HD-v-Department for Social Development (II) [2011] NICom 169

Decision No: C4/10-11(II)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABLEMENT BENEFIT

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 13 January 2010

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant, with leave from the legally qualified member, against the decision of a tribunal affirming a decision of a decision-maker to the effect that:

(i)	the claimant is suffering from a loss of faculty as a result of the relevant accident;

(ii)	the relevant loss of faculty is impaired spinal function and reduced mood;

(iii)	the degree of disablement is five per cent;

(iv)	the period of assessment commences on 24 July 2009 and continues for life; and

(v)	the assessment is final.

	In addition the tribunal decided that the claimant is not entitled to disablement benefit (II) from and including 29 July 2009 (because the extent of the loss of faculty amounts to less than 14 per cent).

2.	The claimant is represented by Ms Louise Kyne of the Citizens Advice Bureau while the Department is represented by Mr Jim Hinton of Decision Making Services.

3.	On 21 October 2004 the claimant, a production operator, claimed II in respect of an accident sustained on 6 January 2003 when he suffered a back injury as a result of a fall.  The claimant was examined by a medical adviser on 22 July 2005 who advised that there had been a relevant loss of faculty arising out of reduced and painful back movements and assessed the claimant’s disablement at 15 per cent from 20 April 2003 to 1 January 2004; 20 per cent from 2 January 2004 to 22 July 2006 and, then five per cent from 23 July 2006 to 23 July 2007.  The five per cent assessment was a final assessment.  On 13 September 2005 the Department issued the claimant official notification of the decision.  On 27 September 2005 the claimant appealed the decision and, on 14 March 2007, an appeal tribunal allowed the appeal and assessed the resulting disablement at 24 per cent from 2 January 2004 to 22 July 2006 and 15 per cent from 23 July 2006 to 23 July 2009.  This was a provisional assessment.  On 9 July 2009 the claimant was re-examined by a medical adviser who assessed the claimant’s disablement at five per cent from 24 July 2009 for life.  This was a final assessment.  On 6 August 2009 an appeal from the claimant was received in the Department.  An appeal hearing on 13 January 2010 disallowed the appeal and confirmed the Department’s decision.

4.	The claimant then sought leave to appeal to a Commissioner.  The legally qualified member on 28 April 2010 granted leave to appeal.

5.	It is common case that two relevant questions arise in this appeal, namely:

(i)	whether the tribunal had erred in committing or permitting a procedural irregularity by failing to consider an adjournment to enable the claimant’s hospital records to be made available – by not so doing the tribunal may have adversely affected the outcome of the appeal and the fairness of the proceedings; and

(ii)	whether the tribunal erred in law by failing to resolve conflicts of fact or opinion on material matters in relation to the medical evidence.

6.	Ms Kyne made the following submissions in relation to the first issue:

	The appeal tribunal had the power to adjourn a hearing on application or of its own motion – regulation 51(4) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999.  The claimant had signed a consent form agreeing to the release of his hospital records for perusal by all parties to the proceedings at the appeal tribunal.  The Appeals Service contacted the medical records department of the Mater Hospital Trust however, these records were not immediately released because The Appeals Service wrote to the claimant, by letter dated 5 January 2010, stating, inter alia, as follows:

“The absence of Hospital records can often lead to a delay in the resolution of appeals, therefore it would be helpful if you would now contact the above Medical Records Department(s) to ensure the records will be sent to The Appeals Service in time for your tribunal date.”

	The claimant attended the Mater Hospital to request his records but was informed that the hospital would not release any letters to him and that it would only release them to The Appeals Service.  In the circumstances the tribunal, in the interests of justice, ought to have adjourned the hearing on 13 January 2010 for the medical records which the claimant had consented to being released, to be made available, especially as the evidence contained in the records was relevant to the claimant’s condition and therefore could well have been material to the outcome of the proceedings.  Subsequently the appellant received copies of relevant letters from the All Clear Clinic at the Mater Hospital, dated 9 March 2009, 15 September 2008 and 14 August 2008.  At least some of the information contained in these letters, especially that of 9 March 2009, proved relevant to the issues in the claimant’s appeal.  In particular they were relevant to the date of the original decision-maker’s decision (namely, 21 July 2009) and supported the claimant’s contention that there had been no improvement in his condition and, in addition, that he was receiving ongoing treatment for pain.

7.	Mr Hinton made the following submission in relation to the first issue:

	There is no evidence presented in the record of proceedings that the chairman of the panel or any other member of the tribunal asked the clerk if medical records were available at the hearing.  Departmental investigations have established that The Appeals Service requested medical records from the Mater Hospital Trust on 17 December 2009 and 4 January 2010 but these records were not received before the tribunal hearing.  There was a reasonable expectation on the part of the claimant that these records would be before the appeal panel on the day of the hearing.  Therefore, in the interests of justice, the hearing ought to have been adjourned to obtain the hospital records.

8.	I come to the following conclusion in relation to the first issue:

	The record of proceedings makes clear that certain documents were considered by the tribunal.  It is also clear that the claimant had co-operated in attempting to make the medical records available to the tribunal.  In addition there is no suggestion that the tribunal chairman or other members were ever informed by the clerk to the tribunal or any other person that, in spite of a request from The Appeals Service to the Mater Hospital Trust for the records, they had not been made available to the tribunal.   It seems very likely that the tribunal never even knew that hospital records had ever been requested.  Therefore at the very least the claimant should have been informed of the problem that no records were available so that the claimant could have considered his position and decided whether or not to apply for an adjournment so that a further attempt could be made to obtain such records.  Unfortunately this was not done.  Therefore, I conclude that the tribunal has, even though inadvertently, erred in law by not giving the claimant, at the very least, an opportunity to have relevant evidence from the medical records before the tribunal.

9.	The problem in this case is likely to recur unless steps are taken to prevent it.  It is not appropriate for me to set out in detail what steps should be taken by the tribunal judiciary and the tribunal administration but the following points should assist in setting up a fail-safe system for the future.

(i)	I understand that, in Northern Ireland, the Tribunal Service file is always available at a tribunal hearing.  Accordingly the clerk to the tribunal should ensure that this file is available to the tribunal.

(ii)	At the commencement of any hearing the chairman of the tribunal should ask specifically to see the file.  The chairman, on behalf of the tribunal should peruse the file and, in particular, pay special attention to the portions of the file that have been updated since the members of the tribunal have received the tribunal papers.  The chairman should not rely on the clerk, who may have only a limited knowledge of the case, to inform him or her about any matter that might be relevant.  The responsibility in relation to these matters is imposed on the chairman, on behalf of the tribunal, not on the administrative staff.

(iii)	Especially in a disablement benefit case, the chairman should specifically ensure that the position about any medical/hospital notes is clarified.  The chairman should pay particular attention to find out whether the claimant has agreed to have the relevant notes made available to the tribunal and, if so, whether the notes are available.

(iv)	If the relevant notes are not available, the position should be explained to the claimant and his representative, as well as to any Departmental representative.  In light of their comments, the tribunal can, if necessary, make an informed decision either to continue with the hearing or to adjourn the case until the relevant notes are available.

10.	Ms Kyne’s submissions in relation to the second issue can be summarised as follows:

	The tribunal erred by failing to resolve conflicts or opinions on material matters in relation to the medical evidence.  The medical adviser stated on his medical assessment of 9 July 2009 that:

	“There appears little change in examination findings since 22/7/05.”

	This would suggest that there is no improvement in the claimant’s condition, as the claimant had contended, since the 2005 examination.  Accordingly, the assessment should not have been reduced.  However, the Department had attempted to clarify this issue by asking the medical adviser to clarify matters.  As a result the tribunal had the benefit of the medical adviser’s additional clarification as the doctor stated on 19 October 2009 as follows:

“I stated there appears to be little change in examination findings - compared with those of 22/7/05 – not little change in client’s condition.”

	This might have made things slightly clearer but the tribunal’s failure even to refer to the issue means that the tribunal has failed to do what Mr Commissioner Mullan has clearly recommended in C8/08-09(IB), where, at paragraph 60, he stated:

“… there is a clear duty on appeal tribunals to undertake a rigorous assessment of all of the evidence before it and to give an explicit explanation as to why it has preferred, accepted or rejected evidence which is before it and which is relevant to the issues arising in the appeal.”

	The tribunal did state that it had “reviewed the medical evidence” but this is not sufficient in circumstances where there is at least an issue as to the meaning of what the medical adviser stated in his report, even with the addition of the further comment.

11.	Mr Hinton made the following submission in relation to the second issue:

	It is accepted that the medical adviser’s comments of 9 July 2009 raised an issue.  However, the clarification of 19 October 2009 makes clear that the medical adviser accepted that the claimant had low back pain but it was not as severe in 2009 as it was in 2005, hence the reduced assessment of 5%.

12.	In relation to the second issue I come to the following conclusion:

	In light of my findings and conclusion in relation to the first issue, this matter is no longer as crucial as it might have been.  However, I find it difficult in the first place to accept that the medical adviser’s clarification of 19 October 2009 in itself must inexorably lead to the conclusion that the medical adviser was accepting that the claimant had low back pain but that it was not as severe in 2009 as it was in 2005.  At the very least there was an issue for the tribunal, which consisted of a legal chairman and two medically qualified members, to deal with.  In the circumstances I would have expected the tribunal to make a finding of fact as to what the medical adviser was stating in the two portions of evidence (ie that of 9 July 2009 and that of 19 October 2009) in light of the rest of the evidence available to the tribunal.

13.	Accordingly I decide, in relation to the second issue, that the tribunal ought to have clarified explicitly why it concluded that at least some of the medical adviser’s evidence did not support the claimant’s case that there ought not to be a reduction in the percentage loss of faculty.  Therefore I find that the tribunal has also erred in law in this respect.

14.	For the reasons set out in paragraphs 8, 12 and 13, I hold that the decision appealed against was erroneous in point of law.  Accordingly I allow the appeal and set the decision aside.  I refer the case back to a differently constituted tribunal for a rehearing on the merits.  However, the fact that these proceedings before a Commissioner have been successful should not be taken as an indicator of ultimate success before the new tribunal.

(signed):  J A H Martin QC

Chief Commissioner

9 May 2011