] 2 AC 426:
‘50.	In practice the tribunal tries to provide guidance as to how cases that originate from areas of particular difficulty should be dealt with. The country guidance cases that have already been mentioned seek to achieve this result …. Where this is done, that guidance should be followed by immigration judges. It is desirable that they should do so in the interests of fairness and consistency. But in the end of the day each case, whether or not such guidance is available, must depend on an objective and fair assessment of its own facts.’
26.	This line of authority will not be developed in asylum law, because the new Asylum and Immigration Tribunal uses practice directions to achieve the same end. Those directions are issued under the authority of section 107(3) of the Nationality, Immigration and Asylum Act 2002:
‘(3)	A practice direction may, in particular, require the Tribunal to treat a specified decision as authoritative in respect of a particular matter.’
And I notice that section 23 of the Tribunals, Courts and Enforcement Act 2007 will, when it is in force, authorise the Senior President of Tribunals and a Chamber President to give directions as to practice and procedure. Section 23(6) assumes that those directions may include ‘guidance about … the application or interpretation of the law’. That is different wording from section 107(3). It could not be used in the same way, because ‘practice and procedure’ (the words of the enabling power) refer to ‘the mode of proceeding by which a legal right is enforced, as distinguished from the law which gives or defines the right, and which by means of the proceeding the Court is to administer the machinery as distinguished from its product’: Lush LJ in Poyser v Minors (1881) 7 QBD at 329 at 333.
27.	The second line of court authority concerns the approach to the exercise of a discretion. The Court of Appeal considered this in Merchandise Transport Ltd v British Transport Commission [1962] 2 QB 173, which concerned the discretionary decisions of the Transport Tribunal. Devlin LJ drew attention to the importance of guidance and consistency (at 193):
‘In my opinion a series of reasoned judgments such as the tribunal gives is bound to disclose the general principles upon which it proceeds. I think that that is not only inevitable but also desirable. It makes for uniformity of treatment and it is helpful to the industry and to its advisers to know in a general way how particular classes of applications are likely to be treated.’
Danckwerts LJ emphasised the need to apply the discretion in the individual case (at 207-208):
‘It is no doubt an advantage to traders and those who advise them to have records of this kind to show how applications are likely to be dealt with. No doubt also it is right that the tribunal should have regard to a consistent practice in dealing with applications for licences. But in the exercise of a discretionary power of this kind, an applicant is entitled to have his application considered on the merits and in the circumstances of his particular case. If the tribunal makes a practice of relying on previous decisions in respect of other applications that have come before the tribunal, there is, in my opinion, danger that the discretion of the tribunal may not be applied in an unfettered and proper manner having regard to the merits of the particular case, and, of course, having regard to the principles which are regarded as being incorporated in the provisions of the Act.’
28.	Both lines of authority are relevant to the issue of factual precedents. They show the willingness of the courts to allow decisions on issues of fact and judgment to have a degree of authority. Whether that operates as part of (an expanded doctrine of) precedent or through some other device is irrelevant; the result is the same. The comments of Devlin LJ in Merchandise Transport Ltd are relevant, because they reflect the functions of precedent. The comments of Lord Hope in Januzi and Danckwerts LJ in Merchandise Transport Ltd are relevant, because they recognise both the need for, and possibility of, reconciling (i) that a decision must be taken on the facts of a particular case while (ii) ensuring fairness and consistency.
The particular circumstances of tribunals
29.	So far I have assumed the nature of precedent as it applies in the courts. It need not necessarily follow that the same form of precedent should apply in tribunals. It is, therefore, relevant to consider why precedent applies in this jurisdiction. From the beginning, the Commissioner and his deputies linked the particular authority of a published (reported) decision with the expectation that publication would provide guidance for tribunals and decision-makers: C.S.G. 9/49 (K.L.) at paragraph 3 and C.S. 414/50 (K.L.) at paragraph 2. 
30.	The emphasis on publication and reporting was a feature of the times when the current facilities for disseminating information were not available. Now that all significant decisions by Commissioners, whether reported or not, are available on the Commissioners’ own website and on those of a number of commercial concerns, the former reasoning on guidance applies to reported and unreported decisions alike. 
31.	Traditionally, the guidance has not included matters of fact, but the foundation reasoning from the early post-war years is capable of supporting an extension into the area of fact.
32.	Committees appointed to consider tribunals have also considered the authority of decisions. The Franks’ Committee on Administrative Tribunals and Enquiries (1957 Cmnd. 218) recommended reporting as proof of consistency and as a guide to the parties and their advisers (paragraph 102). Sir Andrew Leggatt’s report on Tribunals for Users (2001) discussed precedent, but was more concerned with the means by which they would be identified: paragraphs 6.17 to 6.26.
Academic discussion
33.	Factual precedent has been discussed by Professor Trevor Buck in Precedent in Tribunals and the Development of Principles (2006), 25 CJQ 458 at 477 to 481. He refers to some of the authorities I have discussed and to others. The article was written at the start of the author’s review into precedent in the tribunal system, so it was premature for him to identify any conceptual basis for the authorities I have discussed. 
Conclusions 
34.	There is no general doctrine, either in the courts or tribunals, that recognises the existence of a category of precedent that is authoritative on issues of fact. 
35.	Such a category would, though, be consistent with general principles and, as this case shows, would meet a need. The authorities contain general reasoning on the importance of guidance and consistency that supports precedent as creating a judicial policy and as a guide to the likely application of a discretion. That reasoning could be applied to issues of fact. 
36.	However, against these considerations there are others that, at least at first sight, appear to be opposed. First, there is the need to respect the tribunal’s fact-finding function: Lord Wilberforce in Anisminic v Foreign Compensation Commission [1969] 2 AC 149 at 208. Second, there is the need to avoid the creep of error of law into matters of fact or judgment: Eveleigh LJ in Varndell v Kearney & Trecker Marwin Ltd [1983] ICR 683 at 695 and Carnwath LJ in Dobbin v Redpath [2007] 4 All ER 465 at paragraph 29. Third, there is the need for facts to be found and judgments to be exercised on the evidence available in, and the circumstances of, the individual case before the tribunal. 
37.	These blocks of considerations compete and can conflict, but they are also capable of being reconciled, as the courts have recognised. This reconciliation can be effected through a number of factors.
38.	One factor is the significance of the functions that precedent fulfils and the fundamental reasons why factual precedents are not generally appropriate. They limit the circumstances in which it is appropriate to recognise a factual precedent. Treating CDLA/1678/1997 as binding on tribunals furthers the functions of precedent and the nature of the issue and the evidence take it outside the rationale for excluding issues of fact from the scope of precedent. 
39.	A further factor is the need for Commissioners to exercise appropriate caution in recognising a decision as creating a factual precedent. In R(I) 2/06, the Tribunal of Commissioners dealing with the prescribed disease of vibration white finger commented:
‘68.	Commissioners have always regarded it as part of their function to give guidance where needed for the assistance of tribunals and departmental decision-makers on the relevant principles of law to be applied in this specialist jurisdiction: this is an area where certainty and consistency of approach and an orderly development of the law are of particular importance given the complex nature of the legislation and the very large number of individual cases potentially involved. However it is a function to be exercised cautiously, particularly in an instance such as the present where the questions of assessment of an individual’s percentage level of functional disablement are not primarily matters of legal interpretation at all, but of factual judgment – including judgment on medical matters – entrusted to the specialist tribunals best qualified to decide them.’
I note: (i) the Tribunal did not completely rule out the possibility of giving guidance on matters of factual judgment; (ii) the origin of autism is not a matter of factual judgment, as the Tribunal used that expression; and (iii) the tribunals that deal with disability living allowance are specialist, but they do not generally have access to the level of expertise on which Mr Rice relied in CDLA/1678/1997. Mr Rice was, with respect, clearly entitled to make the decision he did in that case, given the evidence available to him. 
40.	A final factor is to recognise that a factual precedent can be distinguished or disregarded if it has been overtaken by later research: (i) which shows the decision should be more limited in its scope than originally intended; (ii) which shows that it is wrong; or (iii), perhaps, which casts significant doubt on its accuracy. 
41.	It should not be surprising that reconciliation is possible, because the recognition of a body of factual precedents is but a short step from the use of existing heads of error of law that I have mentioned above: fair hearing, adequate reasons and perversity of findings. On one analysis, it would be nothing more than an open acknowledgement of what can be achieved, or concealed, by the use of the traditional approach.  
42.	Lacking as I do the foresight of a prophet, I do not intend to define the limits within which factual precedent should operate. It is sufficient for me to say that, whatever those limits may be, the decision in CDLA/1678/1997 falls within them. The tribunal was wrong in law not to follow it.
Severe or moderate mental impairment
43.	The tribunal gave reasons for refusing the award the mobility component at the higher rate in addition to its finding that the claimant did not have arrested development or incomplete physical development of his brain. If its decision on those other issues was sound, any mistake that it made on arrested or incomplete physical development would not have affected the outcome. However, I consider that at least one aspect of its other reasoning was not sound. The chairman referred twice to the evidence of the Associate Specialist Paediatrician that the claimant had only moderate learning disability or difficulties. However, on the second occasion the chairman related that to the statutory requirement of ‘severe behavioural problems’. That was a misuse or misreading of the evidence. The Paediatrician used the word moderate in relation to the claimant’s learning difficulties, not to the behavioural problems that he exhibited as a result of those difficulties and his autism. That is an additional reason why the tribunal went wrong in law.
Disposal
44.	I allow the appeal, set aside the tribunal’s decision and direct a rehearing.
45.	I have assumed for the purpose of this decision that the tribunal was correct to increase the rate of the care component. The Secretary of State has not questioned the correctness in law of that element of the tribunal’s decision. However, the result of my decision is to restore, pending the rehearing, the Secretary of State’s decision to award the care component at the middle rate and the mobility component at the lower rate. The claimant’s entitlement to both components will be considered afresh at the rehearing. This is the normal operation of a successful appeal to a Commissioner. It carries no implication that the claimant is, or is not, entitled to the care component at the highest rate. That is a matter for the rehearing.

Signed on original
on 13 November 2007	Edward Jacobs
Commissioner