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Cite as: [2016] NICom 61

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    SB-v-Department for Communities (DLA) [2016] NICom 61

     

    Decision No: C3/16-17(DLA)

     

     

     

     

    SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

     

    SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

     

     

    DISABILITY LIVING ALLOWANCE

     

     

    Application by the claimant for leave to appeal

    and appeal to a Social Security Commissioner

    on a question of law from a Tribunal's decision

    dated 17 April 2015

     

     

    DECISION OF THE SOCIAL SECURITY COMMISSIONER

     

     

    1. This is a claimant's application for leave to appeal from the decision of an appeal tribunal sitting at Londonderry.

     

    2. For the reasons I give below, I grant leave to appeal. I allow the appeal and I set aside the decision of the appeal tribunal under Article 15(8)(b) of the Social Security (NI) Order 1998. I direct that the appeal shall be determined by a newly constituted tribunal.

     

    REASONS

     

    Background

     

    3. The applicant claimed and was awarded disability living allowance (DLA) by the Department for Social Development (the Department) at the high rate of the mobility component and the middle rate of the care component from 5 July 2012 to 4 July 2014. On 13 March 2014 she made a renewal claim from 5 July 2014 on the basis of needs arising from depression, anxiety, panic attacks and breast cancer. The Department obtained a report from the applicant's general practitioner (GP) on 3 April 2014. The Department obtained a report from an examining medical practitioner (EMP) on 1 December 2014. On 29 December 2014 the Department decided on the basis of all the evidence that the applicant did not satisfy the conditions of entitlement to DLA from and including 5 July 2014. The applicant appealed.

     

    4. The appeal was considered by a tribunal consisting of a legally qualified member (LQM), a medically qualified member and a disability qualified member. After a hearing on 17 April 2015 the tribunal disallowed the appeal. The applicant then requested a statement of reasons for the tribunal's decision and this was issued on 16 June 2015. The applicant applied to the LQM for leave to appeal from the decision of the appeal tribunal but leave to appeal was refused by a determination issued on 28 July 2015. On 7 August 2015 the applicant applied to a Social Security Commissioner for leave to appeal.

     

    Grounds

     

    5. The applicant, represented by Mr Sean O'Farrell of Citizens Advice, submits that the tribunal has erred in law on the basis that:

     

    (a) it did not respond to the applicant's criticisms of the EMP's report;

     

    (b) its reliance on findings in the EMP report was therefore flawed and materially affected the outcome of the appeal;

     

    (c) the tribunal failed to give adequate weight to evidence submitted by the applicant.

     

    6. The Department was invited to make observations on the applicant's grounds. Mr Hinton of Decision Making Services (DMS) responded on behalf of the Department. Mr Hinton submitted that the tribunal had not erred in law as alleged and indicated that the Department did not support the application.

     

    The tribunal's decision

     

    7. The tribunal recorded that the applicant had previously had an award of DLA following a diagnosis of breast cancer and subsequent surgery. It was aware of reconstruction surgery following a left side mastectomy which had resulted in post-operative infection and continuing problems with the wound. The applicant sought low rate mobility component and low rate care component on the basis of the cooked main meal test. The tribunal considered the applicant's medical records and medical evidence handed in at the hearing, previous tribunal papers, and the Departmental submission which contained a GP factual report and an EMP report.

     

    8. The applicant gave oral evidence to the tribunal. The applicant's evidence was that she could not travel to appointments without being accompanied by a family member and could not drive a car due to anxiety and back pain. Under questioning, however, she conceded that she sometimes drove to a child care course when she had no other option. She indicated that she had problems standing at a cooker and that she lacked motivation to plan and cook a meal, and that she had physical problems cooking, stating that she experienced left shoulder pain. The applicant stated that she was anxious at the tribunal hearing and that she had felt under pressure at the time of the EMP examination, trying to show a better picture of her ability than was actually the case. The tribunal recorded that the appellant and her representative had maintained that she had given an unduly positive account of her situation and difficulties to the EMP - who recorded that she described going out on her own, being able to go shopping and go for walks in the summer.

     

    9. The tribunal observed that neither the GP nor EMP mentioned panic or anxiety. The term panic was used in the report of a counsellor prepared for the purpose of the appeal. It decided that the evidence of the EMP and that in the medical records should be preferred to that of the applicant, finding that she did not require guidance or supervision out of doors. It further found that the applicant cared for two children despite her difficult and challenging circumstances and relied on the EMP report which found no limitation in preparing a main meal, stating that "customer stated today that she is able to perform all these tasks on a regular basis". It found that the evidence showed that the applicant did not fit the criteria for the main meal test for either physical or mental reasons.

     

    Assessment

     

    10. An appeal lies to a Commissioner from any decision of an appeal tribunal on the ground that the decision of the tribunal was erroneous in point of law. However, the party who wishes to bring an appeal must first obtain leave to appeal.

     

    11. Leave to appeal is a filter mechanism. It ensures that only applicants who establish an arguable case that the appeal tribunal has erred in law can appeal to the Commissioner.

     

    12. An error of law might be that the appeal tribunal has misinterpreted the law and wrongly applied the law to the facts of the individual case, or that the appeal tribunal has acted in a way which is procedurally unfair, or that the appeal tribunal has made a decision on all the evidence which no reasonable appeal tribunal could reach.

     

    13. The applicant submits that she was upset after the EMP visit. She submits that she "tried to show a better picture than was actually the case". She submits that the tribunal did not deal with her criticisms of the EMP, made at the hearing. However, the EMP merely recorded what she had been told by the applicant. It is not clear to me exactly what criticism of the EMP can be drawn from those circumstances. The applicant relies on R2/04(IB)(T) where it is stated at paragraph 17 that the tribunal must deal with serious criticisms of the EMP report, and that it is a matter for the tribunal whether it accepts or rejects the criticisms and what reliance it places on the report.

     

    14. In her letter of appeal, the applicant stated of the EMP that "I found his visit to be rather brief in nature taking in the region of some 20 minutes to 30 minutes. I do not believe that the report will accurately reflect my circumstances". At the tribunal hearing, the applicant developed her criticism of the EMP, stating that she felt the EMP was "abrupt and sharp", and saying "I felt nervous, under pressure. I tried to show a better picture than was actually the case".

     

    15. To my mind, this was not a case in which criticisms could be made of the EMP report. The examination was timed as lasting 30 minutes, which is not inconsistent with the account in the appeal letter, but neither is it inconsistent with a full and accurate report. The applicant did not challenge the EMP for inaccurately recording what she had said at examination, but rather that she had said things to the EMP which were not accurate because of her own anxiety. Therefore, this was a case in which the credibility of the applicant's own statement to the EMP was placed in issue when contrasted with her evidence to the tribunal. I do not consider that the EMP can be criticised in these circumstances or that this is a case which falls within the principles stated in R2/04(IB)(T).

     

    16. In relation to low rate mobility, the tribunal tested the applicant's credibility. It was told by the applicant that she did not drive a car on her own due to anxiety and back pain. She stated that she always got a lift to her child care course as she "could not go on my own". When pressed, she accepted that she did occasionally drive to that course on her own. The EMP had recorded the applicant's statement that she "described going out alone, e.g. in to Derry for her college course" and "drives there and back herself". Moreover, the tribunal noted that no mention was made by the applicant to the EMP of anxiety or panic attacks. Whereas the applicant's GP mentioned anxiety once, in the factual report, she did not mention panic attacks and did not link anxiety to any difficulty going out alone. Evidence from Derry Well Woman referred to "low moods, difficulty in completing tasks and having a sense of panic and anxiety". However, this evidence did not link anxiety to any limitation in mobility. Furthermore, whereas the applicant stated to the tribunal that she was nervous at the hearing, the tribunal could observe no outward sign of that.

     

    17. On balance the tribunal decided that the applicant did not satisfy the conditions of entitlement to the low rate mobility component. I consider that it was entitled to reach this conclusion on the evidence before it.

     

    18. Mr O'Farrell further criticises the tribunal for stating that the "medical evidence handed in at the hearing was manifestly prepared for the purpose of supporting the appeal". He submits that the letters were prepared by professionals and that the tribunal's view of the evidence was tainted by thoughts of it being prepared for the purpose of the hearing. The documents referred to are letters from a counsellor at Derry Well Women, from a chiropractor at the Clarendon Chiropractic Centre and from the applicant's GP.

     

    19. I consider that it would be wrong of a tribunal to attribute less weight to evidence in a document solely on the basis that it was prepared for the purpose of supporting an appeal. The whole point of an appeal hearing is to enable an appellant to provide evidence in support of an appeal, whether oral or documentary evidence. Provided that such evidence does not relate to circumstances which were not obtaining at the time the decision under appeal was made, it is properly admissible to the appeal proceedings. A tribunal may nevertheless legitimately take the view that less weight should be attributed to such supporting evidence if, for example, it appears not to be based on objective clinical assessment but purely on a subjective account given the appellant. A tribunal is entitled to test such evidence for consistency with accounts given in other clinical evidence. However, a tribunal is not entitled to reject evidence purely on the basis of untested suspicion that the appellant sought to influence the content of such evidence.

     

    20. In relation to the evidence presented in this case, the tribunal stated that the documents were "manifestly prepared for the purpose of supporting the appeal" and that "the evidence handed in at hearing was clearly prepared specifically for the appeal". Without giving any fuller assessment of the content of the documents submitted, it would appear that the tribunal has afforded less weight to that evidence and that the applicant is entitled to question why this would be so. I grant leave to appeal on this issue.

     

    21. If the sole reason for a tribunal rejecting, or affording less weight to, evidence is that it was prepared for the purpose of an appeal, I consider that that would be an inadequate reason. Here the tribunal has considered the medical records and the EMP report, and considered that the evidence supplied by the applicant was outweighed by it. While the GP had referred to "anxiety", the tribunal considered that it was significant that the only reference to the word "panic" - apart from the claim form - was in the report of the counselling and trauma co-ordinator. I consider that the tribunal was entitled to consider lack of reference to panic in the medical records as a whole as significant and to prefer the report of the EMP which had stated:

     

    "Depression is mild and seems well-controlled on average dose of first line anti-depressant. Mood was good and did not describe anxiety or panic attacks. No evidence of any self-neglect".

     

    22. Nevertheless, I think that it is unfortunate that the tribunal has given among its reasons for rejecting the appellant's evidence that it "was clearly prepared for the purpose of the appeal". It may well be that this is not a material error at the end of the day, in the sense that it would not have affected the outcome of the appeal. However, all the evidence before the tribunal - that of the Department and that of the appellant alike - was ultimately prepared for the purpose of the appeal. The use of that expression in the context of the appellant's evidence alone inevitably conveys an impression of bias against the appellant on the part of the tribunal. Thus, for example, Mr O'Farrell raises the suspicion that the tribunal's view of the appellant's evidence was "tainted". I do not for a minute suggest that there was actual bias on the part of the tribunal, but accept that an impression of bias may have been created by the language it has used. Even though this view of the evidence may not have materially affected the outcome of the appeal, I consider that this is one of those cases where it is important to recall the maxim that "Not only must justice be done; it must also be seen to be done " ( R v Sussex Justices,   Ex parte   McCarthy   [1924] 1 KB 256) .

     

    23. In all the circumstances, I consider that I should set aside the decision of the appeal tribunal and remit the appeal to a newly constituted tribunal for determination.

     

     

    (signed)

    O Stockman

     

    Commissioner

     

     

     

    7 September 2016


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URL: http://www.bailii.org/nie/cases/NISSCSC/2016/61.html