[2006] NISSCSC A79_05_06(DLA) (19 September 2006) 

Application No:  A79/05-06(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Application by the above-named claimant for
leave to appeal to a Social Security Commissioner
on a question of law from a tribunal's decision
dated 24 August 2005

DETERMINATION OF THE SOCIAL SECURITY COMMISSIONER

I refuse leave to appeal.
REASONS

Having considered the circumstances of the case I am satisfied that the application can properly be determined without a hearing.

There is no arguable case that the tribunal’s decision was wrong in law.

The tribunal was properly constituted.  The tribunal analysed the evidence rationally and in accordance with common sense.  It made all necessary findings of fact material to its decision.  There was evidence to support each of those findings.  On those findings of fact, the tribunal was entitled to make the decision that it did.  There is nothing to suggest that the tribunal misunderstood or misapplied the law.  The full statement of the tribunal’s decision contains a very detailed explanation of the reasons why the tribunal made the decision that it did.  There was no breach of the principles of natural justice.  

In particular:

(i)	it is noteworthy that the issue of an alleged inadequate medical examination by the Examining Medical Practitioner (EMP) was not raised until the application to the legally qualified panel member for leave to appeal to a Commissioner;

(ii)	the content of the EMP report makes it clear that an examination of the claimant did take place;

(iii)	it is not reasonably arguable that the tribunal failed to consider properly the medical records;

(iv)	on the evidence available to it, the tribunal was entitled to conclude that the claimant’s “evidence” is marked by a degree of overstatement.

The form of the record of proceedings in this case is somewhat unusual as it is not entirely clear from the record what the claimant’s evidence was, as the record appears to record answers to questions without making clear what the questions were.  However, the very full statement of reasons, read with the record, make clear in this case, the substance of what occurred at the tribunal hearing.  Nevertheless the method adopted by the chairman of the tribunal to make the record of proceedings is not, in my view, appropriate.

In the circumstances any shortcomings in the record of proceedings do not render the decision in this case arguably erroneous in point of law.

I have also considered whether there is any other ground for holding that the decision of the tribunal is or may be erroneous in point of law and have reached the conclusion that there is not.

It is relevant that a Commissioner ought only to entertain an appeal against a tribunal’s decision on matters arising out of findings of fact if there is sufficient foundation to argue that these findings were both demonstrably unfounded and capable of having affected the outcome.

It must also be borne in mind that, in this and every similar case, a tribunal is entitled to draw its own inferences and reach its own conclusions and however profoundly a Commissioner, as an appellate tribunal on an appeal from a tribunal on a point of law, may disagree with its views of the facts, he or she is not able to upset that tribunal’s conclusions unless:

(a)	there is no or no sufficient evidence to found them – which may occur when the inference or conclusion is based not on any facts but on speculation by the tribunal, or

(b)	the primary facts do not justify the inference or conclusion drawn but lead irresistibly to the opposite conclusion, so that the conclusion reached may be regarded as perverse.

In this case I neither express disagreement nor agreement with the tribunal’s inferences and conclusions.  However, even if I were in disagreement, that does not render the decision erroneous in point of law as the tribunal’s conclusions are based on sufficient evidence, its assessment of the evidence was reasonable and the primary facts found justify the conclusion.

(Signed):	M F BROWN

COMMISSIONER

19 September 2006