[2007] UKSSCSC CSDLA_463_2007 (25 October 2007)

DECISION OF SOCIAL SECURITY COMMISSIONER

1.	My decision is that the decision of the tribunal given at Glasgow on 6 June 2007 is not erroneous upon a point of law.  The appeal fails.  I dismiss it.

2.	The claimant has appealed to the Commissioner against the decision of the tribunal which is recorded at page 86 and is corrected in relation to the date of commencement in the third and fourth paragraphs of the statement of reasons.  No issue in relation to that correction is taken by the claimant.  The grounds of appeal are related to two matters.  They are that the tribunal have given insufficient reasons for rejecting the conclusions of the reports of the orthopaedic surgeons at pages 46 and 77.  They are also asserted to err in law upon the basis that the tribunal placed substantial importance upon its observations of the hearing and draw adverse inferences from them without putting them to the claimant.  

3.	The Secretary of State does not support the appeal.  

4.	In respect of the first ground of appeal, the Secretary of State makes reference to the evidence referred to in the grounds of appeal and says:

	“6. ……
This evidence was acknowledged by the tribunal in paragraph 10 of its Statement of Reasons.  Notwithstanding this report, however, it was felt by the tribunal that the claimant was exaggerating her problems as it was her opinion that she could not hold a knife at all.  The tribunal had already questioned the claimant’s credibility earlier in its statement when dealing with her alleged dizzy spells and falls.  It was also unimpressed by the claimant’s comments on the evidence of the consultant psychiatrist (pages 70-73).  Although much-disputed by the claimant, this evidence, which directly relates to a conversation with her, revealed that she was able to “make her meals independently” and that “She plans her meals and monitors them without difficulty”.  In her oral evidence the claimant stated she could not cut anything with her right hand, although, when she demonstrated the problems she had, the tribunal noted that “The appellant’s right arm moved easily, as did her right hand.  She appeared to be able to grip without difficulty.”  It would appear that this observation was put to the claimant (page 83).  It should also be noted that the tribunal was aware that the claimant failed to finish her physiotherapy course and did not attend her appointments at the orthopaedic out-patients clinic.  The medical report from Medical Services (paged 48-52) indicates no significant self-care problems despite a stiff right finger.  Therefore, the tribunal was being asked to believe whether it is conceivable that, given the evidence, the claimant was able to do so little with her right hand, one on which the three main fingers required for gripping remained fully functioning.  The tribunal did not believe so concluding that the claimant was exaggerating the effect of her condition.”

5.	In respect of the second ground of appeal, the Secretary of State said:

	“7.	However, by using as evidence an incident whereby the claimant was able to retrieve a mobile phone from her bag and proceed to use it in her right hand without any apparent difficulty, the tribunal, by reporting the matter but not putting its observations to the claimant, has erred in law.  CSDLA/288/2005, a copy of which has already been provided by the claimant (pages 103-105), is unequivocal on such a point.  Nevertheless, the onus of proof is still on the claimant to justify her alleged needs, and, I submit, that even without such evidence mentioned above, the tribunal has provided sufficient reasons to support its decision.  Some of the medical evidence suggests impairment but is still not conclusive and there is the report from the psychiatrist which undermines the claimant’s argument considerably.  This evidence, coupled with the conflicting statements given by the claimant, has lead the tribunal to conclude that on the balance of probabilities the claimant’s case is not proved.

	8.	I submit, therefore, that although the tribunal has erred in law by presenting a piece of evidence that in the circumstances should not have been admitted, it did, in my opinion, still reach a decision that it was entitled to reach and has given adequate reasons for it.”

6.	The response to that submission by the claimant’s representative was as follows:

“At paragraph 7 of his submission the Secretary of State accepts that following CSDLA/288/2005 the decision of the tribunal is in error of law.  However he goes on to suggest that the effects of that error are capable of being mitigated and the outcome decision capable of being sustained.

The Commissioner, in paragraph 5 of that same case deals with that point:-

“…..a claimant must be guaranteed a fair hearing, so that starting over again is inevitable, even if there is no irrational assessment of the evidence and the tribunal’s determination is adequately explained.”

Quite apart from my view that paragraph 6 of the Secretary of State’s submission does not persuade me that the position adopted in the first paragraph of my submission dated 7/8/07 is wrong, the above view from the Commissioner seems conclusive of the issue.”

7.	It is quite apparent when the tribunal’s reasoning is read as a whole that the tribunal did not find the claimant to be a credible witness.  They set out a very clear and specific basis for this view which went way beyond their own observations.  The tribunal, in reaching their view on the evidence as a whole, had proper regard to the evidence of both Mr Hemms, in his report, at pages 44-47 and Mr Shaw at pages 75 to 77.  The tribunal did not reject the evidence of these consultants.  Their conclusions were based on their assessment of the evidence as a whole.  Accordingly, in respect of this first ground of appeal, I accept the submission of the Secretary of State at paragraph 6.  I am satisfied that no error in law has been demonstrated in respect of this ground.

8.	In relation to the second ground of appeal, it is important to see what the tribunal themselves said about their own observations.  They said:

	“Towards the end of the hearing the appellant’s mobile phone rang.

The appellant opened her handbag by the zip, quickly, took the mobile phone out with her right hand and manipulated it easily.  It was specifically noted that her right little finger bent when she took out her mobile phone.  She then put her handbag into a larger bag, again with her right hand.  During the whole of this process there was no indication whatsoever that the appellant had any difficulties with using her right hand.”

9.	It is said by both parties that the failure of the tribunal to put these observations to the claimant rendered their decision erroneous in law, though the position of the Secretary of State was that this error was not sufficient to justify setting the decision aside.  Both based the assertion of error in law in relation to what was said by Mrs Commissioner Parker in CSDLA/288/2005.  What she said was:

	“4.	Several Commissioners now have commented on the basic requirement to put observations to the party affected on an ability demonstrated during a tribunal hearing.  For example, Mrs Commissioner Jupp said at paragraph 9 of CIB/3397/2004, signed only on 18 April 2005, that:

	“At the outset of the hearing I confirmed that I found nothing controversial in the submissions of both parties in their skeleton arguments that the tribunal erred both in failing to provide adequate reasons … and in not putting it to the claimant that the tribunal’s observations of her ability to sit during the tribunal hearing brought into question her contention for the benefit of the sitting descriptor.  On those two points alone therefore I proposed to set aside the decision and remit the case for determination by a differently constituted tribunal, as I have done.” (my emphasis)

5.	This tribunal provided a clear and cogent statement, having regard to the evidence, and it is a waste of resources that the appeal has to be re-heard.  However, a claimant must be guaranteed a fair hearing, so that starting over again is inevitable, even if there is no irrational assessment of the evidence and the tribunal’s determination is adequately explained.  Moreover, there is usually no excuse not to put observations to a party, as it can rarely be the case that a perceived inconsistency between a claimant’s evidence and what is being observed does not strike any or all of the tribunal members at the time, so that it is not apparent why it is raised for the first time at the deliberations.  If it is a member other than the Chairman who is struck by an inconsistency between a claimant’s observed behaviour and a description of the relevant capabilities, and another member is questioning at the time, then a written note to the Chairman seems the obvious answer, so that the chance is not lost to give a claimant the appropriate opportunity to provide an explanation, if wished.  If the observation is of the claimant as she leaves, there is no alternative but briefly to re-convene.”

The claimant’s position in response to the Secretary of State’s submission relies upon that authority for the proposition that, by not putting the observations the claimant not having a fair hearing and as a result, the Secretary of State’s submission that the tribunal’s decision should not be set aside, is unsound.

10.	It is not asserted in the grounds of appeal that the tribunal were not entitled to observe the claimant.  It is settled that they can do so.  I refer to a decision of Mr Commissioner Skinner where he says in paragraph 5 of R(DLA)1/95:

“It does not seem to me that the tribunal were in breach of the prohibition contained in the section.  I have considered whether the reliance by the members of the tribunal on their own observation of the claimant may be objectionable on other grounds.  It seems to me that a tribunal are entitled to have regard to what they see provided that the weight to be accorded it is considered carefully.  Disability appeal tribunals are not bound by the technical rules relating to admissibility of evidence and the answer depends on the weight to be attached to such observation.  I remind myself of the words used by Birch J in R. v. Madhub Chunder [1874] 21 WRCR 13 at page 19.  “For weighing evidence and drawing inferences from it, there can be no cannon.  Each case presents its own peculiarities and in each commonsense and shrewdness must be brought to bear upon the facts elicited.  If the tribunal were to rely on its own observation alone, where such observation was contrary to the medical evidence, then it seems to me that the weight would be negligible.  However in the case before me the tribunal’s observation was but one of the factors which brought them to the conclusion that the claimant did not satisfy the conditions for the mobility component.”

11.	It is not suggested by Mr Commissioner Skinner that observations made by the tribunal require to be put to a claimant.  In my view, not doing so, does not of necessity render a decision of the tribunal erroneous in law.  In assessing evidence, an important element is observation of the demeanour of the witness.  That will also include observation of physical capacity.  The tribunal’s observations are not of the nature of giving evidence to themselves but are part of the judicial process in assessing the evidence which is put before them.  I cannot, in these circumstances, conceive that a tribunal is bound to put to a claimant in an appeal before them their thoughts in that process.  I am fortified in that regard by what was said by Mrs Commissioner Brown in C2/99(1B) where she said:

“I specifically do not conclude that there was any violation of the rules of natural justice in the Tribunal using its ocular observations as one of the methods of assessing the evidence already before it without specifically asking for comment on its ocular observations.  The Tribunal was not itself providing evidence.  Its duty was to adjudicate on the evidence before it but it was entitled to use its own observations in so doing.”

She went on to say:

	“24.	It appears to me also perfectly clear that the Tribunal’s own observations were but one of the factors which brought it to the conclusion which it reached.  The fact that the observation was so specific in terms of one of the descriptors does not mean that observation was qualitatively altered into evidence.  It merely means that the observation pointed particularly sharply to the weight to be given to the evidence before it.”

The tribunal must take care not to be seen to cross-examine a witness for that is not their function.  What the tribunal saw in this case in relation to the claimant’s capacity to open her handbag and take out her mobile phone, was material to the assessment of the evidence which they required to carry out for the purposes of making their findings in fact.  

12.	Their use of their own observations and the weight they attached to them seem to me to be within the parameters set out in R(DLA)1/95.  It was not the case here that they relied upon their own observations only.  I refer in particular to paragraphs 5, 7, 9, 10 and 11 of the reasons.  It follows in these circumstances that I do not accept what is said by Mrs Commissioner Parker in CSDLA 1288/2005 and the case cited therein.  That decision did not, it appears to me, analyse what the tribunal were actually doing when relying upon their own observations.  

13.	It is also to be noted that the grounds of appeal nowhere assert that the claimant did not carry out the actions observed by the tribunal in the manner in which the tribunal observed.  If the claimant is not seeking to deny the observations that were made, it is difficult to see how a failure to put the observation can be regarded as unfair to her and provide the foundation for an assertion that she did not receive a fair hearing.  On that basis her appeal would be bound to fail in any event.  It further seems to me that there were ample other reasons for rejecting the claimant’s evidence as contained in the statement of reasons.  Accordingly, I am inclined to accept the submission of the Secretary of State that, even if there were an error in law, which I do not accept, the effect is not sufficient, having regard to the tribunal’s statement as a whole in relation to their evaluation of evidence to set the decision aside.

14.	The appeal fails.

					(Signed)
					D J MAY QC
					Commissioner
					Date:  25 October 2007