[2007] UKSSCSC CDLA_561_2006 (29 May 2007)

CDLA/561/2006
CDLA/1032/2007

DECISIONS OF THE SOCIAL SECURITY COMMISSIONER
  
1.       (a)	In CDLA/561/2006, the appeal against the decision of the legally qualified panel member dated 26 January 2006, whereby she refused to reinstate the claimant’s appeal against a decision of the Secretary of State dated 30 September 2003 which she had struck out, lapsed when the appeal to the tribunal was reinstated on 28 July 2006.

          (b)	In CDLA/1032/2007, I refuse the claimant leave to appeal against the decision of the Lincoln appeal tribunal dated 23 November 2006, whereby it dismissed the claimant’s appeal against the decision of the Secretary of State dated 30 September 2003. 

REASONS

2.	There has been a long history of disputes between the claimant and the Department for Work and Pensions concerning disability living allowance (and other benefits with which I am not concerned in these cases).  It is unnecessary to set out the whole history but the final sequence of awards of disability living allowance should be recorded.  From 24 July 1997 to 14 June 2000, the claimant was in receipt of the higher rate of the mobility component and the middle rate of the care component.  From 15 June 2000 to 23 July 2001, he was in receipt of the higher rate of the mobility component and the highest rate of the care component.  He was then awarded the higher rate of the mobility component and the middle rate of the care component for a further three years, to 23 July 2004, but, when the claimant appealed seeking the highest rate of the care component, a tribunal sitting on 2 April 2003, decided that he had not been entitled to either component from 24 July 2001.  In CDLA/2609/2003, Mr Commissioner Powell refused the claimant leave to appeal against the tribunal’s decision.  

3.	The cases that are before me both arise out of what, at the time, must have been an application for revision or supersession, treated as made on 6 February 2003, shortly before the decision given by the tribunal on 2 April 2003.  In view of the tribunal’s decision, the application was sensibly treated as a new claim effective from the date it was treated as made.  A report dated 16 September 2003 was obtained from an examining medical practitioner, a Fellow of the Royal College of Surgeons, who was asked to examine the claimant in the light of the tribunal’s decision and to address certain issues arising from that decision.  In the light of that report and despite the tribunal’s decision, the claimant was awarded the higher rate of the mobility component and the lowest rate of the care component from 6 February 2003 to 5 February 2005.  That decision of the Secretary of State was given on 30 September 2003.  Undaunted by his previous experience, the claimant appealed, seeking the middle or highest rate of the care component.  For various reasons, proceedings were delayed.  Eventually, on 14 September 2005, a legally qualified panel member directed the claimant to inform the clerk to the tribunal of the name of his current general practitioner and give his consent to the appeal tribunal contacting the general practitioner to obtain all medical records and reports held by the general practitioner.  On 12 October 2005, the legally qualified panel member struck out the claimant’s appeal for failure to comply with that direction and on 26 January 2006, she refused to reinstate the appeal.  On 21 June 2006, shortly after I decided in CIS/1363/2005 that a Commissioner has jurisdiction to hear an appeal from a decision of a legally qualified panel member, I granted the claimant leave to appeal against the decision of 26 January 2006 on the ground that there was a question whether the legally qualified panel member was entitled to issue the direction of 14 September 2005 and that, if the direction was improper, the appeal to the tribunal should not have been struck out and should have been reinstated.  That is the appeal on file CDLA/561/2006.

4.	Meanwhile, on 1 October 2004, the claimant had made a renewal claim effective from 6 February 2005 and had been awarded only the lowest rate of the care component for an indefinite period.  His appeal against that decision was dismissed on 31 March 2006 and, in CDLA/2868/2006, I refused leave to appeal against that decision on 29 September 2006.  Thus, only the isolated period from 6 February 2003 to 5 February 2005 remains in issue.

5.	When I granted leave to appeal in CDLA/561/2006, I directed that the tribunal file and my grant of leave be sent to the clerk to the appeal tribunal because it remained open to the legally qualified panel member to reinstate the appeal.  Regrettably, I neglected to ask the clerk to inform me if the appeal was reinstated and the consequence, which I should have foreseen, was that I was not informed when, on 28 July 2006, the legally qualified panel member did reinstate the appeal before the tribunal.  The appeal before me has proceeded to the stage where the Secretary of State has conceded, or at least inclined to the view, that the appeal to the tribunal should not have been struck out and that the appeal to me should be allowed if, contrary to his principal submission, I have jurisdiction to decide it.  I have stayed proceedings to await the Court of Appeal’s decision on the Secretary of State’s challenge to my decision in CIS/1363/2005.  

6.	It is plain that the effect of the appeal to the tribunal being reinstated is to cause the appeal before me in CDLA/561/2005 to become moot and to lapse.  That is because, once the chairman reinstated the appeal to the tribunal, the claimant had obtained all that he could possibly have obtained on that appeal to the Commissioner.  In those circumstances, I accept the Secretary of State’s submission that it would be inappropriate for me to say more about the merits of the appeal on file CDLA/561/2006.

7.	I became aware of the reinstatement of the appeal to the tribunal when I received the claimant’s application for leave to appeal against the ultimate decision of the tribunal, given on 23 November 2006, to the effect that the claimant was entitled only to the lowest rate of the care component from 6 February 2003 to 5 February 2003 and not to the mobility component.  This is the application in CDLA/1032/2007 for leave to appeal to a Commissioner.

8.	As the Secretary of State had awarded the mobility component, it is not surprising that it was he, rather than the claimant, who first asked the tribunal chairman for a statement of reasons.  Nor is it surprising that some of the claimant’s grounds of appeal are directed towards the tribunal’s decision that he was not entitled to the mobility component.  However, I am not disposed to grant leave to appeal in respect of that part of the tribunal’s decision, whether or not it was erroneous in point of law.  By the time the tribunal made its decision, the award under appeal had expired and the claimant had been paid the whole of the amount due in respect of the mobility component (although some deductions that were made by way of recovery of overpaid income support).  With only one qualification, the tribunal accepted as accurate the opinion of the examining medical practitioner upon which the Secretary of State had based his original decision and the Secretary of State has confirmed that there is no question of him seeking recovery under section 71 of the Social Security Administration Act 1992 of the overpayment that the tribunal’s decision shows has been made.  In those circumstances, there is no practical advantage to anyone in the issue of the claimant’s entitlement to the mobility component being pursued, particularly as the claimant’s capacity to walk since 6 February 2005 has been the subject of a decision by a differently constituted appeal tribunal against which I have refused leave to appeal.  The Secretary of State’s representative has very properly mentioned that, although he cannot enforce recovery in the circumstances of the case, it is possible that the claimant will be sent a letter asking him to repay the overpaid benefit but, as it lies in the claimant’s power to decline any such suggestion, that makes no difference.

9.	Frankly, I find it difficult to understand why the tribunal considered it necessary to disagree with the Secretary of State’s decision in respect of the mobility component when that was not an issue expressly raised on the appeal by either of the parties, its findings did not raise any question of misrepresentation or failure to disclose material facts on the part of the claimant and it knew that the period since 6 February 2005 had already been considered by another tribunal.  The tribunal was perfectly entitled to consider the question of the claimant’s entitlement to the mobility component but, having found the claimant to have been suffering from reduction in muscle tone and co-ordination, with the result that it took him two minutes to walk only 40 to 50 metres using a stick after which he would have had to stop for a few minutes before walking the same distance again, I suspect that most tribunals would have decided not to interfere with an award of the higher rate of the mobility component that had expired and was not in issue between the parties.  

10.	I turn to the claimant’s challenges to the tribunal’s decision not to award either the middle or highest rate of the care component.  It has to be said at the outset that the chairman’s statement of reasons for the tribunal’s decision in respect of the care component is extraordinarily brief, given the number of issues raised by the claimant.  It is much shorter than the reasons in respect of the mobility component.  However, brevity of reasons is not the same as inadequacy and it is important to keep in mind that the tribunal accepted the examining medical practitioner’s evidence in the report dated 16 September 2003, save to a minor extent in respect of the length of time it would have taken the claimant to walk 50 metres.  It is to be inferred from the last paragraph of the statement of reasons, in which the tribunal referred to the extent to which it had been hampered by the claimant’s refusal to allow the clerk to obtain evidence from his general practitioner and the failure of the claimant to attend the hearing, that it preferred the evidence of the examining medical practitioner where it differed from the claimant’s because it was not prepared to accept the claimant’s evidence in the absence of independent support.  It may also be inferred that that reluctance to accept the claimant’s case at face value when there was contradictory evidence was due to the fact that much of the claimant’s evidence was vague or not related to the conditions of entitlement to disability living allowance, that instead of addressing the relevant issues in his case in the necessary detail the claimant had preferred to raise procedural issues of doubtful merit and that the claimant had refused to avail himself of the opportunities offered to him to provide further relevant support for his case.  (The fact that a tribunal may draw adverse inferences from a failure to comply with a direction to provide certain evidence is one reason why it is not necessary to strike an appeal out for failure to comply with such a direction, even if there is the power to do so.)

11.	The claimant complains about the tribunal relying on the evidence of the examining medical practitioners who examined him on 16 September 2003 and 28 June 2005 on the ground that they are not registered with the General Medical Council as specialists or known to them as qualified or allowed to carry out expert reports.  However, merely by virtue of being doctors they have professional expertise and the tribunal was perfectly entitled to rely on their evidence insofar as it had any relevance to the period under consideration by the tribunal.  In fact the tribunal did not mention the evidence of the second of those examining medical practitioners and there is no reason to suppose that it was accorded any particular weight by the tribunal.  As I have said, it relied on the evidence of the examining medical practitioner who had examined the claimant on 16 September 2003.  

12.	The claimant also complains that the medical report of that examining medical practitioner was flawed because the examining medical practitioner did not read his record of the claimant’s statements back to the claimant, although the claimant signed it to say that he did.  The claimant had objected to the report being before the tribunal and the tribunal said nothing about this issue.  However, his complaint about inaccuracies in the examining medical practitioner’s report was unparticularised and the tribunal can only have taken the view that, given the reluctance of the claimant to provide other medical evidence or to attend a hearing and engage in discussion with a tribunal, his vague assertions were insufficient to cast doubt on the accuracy of the examining medical practitioner’s evidence.

13.	Although the claimant did not make any challenge to the adequacy of the statement of the tribunal’s reasons, I have considered this issue in view of the relative brevity of the reasons and, in particular, have considered whether the tribunal’s reliance on the examining medical practitioner’s report provides a sufficient answer to those points that the claimant had raised before the tribunal to which the statement of reasons does not provide a specific answer.  The tribunal accepted that the claimant was unable to prepare a main meal for himself.  It was on that ground that it agreed with the Secretary of State that he was entitled to the lowest rate of the care component.  The tribunal also dealt adequately with the evidence that the claimant had fallen, which it accepted but found did not show a need for continual supervision throughout the day to avoid substantial danger to anyone.  However, it did not expressly explain why the other disabilities from which the claimant claimed to suffer did not lead to an award of the middle or highest rate of the care component.

14.	For instance, the tribunal failed to deal expressly with the claimant’s assertion that he needed help with dressing and undressing and with cutting up his food at mealtimes.  However, that it is easily explained.  The examining medical practitioner had accepted that the claimant had difficulty with those functions but had nonetheless found that, with effort, he could manage them.  The claimant had not provided any clear refutation of that opinion by, for instance, stating that he was in fact helped by someone with those functions or by stating that the consequence of not receiving such help was that he did not get dressed or undressed at appropriate times or eat appropriately.  In those circumstances, the tribunal was not obliged to say more.  

15.	Nor did the tribunal say anything very specific about the claimant’s occasional loss of control of his bladder, or the effects of his depression and bi-polar disorder, or his asthma, or his hearing loss or the impairment of his upper and lower limb functions that was a result of chronic fatigue syndrome and either carpal tunnel syndrome or arthritis or both.  However, again, the tribunal’s reasoning lies in its acceptance of the examining medical practitioner’s report.  The examining medical practitioner accepted that the claimant had the difficulties he claimed, but only up to a point. The reason that the disabilities did not result in an award of either the middle or the highest rate of the care component is that the consequent difficulties the claimant had were found not to warrant frequent attention or continual supervision during the day or prolonged or repeated attention or watching over at night (see section 72(1)(b) and (c) of the Social Security Contributions and Benefits Act 1992).  For instance, the fact that the tribunal’s statement of reasons does not mention the examining medical practitioner’s finding that the claimant needed help getting in and out of a bath can be explained by the fact that such help could not, by itself or taken with the tribunal’s other findings, show a requirement for frequent attention or continual supervision throughout the day.  The claimant has never provided a convincing case that the conditions of entitlement to the middle or highest rates of the care component were satisfied.  His evidence described how the problems affected him and, less relevantly, how they might have affected sufferers in general but, apart from the fact that some of his evidence was contradicted by the examining medical practitioner whose view was preferred by the tribunal, the evidence has not shown that sufficient attention or supervision to satisfy the conditions for entitlement to the middle or higher rate of the care component is required.  The loss of bladder control was occasional and due only to an inability to reach the toilet in time on those occasions and might, perhaps, have been avoided altogether had the claimant taken appropriate steps such as having a bottle to hand.  There was no medical evidence that the claimant required attention or supervision as a result of his mental health to any relevant extent.  His breathlessness was slight most of the time.  His hearing loss was managed with hearing aids.  His loss of limb functions no doubt made a lot of tasks difficult and take longer but, apart from the help in and out of the bath and with preparing a main meal, it is clear that the examining medical practitioner’s view, adopted by the tribunal, was that the claimant could manage adequately without assistance from another person.

16.	In my judgment, therefore, the reasons for the tribunal’s decision may be adequately discerned from the statement of reasons and the other documents in the case.  It might have been good practice to provide more detailed reasons but it was not an error of law not to do so.

17.	The most serious of the claimant’s grounds of appeal is his allegation that the legally qualified panel member who had struck the appeal out and then reinstated it following my grant of leave to appeal in CDLA/561/2006 sat as the chairman of the tribunal on 23 November 2006 and was biased or that there was at least an appearance of bias.  The history of her dealings with the case may indeed suggest that she had clear views about the merits of the claimant’s case before the hearing.  However, a tribunal chairman is entitled to have views about a case as long as he or she keeps an open mind and is prepared to give proper consideration to new evidence and submissions.  I can see no reason to suppose that such views as the chairman may have had were due to anything other than a rational evaluation of the written evidence, including the unhelpful manner in which the claimant had chosen to conduct his case.  A claimant is not entitled to seek a differently constituted tribunal just because a chairman, whether directly or by implication, has expressed an adverse view about him or his evidence.

18.	The claimant has also complained that the medically qualified panel member sitting on the tribunal was known to him, because he knows a general practitioner with the same surname.  However, the medically qualified panel member has apparently said he did not know the claimant and the coincidence of the surname being the same as that of a doctor who does know the claimant is not an adequate ground for not accepting that assertion.  Moreover, if the medically qualified panel member had in fact known the claimant but had not recognised the case before him as concerning the same person, there would have been no injustice.

19.	The claimant has further submitted that he received insufficient notice of the hearing to enable him to provide further evidence and to arrange the attendance of witnesses, although he did technically receive the statutory notice, and that the tribunal therefore erred in refusing to adjourn the hearing as he had requested.  However, as the chairman said in her record of the proceedings and reasons for the rejection of the claimant’s request for an adjournment, he had had many months in which to provide evidence and, indeed, he had provided hundreds of pages of documents, including almost 500 pages that the tribunal received on the morning of the hearing.  He has not given details of any evidence that he was not able to provide in time or of witnesses who would have wished to attend but were unable to do so due to the length of notice.  This ground of appeal is therefore without merit.  Equally lacking in merit is the claimant’s complaint that he could not have attended the hearing due to lack of transport, when he also states that he did not wish to attend the hearing in any event.  Moreover, the claimant is experienced in social security matters and must have known that, if he would have difficulty attending a hearing at the tribunal’s venue, he could have discussed the matter with the clerk and either arrangements could have been made for his conveyance to the usual venue or else, perhaps, the tribunal could have sat more locally.

20.	Finally, the claimant has further complained that the tribunal did not consider whether deductions were unlawfully being made from his benefit.  However, as the tribunal explained, that issue was not before the tribunal on 23 November 2006.  I do not know whether the claimant had appealed against any of the relevant decisions when they were made but, if so, that appeal was not joined with the present case and will be heard separately if it has not already been heard.

21.	I am satisfied that the tribunal’s decision of 23 November 2006 is not erroneous in point of law.  The chairman could have provided fuller reasons but the way in which the claimant buried his main points under a great deal of unnecessary material did not make her task easy and, at the end of the day, it is possible to work out the tribunal’s answer to those points.  Accordingly, I refuse leave to appeal.

	(signed on the original)	MARK ROWLAND
		Commissioner
		29 May 2007