Decision No:  C24/05-06(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 22 November 2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This case begins as an application, by the claimant, for leave to appeal against the decision of an appeal tribunal dated 22 November 2004.  That tribunal had disallowed the claimant’s appeal against a Departmental decision-maker’s decision dated 4 February 2004.  The decision-maker refused to supersede an earlier decision awarding the lower rate mobility component and the middle rate care component of disability living allowance (DLA) from and including 22 January 1998.

2.	I grant leave and with the consent of Mrs Carty of the Law Centre (NI) representing the claimant and of Mr Kirk of Decision Making Services Branch representing the Department, I treat the application as an appeal and proceed to determine any issues arising thereon as if they arose on appeal.  My decision is given in the final paragraph.  I am grateful to both representatives for their considerable assistance.  I held a hearing of the case which was attended by Mrs Carty and Mr Kirk and which the claimant and his wife also attended.  At that hearing Mrs Carty confirmed, in my view correctly, that she intended to proceed with two issues only which were as follows:

(1)	The omission of the reference to night seizures in the General Practitioner’s records and whether the tribunal had erred in how it dealt with this omission.

(2)	The manner in which the issue of the accident which the claimant suffered in 2001 was explored by the tribunal and whether there was any error in relation to that matter.

Mr Kirk opposed the appeal.  I confine myself to the above two issues.
3.	The background to the case is that there had been a hearing by the tribunal on 22 November 2004 which the claimant attended, accompanied by his wife and his representative, a Mr S J.  The claimant had consented to his General Practitioner notes and records being obtained by the tribunal and same were available for inspection by the claimant and his representative (with the claimant’s consent) prior to the hearing.  At hearing the claimant confirmed that he did not wish to see the General Practitioner’s notes and records.  The claimant’s application for supersession of the existing award had been made in a self-assessment form received in the Department on 26 August 2003.  In that form the claimant contended that he needed assistance three nights per week when he was in bed in connection with seizures. He also said that he needed someone to keep an eye on him at night and cited an instance of him having woken up, got dressed and thought he had to go to work at 3.30 am.  He gave no indication of duration of this supervision nor of how many nights a week it would happen but said it was happening more and more day and night.  He also indicated that he suffered night-time seizures.

4.	At the tribunal hearing the claimant stated that he was having seizures often – several times in a week the same as in February 2004 and that he could have two to three in one day and four to five in a week.  He could have one at night and he again mentioned the incident of having got up as if to go to work at around 4.00 am.

5.	It appears that, in the General Practitioner records, there was mention of an accident which the claimant suffered in 2001 when he was driving a car.  The tribunal obviously questioned the claimant about this and the claimant stated that he had not driven for a long time since about 1991 and he did not remember the accident in 2001.  His wife said that he had last driven in 1991 and she had no recollection of the road traffic accident in 2001.  She stated also that the seizures did not have a pattern, that they could take place twice a week that she made sure he was alright, that he had not been sleeping for about one year and that he was up every other night.  The claimant stated that he got up three times at night because sometimes he could not sleep and he got headaches.  He stated that he had fallen out of bed when he has had a fit and that he needed medication after a seizure.

6.	The tribunal accepted that the claimant suffered from epilepsy.  It reached a conclusion, which I consider it was entitled to reach, that there was no entitlement to the high rate of the mobility component.  It confirmed that the only issue to be considered was therefore his night-time needs.  That part of the tribunal’s reasoning which relates to those needs reads as follows: 

“… He told the Tribunal that he continues to fit at night.  He was unsure of how often they occurred.  Having heard his evidence in the light of the contents of the General Practitioner’s notes we consider it unreliable.  He told the Tribunal that he hasn’t driven since 1991 yet he attended the hospital in 2001 after having been involved in an accident as the driver of a car.  On that basis we reject his evidence.  His wife indicated that he fits regularly sometimes up to 3 times per night.  This is not supported by the contents of the General Practitioner’s notes.  [The claimant] was seen a number of times between September 03 and May 04.  There is no mention of night time seizures.

It may well be that he has occasional seizures at night but taking a broad approach as the Tribunal is obliged to do, we are not satisfied that [the claimant] requires attention to his bodily functions on a prolonged or repeated basis at night.  There are some references to [the claimant] having memory problems and getting up in the middle of the night in order to go to work.  We are satisfied that this is an infrequent occurrence and does not result in any care needs at night.  Given the above we are equally satisfied that [the claimant] does not require someone to be awake for a prolonged period or at frequent intervals watching over him in order to prevent a substantial danger to himself or others.”

7.	From a perusal of the record of proceedings it does not appear that the tribunal mentioned to the claimant that his General Practitioner notes did not indicate any night-time seizures being reported as occurring between September 03 and May 04 although he had been seen a number of times during that period.

8.	Essentially Mrs Carty is submitting that there was a breach of the rules of natural justice and the failure to conduct a fair hearing under Article 6 of the European Convention on Human Rights by reason of this omission.

9.	As regards the ground relating to the manner in which the tribunal dealt with the accident, essentially Mrs Carty’s submission was that again the rules of natural justice had been breached.  The General Practitioner records have been copied to me and there is clear indication in them of this accident in 2001, in which the claimant was the driver, having taken place.  The letter dated 6 April 2001 from a Dr C in C A H to the claimant’s General Practitioner refers to him having a history of epilepsy and being admitted to the hospital (it appears overnight) in connection with the road traffic accident.  He is reported to have had a seizure at the wheel of a car, his last seizure having been two years ago.  There is also a note from the Accident and Emergency Department at C A H in relation to the accident.  That stated that the claimant remembered driving along the motorway then getting out of the car after crashing and that there were no pre-collapse symptoms and that the claimant felt normal on coming to.  The claimant was described as being alert and orientated.  This note is dated 23 March 2001.  The letter from Dr C also states:

“… He was advised regarding the implications of driving and the need to report this to the DVLA.”

I take this to mean the vehicle licensing authorities.

10.	The claimant clearly stated to the tribunal that he did not remember the accident in 2001 and his wife also stated that she had no recollection of it.  Mrs Carty submits that the tribunal should have put to the claimant in more specific terms the matters which I have mentioned above.  In light of the claimant’s response to the tribunal’s questioning it does not appear to me that there would have been much point in that happening and I do not consider that there was any breach of the rules of natural justice in the tribunal not investigating that matter further.  In any event the notes of evidence are only that and I am uncertain as to the precise level of detail which the tribunal did use in exploring this matter.  It is, however, undoubted that it did raise the question of the accident and that the claimant denied any memory of it, as did his wife.  I do not consider that there is any merit in that ground of appeal.

11.	I now come to the question of whether or not there was a breach of the rules of natural justice/requirements for a fair hearing in the tribunal not raising with the claimant the lack of mention of night-time seizures in the General Practitioner notes for the period September 2003 to May 2004. Mr Kirk contends that the claimant had opportunity to view the notes but declined and that the tribunal was entitled to its view of his evidence as unreliable.  

12.	Mrs Carty has mentioned that, outside the said period, there is mention of night-time seizures and that does appear to be correct but I think that the tribunal was dealing simply with the fact that there was no mention of these seizures during that period, a time when the claimant was seeking an increase in the care component because of these night-time needs.  Such absence from the medical records is certainly a matter which the tribunal can take into consideration in assessing the reliability or otherwise of a claimant’s evidence.  The claimant himself has indicated frequently throughout the appeal that his memory is impaired and the tribunal is entitled to rely on more immediate records and to consider evidence unreliable which is not supported by those records.  I do not mean that it is bound to do so but that it is entitled to do so.  Mr Kirk is correct in that respect.  

13.	What does concern me, however, is the fact that this matter was not explored with the claimant.  It was crucial to the claimant’s case.  The tribunal concluded, in my view with justification, that the claimant rising in the night and seeking to go to work was an infrequent occurrence.  The matter of night-time seizures was therefore a very crucial one.  I asked for and received submissions on the basis of two decisions of Commissioners in Great Britain.  The first was that of Mr Commissioner Rowland in CIB/2368/2004 and the second that of Mrs Commissioner Parker in CSIB/377/03.  This latter decision I consider to be more relevant to the facts of this case.  Mrs Commissioner Parker states at paragraph 38:

“The tribunal is in no way required to put, for earlier comment, every inference it later draws.  Such a process would entirely stultify the tribunal system.  What is required is that there is no breach of natural justice.”

Commissioner Parker quotes from the judgement of May LJ in the Court of Appeal in England and Wales in the case of  Baron v Secretary of State for Social Services (reported as an appendix to R(M)6/86) (a judgment which the Court agreed) as follows:

“I do not think there was any obligation on [the tribunal] … to intersperse in their examination of him, or to put to him at the end of their examination that they were not minded to accept that which he was telling them.  That was the very issue which they had to determine.  They had under the Adjudication Regulations to give reasons for it.  They did determine that particular issue and they gave reasons for it.  In my judgement there was no absence of natural justice or lack of fairness – put it how one will – in the alleged failure of the [tribunal] to put to the applicant at least that he was exaggerating, or at worst that he was telling untruths.  I do not think there was any such obligation on the [tribunal] in the circumstances of the instant case.”

At paragraph 40, however, Commissioner Parker goes on to state:

“Where the adverse implications for the claimant’s case might not immediately strike either him or his representative, then it may be contrary to the rules of natural justice to decide the case without the party being given the opportunity of rebuttal.  This could arise, for example, when the inference is taken on account of special knowledge or expertise on the tribunal’s part, for example with respect to the effect of medication.  It might be necessary to mention a point which is not obvious as a matter of common sense, at least to a representative, unless the matter is articulated.  But where the representative reads or hears the evidence which the tribunal later infers is inconsistent (and ex hypothesi such inference is rational), this is not a new point.  It does not therefore require being drawn specifically to the attention of the parties.”

In this particular case the parties had an opportunity to view the records but the claimant did not do so.  That is a matter for a claimant and he cannot blame the tribunal if he elects not to do so.   Neither can he impose an extra burden on a tribunal because he elects not to do so.

14.	The situation here, however, is that the tribunal was relying on an omission from medical records of a matter, the occurrence of night seizures, which was of crucial importance to the claimant’s case.  It was also dealing with very voluminous medical records and with a situation where, as Mrs Carty submits, the records reflected some difficulty of management of the epilepsy.  There is also a letter of 3 September 2002 at page 95 of the notes which does refer to night-time seizures.  That is, of course, outside the period which the tribunal had to consider. On balance, taking into account all those matters, I do think that the tribunal erred in law in not raising with the claimant the matter of there being no indication of night-time seizures despite the various times on which he was seen in connection with his epilepsy in the period from September 2003 to May 2004.  It is, of course, a matter for the tribunal whether or not it accepts any explanation which may be given once the matter is raised.   The assessment of evidence is a matter for the tribunal.  However, in this case, where there was such a crucial omission and where it was such a simple matter for the tribunal to raise the matter with the claimant I do think that there was a breach of the rules of natural justice.

15.	I would not wish this decision to be taken as authority for the proposition that a failure to mention an omission or inconsistency in the medical records and the claimant’s evidence is always an error on the tribunal’s part (whether the claimant has declined to view the records or has viewed them).  All will depend on the circumstances of the case.  There can be no absolute rule as to when the fair hearing requirements are or are not satisfied in such circumstances.  The safest practice is probably to mention crucial issues.

16.	I therefore set the decision aside on that basis and remit the matter to a differently constituted tribunal for rehearing and re-determination.  I would emphasise that the assessment of evidence is a matter for the tribunal.  I would also request that the tribunal be clearly informed, Mrs Carty now being on board as an experienced and professionally qualified representative, of precisely the basis upon which supersession is sought and what statutory conditions are contended as satisfied.

17.	The claimant wins his appeal.

(signed):  Moya F Brown

Commissioner

23 January 2006