[2008] UKSSCSC CSDLA_500_2007 (12 March 2008)

THE SOCIAL SECURITY COMMISSIONERS

SOCIAL SECURITY ADMINISTRATION ACT 1992
SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992
SOCIAL SECURITY ACT 1998

Commissioners’ Case Nos CSDLA/500/2007 and CSDLA/524/2007

DECISION OF A TRIBUNAL OF SOCIAL SECURITY COMMISSIONERS

THE CHIEF COMMISSIONER His HONOUR JUDGE GARY HICKINBOTTOM
mR cOMMISSIONER may QC
MR COMMISSIONER ROWLAND

Appellant:	
Respondent/Claimant:	
Tribunal:	
Tribunal Date:	
Tribunal Register No:	

Appellant:	
Respondent/Claimant:	
Tribunal:	 
Tribunal Date:	
Tribunal Register No:	

DECISION OF A TRIBUNAL OF SOCIAL SECURITY COMMISSIONERS

Decision

1.	On file CSDLA/500/2007, we dismiss the appeal.

2.	On file CSDLA/524/2007, we allow the appeal.  We set aside the decision of the Dundee appeal tribunal dated 19 March 2007, and we refer the case to a differently constituted appeal tribunal for determination.

Introduction

3.	These appeals raise important issues concerning the consequences of procedural irregularities, the particular principal question of law in each being whether the failure of the clerk to an appeal tribunal to produce a legible copy of the record of proceedings when one is requested necessarily renders the decision of an appeal tribunal erroneous in point of law merely because it involves a breach of regulation 55 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (1999 SI No 991, as amended: “the 1999 Regulations”) which requires such a record to be made, kept and provided to the parties upon request.  The appellants, relying particularly on the decision of Mr Commissioner Heald QC in CDLA/4110/1997, submitted that it does.  In his written submissions, the Secretary of State opposed the appeal in CSDLA/500/2007, relying particularly on the decision of Mr Commissioner Jacobs in CDLA/1389/1997 that a breach of the duty to produce and retain of record of proceedings “is not of itself and in all circumstances an error of law” but, through a different representative, he supported the appeal in CSDLA/524/2007 simply on the ground that the record of proceedings was illegible.  In those circumstances, the Chief Commissioner directed that these appeals be heard together by a Tribunal of Commissioners to consider the differing approaches of individual Commissioners to this issue, which has plainly been giving rise to difficulties in practice.

4.	At the oral hearing, the appellants were represented by Mr Chris Orr of Glasgow Welfare Rights and the Secretary of State by Mr Jonathan Brodie instructed by the Solicitor to the Advocate General for Scotland.  We are grateful to them both for their helpful submissions.

The Statutory Background

5.	Regulation 55 of the 1999 Regulations provides:

“(1)	A record of the proceedings at an oral hearing, which is sufficient to indicate the evidence taken, shall be made by the chairman, or in the case of an appeal tribunal which has only one member, by that member, in such medium as he may direct.

  (2)	The clerk to the appeal tribunal shall preserve -
	  (a)	the record of proceedings;
	  (b)	the decision notice; and
	  (c)	any statement of reasons for the tribunal’s decision,
for the period specified in paragraph (3).

	(3)	That period is six months from the date of -
	  (a)	the decision made by the appeal tribunal;
	  (b)	any statement of reasons for the tribunal’s decision;
	  (c)	any correction of the decision in accordance with regulation 56;
	  (d)	any refusal to set aside the decision in accordance with regulation 57; or
  		(e)		any determination of an application under regulation 58 for leave to appeal against the decision,
or until the date on which those documents are sent to the office of the Social Security and Child Support Commissioners in connection with an appeal against the decision or an application to a Commissioner for leave to appeal, if that occurs within six months.

(4)	Any party to the proceedings may within the time specified in paragraph (3) apply in writing for a copy of the record of proceedings and a copy shall be supplied to him.”

6.	The words “which is sufficient to indicate the evidence taken” in paragraph (1) are not words of limitation, but rather provide for one specific essential requirement for an adequate record of proceedings.  As Mr Brodie submitted, the natural meaning of a record of “the proceedings at an oral hearing” is a record of what happened and therefore it should include (e.g.) a record of any procedural application such as an application for an adjournment including the result of any application.

7.	However, Mr Brodie submitted that there was no need for the record of proceedings to include a record of submissions made, as opposed to evidence given.  Given the informality of proceedings and the fact that many claimants represent themselves, we doubt that chairmen generally draw a rigid distinction between submissions and evidence when taking a note: and, although it is likely to be much less important than a note of evidence, we are not convinced that a note sufficient to indicate the submissions made is not required as a matter of principle in some cases.

8.	The reason for this is that one, although not the only, purpose of a record of proceedings is to assist the parties, their representatives and the Commissioner in the event of an appeal against a decision of a tribunal.  Under section 14 of the Social Security Act 1998, such an appeal lies only on a point of law.  In relation to points of law, in R(I) 2/06 the Tribunal of Commissioners adopted the summary and observations of Brooke LJ in R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982:

“It may be convenient to give a brief summary of the points of law that will most frequently be encountered in practice: 

(i)	Making perverse or irrational findings on a matter or matters that were material to the outcome (“material matters”);
(ii)	Failing to give reasons or any adequate reasons for findings on material matters;
(iii)	Failing to take into account and/or resolve conflicts of fact or opinion on material matters;
(iv)	Giving weight to immaterial matters;
(v)	Making a material misdirection of law on any material matter;
(vi)	Committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of the proceedings;
(vii)	Making a mistake as to a material fact which could be established by objective and uncontentious evidence, where the appellant and/or his advisers were not responsible for the mistake, and where unfairness resulted from the fact that a mistake was made.

Each of these grounds for detecting an error of law contains the word “material” (or “immaterial”). Errors of law of which it can be said that they would have made no difference to the outcome do not matter.”

9.	Therefore, a record of proceedings may be important when there is an appeal because (for example) it may confirm a claim that there was a procedural irregularity at a hearing or because it is necessary to know what evidence was before the tribunal including the oral evidence given at a hearing.  The question whether adequate reasons have been given by a tribunal may also depend on the submissions made to the tribunal.  In a well known passage in South Bucks District Council v Porter (No 2) [2004] UKHL 33, [2004] 1 WLR 1953 at [36], Lord Brown of Eaton-under-Heywood said:

“The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the ‘principal important controversial issues’, disclosing how any issue of law or fact was resolved.  Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision.  The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn.  The reasons need refer only to the main issues in the dispute, not to every material consideration.  They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications.  Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced.  A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”

10.	Those comments were made in the context of planning decisions, but they apply equally to social security cases.  Identifying “the principal important controversial issues” may depend on the submissions that were made as well as the evidence that was given.  Most submissions will of course have been advanced in the written representations before any hearing.  However, where new submissions arise during the course of a hearing, it is good practice for the record of proceedings to include a brief note of them as well as a note of evidence, which might remind the chairman to deal with the point in the statement of reasons or might support a later claim that the point was raised at the hearing but not covered by the reasons.

Case law

11.	There were provisions requiring tribunal chairmen to keep records of proceedings long before regulation 55 came into force and, as we have indicated, there have been differing views among Commissioners as to the effect of there being no record of proceedings.

12.	In CDLA/4110/1997, the claimant was sent a photocopy of the chairman’s manuscript record of proceedings but wrote to the clerk to say that it was illegible and to ask for a typed copy.  The clerk replied, rather unhelpfully:

“The current Regulations require me to make accessible to you a copy of the record of proceedings made by the tribunal chairman.  I have complied with these Regulations and regret that it is neither possible nor proper for me to seek to interpret, clarify, or otherwise to comment on that record.”

As Mr Commissioner Heald QC observed when the appeal came before him, there was no indication upon what authority those statements were made or whether the chairman had ever been informed of the request made for a legible version of the record.  

13.	The adjudication officer agreed with the claimant that the copy of the record of proceedings was illegible, and supported the appeal on that ground amongst others.  The Commissioner accepted the parties’ submissions that the copy of the record of proceedings was illegible and he said:

“A record must mean a written, or typed, document, produced for the purpose of enabling other people, whether on appeal or otherwise, to understand what happened on the hearing of the appeal.  To suggest that to produce a document in illegible manuscript complies with the obligations laid down by the Regulations shows, I regret to state, a serious lack of judicial understanding, and even of common good sense.”

14.	That passage has not been challenged on this appeal and it is plainly right, although it perhaps needs some qualification because regulation 55 permits a record to be in a medium other than a written or typed document.  The important point is that, whatever the medium might be, the record must be intelligible or capable of being made intelligible to those to whom it is issued.  The obvious remedy where a record of proceedings is illegible is to ask the clerk to obtain and supply a legible version, which is what the claimant tried to do in CDLA/4110/1997.

15.	The case is only controversial because Mr Commissioner Heald QC continued after the passage quoted above:

“In those circumstances I do not find it necessary to deal with the other grounds of appeal raised by both parties.”

He therefore appears to have regarded the mere failure to produce an intelligible record of proceedings as being in itself a sufficient ground for allowing the claimant’s appeal.  In CIB/3013/1997 and CA/3479/2000, Mr Commissioner Angus appears to have taken a similar approach (although in each of those cases he in fact allowed the claimants’ appeals on other grounds).  

16.	There is however another strand of authority that suggests that the absence of a legible record of proceedings is not necessarily fatal to resultant decision.  In CSSB/212/1987 and CDLA/16902/1996, Commissioners accepted that there could be cases where the lack of a record of proceedings was immaterial and, in CIB/867/1997, whilst not expressly disagreeing with the approach of CDLA/4110/1997 and CIB/3013/1997, Mr Commissioner Pacey referred to the difficulty in deciding whether a tribunal had dealt adequately with a case if there was no record of proceedings.  In CDLA/1389/1997, Mr Commissioner Jacobs analysed the position more fully:

“… a failure to comply with [a predecessor of regulation 55] will be an error of law if in a particular case it is necessary to have regard to the evidence given at the hearing or to any contention put forward at the hearing in order to decide if the case falls within any of the recognised heads of error of law.  The lack of any, or an adequate, record of proceedings is not in itself and in all circumstances an error of law.  The absence of, or deficiency in, the notes of proceedings is not a separate head of error of law.  However, it is subsidiary to, and protective and supportive of, the recognised heads of error of law in that it will be an error of law if it prevents a Commissioner from deciding whether a particular error of law has been shown.”

17.	In CSDLA/364/1999, whilst Mr Commissioner May QC took a slightly different approach, it was to the same overall effect.  He said (at paragraphs 10-11)

“10.	I accept that failure to keep or supply a record of proceedings may be a breach of a statutory duty but that does not inevitably have the consequence that the tribunal decision errs in law.  I do not accept Mr Orr’s submission that the claimant is entitled to get a note of the evidence so that he can examine it to see whether there is an error of law.  The claimant, and if he has one his representative, will be present at the hearing and accordingly will be in a position to know whether or not the content of the statement of material facts and reasons in the context of the decision gives rise to a potential error of law on the part of the tribunal.  In particular he can take a view as to whether in his opinion the findings of fact are founded on the evidence which was given before the tribunal and accepted by them.  This is sufficient to focus any appeal to the Commissioner he may wish to take.  I do not consider that the statutory provision is designed so that a claimant can obtain the record of proceedings subject it to extensive examination upon receipt to see whether or not he can find an error in law in respect of what has been said by the tribunal in the statement of facts and reasons.

11.	If the Commissioner is disabled from properly determining the merits of the appeal in the context of the grounds of appeal and the statements of facts and reasons by virtue of a failure to keep or supply a record of proceedings then this factor might contribute to an error in law being established on the part of the tribunal.”

18.	The general approach suggested in CDLA/1389/1997 and CSDLA/364/1999 has been followed by, among others, Mr Deputy Commissioner Wright QC in CSIB/390/2000 and Mr Commissioner Mesher in CDLA/3694/2002.

The Parties’ Submissions

19.	In the cases before us, there was a good deal of common ground between Mr Orr and Mr Brodie.  

20.	Plainly a failure by the chairman to make a record of proceedings or a failure by a clerk to a produce a statement of reasons when one is requested by a party is a breach of regulation 55 of the 1999 Regulations.  However, what are the consequences of such a breach?  Mr Brodie drew our attention to the line of cases originating in London & Clydeside Estates Ltd v Aberdeen District Council 1980 SC (HL) 1, [1980] 1 WLR 182 and extending to R v Soneji [2005] UKHL 49, [2006] 1 AC 340 (which has recently been considered in R v Clarke [2008] UKHL 8, [2008] 1 WLR 338) in which it was held that the effect of non-compliance with procedural requirements depends on what, as a matter of statutory construction, it can be said Parliament intended the consequence of the non-compliance to be.  Mr Orr agreed that that was the relevant question in relation to a failure to provide a record of proceedings in breach of regulation 55.  However, he and Mr Brodie differed as to what the Parliamentary intention (as expressed in the words of the relevant provisions of the regulatory scheme) was.

21.	Mr Orr submitted, first, that justice required that the duty to keep a record of proceedings and to supply a copy on request should be enforced in all cases, because a failure to do so would leave unrepresented claimants at a considerable disadvantage as they might not appreciate the need to keep notes of what they said at the hearing and even representatives might not recall quite what they had said so that, if that were material, the claimant might be denied justice.  Secondly, he submitted that a lack of a record of proceedings would prevent clearly material irregularities from being brought to the attention of the parties.  Examples he gave were a failure to record the reasons for dissent when a tribunal’s decision was not unanimous and the admission into the deliberations of a tribunal of someone who ought not to have been present.  He submitted that it must be taken that Parliament intended that non-compliance with regulation 55 be inevitably fatal to the proceedings, any decision in such a case being erroneous in point of law and therefore liable to be set aside on appeal or by a tribunal chairman under section 13 of the 1998 Act.  

22.	Mr Brodie, on the other hand, generally supported the approach of Mr Commissioner Jacobs in CDLA/1389/1997.  However, he emphasised the possibility of obtaining evidence about what happened at a hearing from other sources than the record.  He submitted that, where there had been non-compliance with regulation 55, the test was whether, in the light of all other available information and evidence, a party is prevented from substantiating an error of law on the part of the tribunal by virtue of the absence of the written record.  In reply to Mr Orr’s second submission, he submitted that a record of proceedings should be a record of what happened in the open part of a hearing and need not include any record of deliberations or events occurring after the parties had withdrawn from the hearing room.

Discussion

23.	We do not accept Mr Orr’s submissions.  

24.	In relation to his first submission, we accept that unrepresented parties and inexperienced representatives may not keep a full note of a hearing but, even if that be the case, it is open to the Commissioner to accept a party’s recollection as to what happened at the hearing and, if a person cannot remember, the Commissioner may be prepared to issue a direction to the tribunal (see paragraph 28 below) and accept the results of that direction or otherwise to accept that the case the party now wishes to put before the Commissioner was put before the tribunal.  Even if a Commissioner is unable to accept an appellant’s version of what happened at the hearing, where there is insufficient evidence positively to reject it then the absence of a record may prejudice the fairness and justice of the proceedings before the tribunal with the result that the appeal will be allowed.  However, justice does not require an appeal to be allowed where the lack of a record of proceedings is immaterial.  Indeed, it would be repugnant to justice (and, with respect to Mr Orr’s submission to the contrary, cannot have been the intention of Parliament) to require a tribunal decision to be overturned simply because of a lack of record of proceedings in circumstances in which that deficit was immaterial to the decision.  In respect of errors of law, we refer again to the crucial element of materiality stressed in R (Iran) v Secretary of State for the Home Department and R(I) 2/06 (see paragraph 8 above), and particularly the error of law identified in head (vi) of the categorisation, namely “a procedural or other irregularity capable of making a material difference to the outcome or the fairness of the proceedings” (emphasis added).
 
25.	We do not accept Mr Orr’s argument that, where there is no record of proceedings, then this is always material because of the interrogatory nature of proceedings before the Commissioners.  We accept that there are occasional cases where a Commissioner will, as a result of reading a record of proceedings, identify and himself raise an error of law in a tribunal’s decision that has not been relied upon by a claimant, particularly where that claimant is unrepresented, and obviously that cannot happen if there is no record of proceedings to consider.  However, we do not agree that that is sufficient to show that Parliament intended the consequence of any breach of regulation 55 to render a tribunal’s decision erroneous in point of law.  Ultimately, it is for appellants or those applying for leave to appeal to make there own cases and a Commissioner is not obliged to trawl through the papers looking for grounds of appeal that have not been advanced (see Mooney v The Secretary of State for Work and Pensions 2004 SLT 1141 (also reported as R(DLA) 5/04)).

26.	As to Mr Orr’s second point, we agree with Mr Brodie.  Although chairmen may well keep a note of a tribunal’s deliberations as an aide memoire in the event of a request for a statement of reasons for a tribunal’s decision, such a note does not fall within the scope of the record of proceedings required by regulation 55.  There is a duty to make a record of proceedings only if there is an oral hearing and we consider it clear beyond argument that the duty does not extend to making a note of private deliberations which are a feature of paper hearings as much as oral hearings.  (Where there is a determination on the papers, chairmen routinely record on a document entitled “record of proceedings” that they have checked that a paper hearing has been requested, but the requirement to make such a record is not imposed by regulation 55.)

27.	For these reasons, we are satisfied that Parliament cannot have intended that all breaches of regulation 55, whatever their materiality, should render appeal proceedings defective such that a tribunal’s decision is necessarily erroneous in point of law on that ground alone.  We would stress that to make, preserve and upon request produce a record of proceedings is a regulatory requirement: chairmen and administrators charged with making, keeping and producing records should appreciate both the mandatory nature of regulation 55 obligations and their practical importance.  However, where there is no record of proceedings, that is not necessarily fatal to the integrity of the appeal proceedings.  On an appeal to disturb a decision, an appellant must show that the failure to comply with regulation 55 was material to the decision in the sense that it has resulted in a real possibility of unfairness or injustice.  Insofar as they suggest otherwise, CDLA/4110/1997, CIB/3013/1997 and CA/3479/2000 should no longer be followed.
  
28.	As Mr Brodie submitted, whether a lack of record results in such unfairness or injustice in a particular case may turn on the extent to which that deficiency can be made good, for example by the Commissioner obtaining evidence as to what happened at the hearing from the parties or from the tribunal by way of a direction under regulation 20(2) of the Social Security Commissioners (Procedure) Regulations 1999 (SI 1999 No 1495).  However, any such steps should be proportionate and some social security cases simply will not justify a detailed investigation into what happened during a contested appeal because such an investigation would be potentially more onerous than having a rehearing.  In such cases, without instigating such an investigation, a Commissioner should not be slow to find that the failure to comply with regulation 55 was “a procedural or other irregularity capable of making a material difference to… the fairness of the proceedings” and therefore the tribunal’s decision was erroneous in point of law.    

29.	Whether the absence of a record of proceedings results in a real possibility of unfairness or injustice of course depends upon the circumstances of any particular case; and we now turn to the specific circumstances of the appeals before us.

CSDLA/500/2007

30.	In this case, the record of proceedings had already been lost when the chairman came to write the statement of reasons, but she relied on other notes she had - possibly made during the tribunal’s deliberations - and she included in the statement of reasons an indication of the evidence given at the hearing (particularly that upon which the tribunal relied) and of Mr Orr’s submissions.  Mr Orr has not suggested that there was any other material evidence.  

31.	He did say that the statement of reasons did not show that he (Mr Orr) had relied heavily on the evidence of Dr Goldie (a general practitioner) and had suggested that that showed that the claimant was in severe pain, or that he had pointed to an inconsistency between the evidence of Dr Lindsay (another general practitioner) and that of Dr Crupples (an examining medical practitioner).  We accept that Mr Orr made those submissions - it would have been surprising if he had not - and the absence of a record of proceedings is therefore not detrimental to any argument that submissions were made and not properly dealt with by the tribunal in its reasons.  We deal with the substance of this criticism below (paragraphs 33 and following).  

32.	For these reasons, we consider that no unfairness has resulted from the inability of the clerk to the appeal tribunal to supply a copy of the record of proceedings in this case.  

33.	However, Mr Orr raised an alternative ground in this case, namely that the reasons given by the tribunal were inadequate.  

34.	In relation to the claimant’s conditions and disability, there was evidence from a number of medical practitioners.  Dr Goldie (the claimant’s general practitioner) said that the claimant had been suffering from two disabling conditions, which he identified as coccygodynia and mechanical back pain.  He described the former as “severe” and the latter as “moderate”, and he said that the claimant’s ability to get around was “limited due to pain”.  Dr Lindsay (of the same medical practice) wrote two days before the tribunal hearing to the effect that the claimant “needs assistance with activities of daily living due to her chronic pain” and “has become depressed due to her chronic pain”, and that he had prescribed an antidepressent and referred her back to the pain clinic.  Dr Crupples (the examining medical practitioner) considered that the claimant was “physically capable of walking 500 to 600 yards on the flat” before the onset of severe discomfort, slowly but without a halt, although she had constant pain in her back.  

35.	The tribunal’s findings of fact in the statement of reasons include (at paragraph 8):

“As at the date of decision under appeal, the Appellant suffered from coccygodinia, mechanical back pain and depression.  She had injured her coccyx in a fall in 2003.  She had been seen at an orthopaedic clinic for a year and treated with steroid injections without material benefit.  In 2004 her coccyx had been surgically removed.  She continued to suffer severe pain at the site of the injury.  She also suffered moderate mechanical back pain.  She took prescribed painkillers and used a TENS machine to alleviate her physical symptoms.  Her pain was chronic and there was little variability in the same.  Her mobility was substantially limited as a result of pain from that which she had previously enjoyed.  She did little walking out of doors.  When mobilising she sometimes used crutches and sometimes used no walking aid.  The clinical findings contained within Dr Crupples’ report at pages 60 to 64 of the Tribunal papers are accepted and adopted as part of the Tribunal’s own findings of fact.  She was normally capable should she so have wished to walk slowly at the rate of around 60 metres per minute with no halts for around 500 to 600 yards on level ground out of doors with a slow short step gait and good balance with or without the aid of crutches or a walking stick without severe discomfort.  She was not unable or virtually unable to walk.”

36.	The chairman then recorded extensive reasons for those findings.  The tribunal had found that “the Appellant’s evidence was sharply divergent from that of Dr Crupples”.  It rejected Mr Orr’s submission that the claimant’s evidence should be preferred, because it considered that Dr Crupples’ evidence was credible and that the claimant was “significantly exaggerating the effect of her physical disablement upon her function”, and it gave reasons for that conclusion including the following:

“The Tribunal did not find Dr Crupples’ evidence inconsistent with the evidence of Drs Goldie and Lindsay.  Both had recorded the Appellant as suffering from chronic back pain which the Tribunal accepted.  Both also recorded that this affected her activities of daily living, Dr Lindsay recording that she needed assistance with the same.  However, given that neither GP was likely to have observed the Appellant at home with such activities it was likely that their evidence was based on the Appellant’s own evidence which the Tribunal had found exaggerated. … Dr Goldie had recorded that the Appellant’s ability to get around was ‘limited due to pain’ but the Tribunal found on balance that disability was more likely to be limited as estimated by Dr Crupples and as reflected in the Findings of Fact than the Appellant’s own claim of extremely limited mobility.”

37.	Mr Orr submitted that the tribunal’s reasoning was internally inconsistent.  There were three strands to this submission.  

38.	The first arose because the tribunal had found the claimant to suffer “severe pain” as a result of coccygodynia, but it had also found the claimant to be able to walk a substantial distance before the onset of severe discomfort largely on the ground that the claimant’s evidence was unreliable.  We are not persuaded that there is any inconsistency.  We accept that Dr Goldie had not actually said that the claimant suffered severe pain as a result of coccygodynia and had merely said that the “condition” was severe, but it seems fairly clear that the tribunal’s finding was based on Dr Goldie’s evidence and it was not unreasonable to assume in this context that the condition was described as severe because Dr Goldie considered that it produced severe pain.  On the other hand, the word “severe” does not have an exact meaning and Dr Goldie did not attempt to indicate to what extent the claimant’s walking was limited and would in any event have been largely dependent on the claimant for information.  In those circumstances, having considered all the other evidence, the tribunal was entitled to conclude that the claimant’s walking ability was as great as Dr Crupples believed it to be and that Dr Goldie’s evidence was not necessarily inconsistent with that view.  

39.	The second strand of Mr Orr’s argument arose because Dr Lindsay had said that the claimant needed assistance with activities of daily living but the tribunal did not regard its findings as inconsistent with his evidence.  However, Dr Lindsay had not specified which activities he had in mind and, reading the statement of reasons as a whole, it is clear that what was meant was that the tribunal agreed with Dr Lindsay that the claimant was suffering from substantial disablement but that it did not accept that the claimant required assistance to the extent that might qualify her for disability living allowance.  To the extent that Dr Lindsay might have thought otherwise, the tribunal took the view that it did because Dr Lindsay’s opinion appeared likely to have been based on the claimant’s own (unreliable) account.

40.	The third matter to which Mr Orr referred was that the tribunal accepted Dr Crupples’ opinion at the beginning of the statement of reasons but then, towards the end, rejected his finding that the claimant required some assistance with dressing the lower half of her body.  However, what the tribunal accepted were Dr Crupples’ clinical findings at pages 60 to 64 of the bundle and, while most of the other findings in the report naturally followed from them, there was no real inconsistency in the tribunal rejecting the specific opinion expressed on page 69 for the reasons it gave.

41.	In our judgment, the statement of reasons recorded by the chairman in this case was more than adequate.  Read as a whole, it is perfectly rational and cogent.  We reject Mr Orr’s submission that the tribunal’s decision was erroneous in point of law on this ground.

42.	For these reasons, we dismiss the appeal.

CSDLA/524/2007

43.	Mr Brodie resiled from the Secretary of State’s support for Mr Orr’s first ground of appeal, namely that the tribunal’s decision was erroneous in point of law simply because the record of proceedings was illegible.  For the reasons we have given, we reject that ground of appeal.

44.	However, Mr Brodie supported the appeal on an alternative ground relied upon by Mr Orr, namely that the statement of reasons for the tribunal’s decision was inadequate.  We accept that that concession was properly made.  In short, in the face of written evidence from the claimant and her husband that she could not walk for more than 30-40 metres without developing severe discomfort, the tribunal found that she could walk 100-200 yards.  The reasons do not explain the evidential basis of this finding and an explanation cannot be found in the documents that were before the tribunal or, of course, the illegible record of proceedings.  We consider it is now too late to require the tribunal chairman to provide a legible transcript of the record of proceedings.  We allow the claimant’s appeal on that ground.

45.	This makes it unnecessary for us to consider a third ground relied upon by Mr Orr, which was that the tribunal’s decision was erroneous in point of law because there was a four-month delay between the request for a statement of reasons and its delivery.  However, we observe that R(IS) 5/04 appears to be consistent with the more recent decision of the Court of Appeal in Bangs v Connex South Eastern Limited [2005] EWCA Civ 14, where, at paragraph 43, Mummery LJ (effectively delivering the judgment of the Court) considered the relevance of delay where an appeal is confined to a point of law, and laid down the following, among other, principles:

“(2) 	No question of law arises from the decision itself just because it was not promulgated within a reasonable time. Unreasonable delay is a matter of fact, not a question of law.  It does not in itself constitute an independent ground of appeal. Unreasonable delay may result in a breach of article 6 [of the European Convention on Human Rights] and possibly give rise to state liability to pay compensation to the victim of the delay, but it does not in itself give rise to a question of law, which would found an appeal challenging the correctness of the delayed decision and for obtaining an order reversing the delayed decision or for a re-trial. I agree with the appeal tribunal (paragraph 12) that in cases of delayed decisions 

‘… it cannot be just that there should be an automatic sanction of a re-hearing, because, quite apart from the adventitious loss to one or the other party of a result in his or her favour, that will only compound the problem, in leading to yet further delay and to the risk of yet further dimming of recollections.’

(3)	No question of law arises and no independent ground of appeal exists simply because, by virtue of material factual errors and omissions resulting from delay, the decision is ‘unsafe’.  A challenge to the tribunal’s findings of fact is not, in the absence of perversity …, a valid round of appeal and there is no jurisdiction under s21(1) of the [Employment Tribunals Act 1996, providing for an appeal limited to points of law] to entertain it.

….

(7) 	There may, however, be exceptional cases in which unreasonable delay by the tribunal in promulgating its decision can properly be treated as a serious procedural error or material irregularity giving rise to a question of law in the ‘proceedings before the tribunal’.  That would fall within s21(1), which is not confined to questions of law to be found in the substantive decision itself.  Such a case could occur if the appellant established that the failure to promulgate the decision within a reasonable time gave rise to a real risk that, due to the delayed decision, the party complaining was deprived of the substance of his right to a fair trial under article 6(1).”

These principles were set out in the context of employment tribunals, and how they fall to be particularly applied in social security cases is a matter we need not consider in this case.  Suffice it here to say that, as principles, we consider they are equally applicable in the field of social security.  Moreover, with regard to procedural irregularities, we note the apparent consistency of approach between these principles regarding delay and the principles we have relied upon in respect of a tribunal’s failure to satisfy a requirement to keep, maintain and produce a record of proceedings: both focus on materiality.  

46.	For these reasons, we allow the appeal.  It is not possible for us to substitute our own decision and we therefore set aside the decision of the Dundee appeal tribunal dated 19 March 2007 and we refer the case to a differently constituted appeal tribunal for determination.

        

 His Honour Judge Gary Hickinbottom
		 Chief Commissioner
(Signed on original)

Douglas May QC
Commissioner
(Signed on original)

Mark Rowland
Commissioner
(Signed on original)

12 March 2008