30.01.2001	Decision No: R1/02(DLA)	

SOCIAL SECURITY ACTS (NI)

DISABILITY LIVING ALLOWANCE

Claimant observed working - Admissibility of evidence 

The claimant had been awarded disability living allowance from 20 October 1997 to 19 October 2000.  He was observed working by Departmental fraud investigation officers and following a subsequent report by an Examining Medical Practitioner, the adjudication officer reviewed the award and decided that the claimant was not entitled to the allowance from and including 17 November 1998.

During the course of the appeal it was contended that the fraud investigation report should not be put forward to the Tribunal as there were no specific points in those observations relevant to the mobility or care needs.  There was also a request for an adjournment for further medical opinion to be obtained.  The Tribunal proceeded with the hearing and upheld the decision that the claimant was not entitled to disability living allowance.  The claimant appealed to the Commissioner on the ground that the fraud investigation reports should be ruled inadmissible. 

Allowing the appeal, the Commissioner held that:

1.	The Tribunal erred by not considering the adjournment request, by failing to comment on the two main arguments presented in the appeal and by restricting its deliberations on the claimant’s condition to the date of the decision removing entitlement (paragraphs 8 and 10).

2.	Evidence is admissible if it is relevant to the questions for determination.  Certain parts of the fraud investigation officer’s observations were extremely relevant to this case (paragraphs 12 and 13).

3.	(Citing Nottingham City Council v Amin [2000] “2AER p. 949)  It is the fairness of the whole proceedings which must be looked at and not the fairness of any subordinate procedure in isolation (paragraph 14).

4.	Both parties to an appeal are entitled to a fair trial and the Department’s right could be prejudiced if it was prevented from producing relevant evidence (paragraph 15).

5.	An Examining Medical Practitioner is not subject to the rules of natural justice and his report is not rendered inadmissible or of no weight because he was furnished with fraud investigation officers’ reports (paragraph 18).  

Recommended that:-

It is probably better practice if fraud investigation reports are not furnished to the Examining Medical Practitioner as the suspicion may be raised that his views have been affected by the information supplied and additional evaluation difficulties may arise (paragraph 18).

Obiter:-

Where information is supplied to the Examining Medical Practitioner the claimant should be informed of this at least at the time he is sent the evidence used in the revised decision (paragraph 19). 
DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by myself, by the claimant against a decision dated 7th July 1999 of a Disability Appeal Tribunal (hereinafter called “the Tribunal”) sitting at Cookstown.  A hearing was not requested and I consider that I can deal with the case without a hearing.  The Tribunal had disallowed the claimant’s appeal against a decision of an Adjudication Officer dated 14th March 1999.  The latter decision had reviewed a decision of an Adjudication Officer dated 1st December 1998 but had declined to revise it.  The decision of 1st December 1998 in its turn reviewed a decision of 11th July 1997 awarding Disability Living Allowance from 20th October 1997 to 19th October 2000.  The Adjudication Officer considered that there had been a relevant change of circumstances since benefit was awarded on 11th July 1997 and therefore reviewed the decision, the revised decision being that the claimant was not entitled to Disability Living Allowance from and including 17th November 1998.  In effect the Tribunal’s decision affirmed this disallowance.

2.	I have dealt in some detail with the adjudication history of the case as I think it is important to indicate that the onus of proving grounds for review, in this case relevant change of circumstances, rested on the Adjudication Officer.

3.	The Tribunal held a hearing of the case and unfortunately the claimant did not attend.  He advised that he was unable to attend and requested the Tribunal to proceed in his absence.  This the Tribunal did.  Part of the papers before the Tribunal and furnished to the claimant were notes of observations by departmental fraud investigation officers and an Examining Medical Practitioner’s report dated 17th November 1998.  The Tribunal also had the benefit of a written submission from the Adjudication Officer and also from Councillor McGlone, the claimant’s representative.  

4.	In his written submission to the Tribunal which was dated 6th July 1999 Councillor McGlone made mention of the fraud investigation reports and the question of their admissibility.  He has again made reference to that in his submission to me.  Essentially Councillor McGlone was contending that the fraud investigation reports should not be put forward to the Tribunal.  He stated that because, in the words of the Adjudication Officer’s own submission, “There were no specific points in the observations [by departmental fraud investigation officers] or the subsequent interview with regard to mobility needs” and “There were no specific points in the observations or the subsequent interview with regard to personal care needs”, there was no purpose to such reference and also that it was an attempt to bias the deliberations of the Tribunal.  This he submitted was particularly so where the claimant as here, continued to receive Incapacity Benefit.

5.	Councillor McGlone also contended that undue emphasis was given to the report of the Examining Medical Practitioner and that it was apparent from that report and its reference to the claimant’s occupation “as a bus driver” that the Examining Medical Practitioner had been apprised of the fraud investigations.  Councillor McGlone considered that this information being furnished to the Examining Medical Practitioner prior to the claimant’s examination for entitlement to Disability Living Allowance was a clear breach of the rules of natural justice.

6.	In his submission to the Tribunal Councillor McGlone also requested an adjournment in order that the Tribunal seek further medical opinion on the claimant’s disability.  He mentioned that the claimant was being referred to Mr Y..., orthopaedic consultant and stated that it might be appropriate that Mr Y...’ opinion be sought.  Neither in its findings of fact nor in its reasons did the Tribunal deal with this request for adjournment.  The Tribunal was certainly not obliged to adjourn and obtain evidence because requested.  In general the duty of furnishing evidence in support of an appeal is on an appellant not on the Tribunal.  The Tribunal may have considered it could decide the case without any further evidence.  However the Tribunal was in error in not giving consideration to the adjournment request and commenting on it in its decision.

7.	I also consider, that the Tribunal erred in not commenting on Councillor McGlone’s submission in relation to the issues of natural justice raised.  I will deal further with the substance of those issues later in this decision but it was an error on the Tribunal’s part not to comment on these major aspects of the claimant’s appeal.  Without such comment the claimant could not understand why he lost his appeal. 

8.	I set the decision aside for the reasons that the Tribunal does not appear to have considered the adjournment request and did not comment on two of the main arguments presented on the claimant’s behalf and for the further reason set out below relating to S31(7) of the Social Security Administration (Northern Ireland) Act 1992.

9.	Mr McAvoy of the Decision Making and Appeals Unit of the Department commented on the appeal by letter of 12th May 2000.  He submitted that the evidence of the claimant’s working (the fraud investigation officers’ reports) were properly admissible to the Tribunal, that the evidence was properly made known to the Examining Medical Practitioner who examined the claimant on 17th November 1998 and in no way tainted that Examining Medical Practitioner’s report. He further contended that it was open to the Tribunal to proceed to make a finding as to whether or not the claimant actually did work as alleged.  He also contended that if the Tribunal decided that the claimant did so work it could then have decided, weighing that fact against the other evidence, what precisely were his care needs and mobility restrictions and what level of award was merited (paying due regard to the lapse of time since the work observations).

10.	Mr McAvoy submitted that the Tribunal had erred by restricting its deliberations on the claimant’s condition to 1st December 1998 (the date of the decision removing entitlement).  Mr McAvoy contended that it was clear from the findings and reasons that the Tribunal accepted that a deterioration had occurred in the claimant’s condition after that date and that it regarded a physiotherapy report dated 3rd March 1999 as out of time.  In this case the appealable decision was that given on 14th March 1999 and the Tribunal should have considered the circumstances down to that date pursuant to section 31(7) of the Social Security Administration (Northern Ireland) Act 1992 which prevents consideration of circumstances not pertaining at the date of the decision under appeal.  I agree with Mr McAvoy that the Tribunal erred in not considering the matter down to 14th March 1999 and that is my further reason for setting the Tribunal decision aside.

11.	Councillor McGlone made further comment on the Adjudication Officer’s observations by letter of 25th May 2000.  He again raised the question of why the Adjudication Officer had referred to the investigation by the fraud investigation officers and produced their reports if he considered that there were no specific points in those observations relevant to the mobility or care needs.  Councillor McGlone contended that the references to fraud investigation and the observations made by the fraud investigation officers should have been ruled inadmissible.

12.	I am not in agreement with Councillor McGlone in that respect.  Evidence is admissible if it is relevant to the questions which the Tribunal had to determine.  In this case the Tribunal had to determine whether the Adjudication Officer had grounds to review the claimant’s previous award.  It appears to me quite beyond doubt that the observations of the fraud investigation officers were extremely relevant to whether or not the claimant should retain entitlement to Disability Living Allowance and were therefore admissible.  The Adjudication Officer had to establish the relevant change of circumstances.  He was entitled to produce such evidence as he had to show that a relevant change had taken place and such evidence was constituted, in part at least, by the fraud investigation officers’ reports.

13.	Councillor McGlone is quite correct that the Adjudication Officer in his submission to the Tribunal did state that there were no specific points in the fraud investigation officers’ observations regarding mobility or care needs.  That may be so in the sense that the observations were not dealing expressly with such needs.  It does not however mean that the observations were not relevant to the mobility and care needs.  If the Tribunal accepts the observations as accurate it appears to me that certain parts of those observations are very relevant indeed to whether the claimant’s care and mobility needs remained at the requisite levels.  So also could be the statement made by the claimant’s alleged employer.  I can therefore see no error in these documents being before the Tribunal and I agree with Mr McAvoy in that respect.  

14.	The claimant was aware that the documents were before the Tribunal and I can see no breach in his right to a fair trial in their being so.  He could make such representations on them as he wished and it is the fairness of the whole proceedings which must be looked at and not the fairness of any subordinate procedure in isolation (see Nottingham City Council v Amin [2000] 2AER p. 949).

15.	Both parties to an appeal are entitled to a fair trial and, were the Department to be prevented from producing relevant evidence, its right could well be prejudiced.

16.	I come now to the two issues of (a) whether the reports should have been before the Examining Medical Practitioner and (b) if they were properly before the Examining Medical Practitioner whether the claimant and the Tribunal should be apprised of the fact that the said information was put before the Examining Medical Practitioner.  I agree, as it appears does the Department, that the fraud investigation officers’ reports were put before the said Examining Medical Practitioner.  I can find no other explanation for his comment at page 24 of the report:-

“Walking ability appears to be good from his occupation as a bus driver”.

17.	I would, however, comment that the Examining Medical Practitioner’s report is by no means solely based on that observation.

18.	An Examining Medical Practitioner’s report is not rendered inadmissible or of no weight because the said Practitioner was furnished with information such as  existed in this case.  The said Practitioner is not making a decision or conducting a hearing, so that he is not subject to the rules of natural justice.  However, the suspicion may be raised that his views have been affected by the information supplied.  That is unlikely to cause difficulties where the Tribunal accepts that the information is accurate.  Where it does not, however, additional evaluation difficulties may be raised and the value of the report lessened.  The report is less likely to be questioned if the practitioner prepares it without being supplied with information from external sources which is not history or medical evidence.  It is probably better practice if such information is not furnished to the Examining Medical Practitioner.  However, as stated above, the furnishing of the information to the said doctor does not mean his report must be given no weight nor that it is inadmissible.  The weight to be given to it will be for the Tribunal and the evidence in the doctor’s report is of undoubted relevance to entitlement.

19.	I am of the view that where information is supplied to the Examining Medical Practitioner the claimant should be informed of this not necessarily prior to the examination nor indeed at the examination but certainly at least at the time when he is sent the evidence used in the review decision.  In this case the claimant was not so informed.  Indeed the Tribunal itself would not have been aware that other information was before the Examining Medical Practitioner had it not been that the said Practitioner made the note on his report which is referred to above.  I do consider that it may be contrary to the rules of natural justice for the claimant and/or the Tribunal not to know that the report was based, at least to some extent, on information other than the Examining Medical Practitioner’s expert knowledge, the history, the observations and the examination and medical evidence.  However in this case those matters were known to the parties and the Tribunal so little hangs on that matter.

20.	As I do not consider that this is a case where I can give the decision which the Tribunal should have given, I remit this case to a differently constituted appeal Tribunal.  That Tribunal should be apprised of and have copies of the fraud investigation officers’ reports and of the fact that those reports were before the Examining Medical Practitioner.  The claimant, who it is to be hoped will attend, may make such relevant contentions as he wishes in relation to same and can furnish such additional evidence as he wishes as regards his situation up to and including 14th March 1999.  He may wish to obtain evidence from Mr Y... in which case he should obtain that evidence as soon as possible.

21.	It will be for the Tribunal to decide whether or not it accepts the fraud investigation officers’ reports and to judge the weight to be given to the Examining Medical Practitioner’s report.

(Signed):  M F BROWN

COMMISSIONER

30 JANUARY 2001