GRC-v-Department for Communities (DLA) [2017] NICom 6

Decision No:  C8/16-17(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 2 September 2015

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 2 September 2015 is not in error of law.  Accordingly the appeal to the Social Security Commissioner does not succeed.  The decision of the appeal tribunal that the appellant is entitled to the lowest rate of the care component of disability living allowance (DLA) from 22 February 2015 to 21 February 2017 but is not entitled to either rate of the mobility component from and including 22 February 2015 is confirmed.

2.	This decision will come as a disappointment to the appellant. A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.  An application to the Social Security Commissioner for leave to appeal requires the appellant to identify the grounds or basis on which it is submitted the decision of the appeal tribunal is in error of law.  Having considered the application made by the applicant, and the grounds set out in the application, I am satisfied, for the reasons which are set out below, that no error of law can be identified. 
 
	Background

3.	On 11 February 2015 a decision maker of the Department decided that the appellant was entitled to the higher rate of the mobility component and the lowest rate of the care component of DLA from 22 February 2015 to 21 February 2017.  On 5 March 2015 the appellant asked for the decision dated 11 February 2015 to be reconsidered.  Following the receipt of additional information from the appellant the decision dated 11 February 2015 was reconsidered on 22 April 2015 but was not changed. An appeal against the decision dated 11 February 2015 was received in the Department on 19 May 2015. 

4.	The appeal tribunal hearing took place on 2 September 2015.  The appellant was present and was represented by an adviser from the Citizens Advice organisation.  There was a Departmental Presenting Officer present.  The appeal tribunal disallowed the appeal, in part, confirming the award of entitlement to the lowest rate of the care component of DLA for the same fixed period but removing entitlement to the higher rate of the mobility component from and including 22 February 2015.

5.	On 9 December 2015 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS).  On 5 January 2016 the application for leave to appeal was refused by the Legally Qualified Panel Member (LQPM). 

	Proceedings before the Social Security Commissioner  

6.	On 26 January 2016 a further application for leave to appeal was received in the Office of the Social Security Commissioners. 

7.	On 26 January 2016 correspondence was forwarded to the representative who had appeared on behalf of the appellant in the proceedings before the appeal tribunal asking him to clarify whether he was intending to continue to represent the appellant in the proceedings before the Social Security Commissioners.  There was no reply to this correspondence but the appellant later confirmed to my office that the Citizens Advice organisation would not be representing him during these proceedings. 

8.	On 12 February 2016 observations on the application for leave to appeal were requested from Decision Making Services (DMS).  In written observations dated 24 February 2016, Mr Culbert, for DMS, opposed the application for leave to appeal on the grounds submitted by the appellant but identified what he submitted was a potential error of law.  Written observations were shared with the appellant on 1 March 2016.   E-mail correspondence was received from the appellant on 31 March 2016 which was shared with Mr Culbert on 5 April 2016.

9.	On 30 June 2016 I granted leave to appeal. In granting leave to appeal I gave, as a reason, that an arguable issue arises as to whether the appeal tribunal complied with the principles set out in C15/08-09(DLA).  The determination granting leave to appeal was not signed until 2 August 2016 due to leave commitments. 

10.	On the same date I directed an oral hearing of the appeal. The oral hearing took place on 15 September 2016.  The appellant was present and the Department was represented by Mr Culbert.  I am grateful to both the appellant and Mr Culbert for their cogent and articulate submissions.  There then followed a minor delay in the promulgation of this decision.  This was occasioned, in part, by my being aware that one of the issues which had arisen in this appeal was also being considered by an Upper Tribunal Judge in Great Britain.  I formed the view that it would be useful to await the decision of the Upper Tribunal Judge before considering the issues in depth.

	Errors of law   
 
11.	A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.  What is an error of law?

12.	In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals. As set out at paragraph 30 of R(I) 2/06 these are:

“(i)	making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);
(ii)	failing to give reasons or any adequate reasons for findings on material matters;
(iii)	failing to take into account and/or resolve conflicts of fact or opinion on material matters;
(iv)	giving weight to immaterial matters;
(v)	making a material misdirection of law on any material matter;
(vi)	committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …
Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’).  Errors of law of which it can be said that they would have made no difference to the outcome do not matter.” 

	The submissions of the parties

13.	In the application for leave to appeal, the appellant made the following submissions:

‘I wish to appeal on the grounds that I don’t believe that sufficient consideration of the evidence was taken into account and its subsequent impact on my mobility. 

Medical evidence was submitted which showed the severity of my injuries.  It showed the severity of upper back injuries and also confirmed lower back problems. I would suggest that given the evidence provided, it would be reasonable to assume that someone with such damage would be in severe pain which would restrict the ability to be mobile.  The appeal seemed to suggest that there was little evidence to suggest that lower back problems were significant enough as to warrant mobility restriction but I don’t believe that sufficient weight was given to the fact which was confirmed in a letter dated 14th Feb 2014 from Mr PN. In it it states:

“He has chronic pain around the fracture, describes some radicular L5 symptoms in his left leg.  He also has degeneration of L4/5 & L44/5 level on the left side which may explain some of his left leg pain.  I have referred him for a root nerve injection in relation to this.”

I would contest that for someone to be referred for such a procedure would suggest significant levels of pain and as this is in the lower back region it would be reasonable to assume that this would then impact on mobility.

Also on the statement of reasons page, point 5 refers to a medical report from my consultant spinal surgeon, which confirms the upper fracture and which also confirms lower degeneration.  However it also refers to a comment from the medical member of the panel

“but the medical member indicated that this was likely consistent with the Appellant’s age and was unlikely to be a significant disability.”

I would suggest that this comment is entirely unwarranted and would suggest that the medical evidence referred to above shows that there is significant pain.’   

14.	In his written observations on the application for leave to appeal, Mr Culbert made the following submissions on the issues which had been raised by the appellant:

‘(The appellant) contended that medical evidence was submitted which showed the severity of the injuries to his upper back and also confirmed lower back problems and that it would be reasonable to assume that someone with his injuries would be in severe pain which would restrict mobility.  (The appellant) also states that the appeal seemed to suggest that there was little evidence to suggest that lower back problems were significant enough to warrant mobility restriction and he refers to a report from Mr PN dated 14th February 2014.
In the reasons for decision the tribunal has stated:

At paragraph 5(a): 

“The GPFR of 05.02.2015 (Tab 3) made reference to degeneration at L4/5 and L5/S1 shown on MRI scan but the medical member indication that this was likely consistent with the Appellant’s age and was unlikely to be a significant disability”

And at paragraph 5(c): 

“The greatest weight and bending forces in the body are experiences in the lower part of the lumbar spine. However the focus of most of the Appellant’s pain and the site of his 2006 fracture – was between his shoulder blades.  Even allowing for some referred pain into the lower spine the site of the injury was not physiologically consistent with a severe walking restriction.”

Then at paragraph 5(f): 

“Mr McAleese referred to Commissioner’s decision in RDLA 4/04, the purport of which is that if pain is ever present irrespective of activity and in consequence no walking can be undertaken without severe discomfort, then the Appellant may be regarded as virtually unable to walk.  Although the Tribunal accepted that the Appellant obviously had significant pain between the shoulder blades, the site of the pain was unlikely significantly to affect the Appellant’s walking.  Further, the Tribunal did not accept, as the Appellant said in evidence, that the strong analgesia taken was largely ineffective.”

I submit that the tribunal has demonstrated in its reasons that the evidence has been considered and while it has been accepted that (the appellant) has a lot of pain in the upper area of his spine the tribunal’s medically qualified panel member has advised that pain in this area is unlikely to have a major effect on his ability to get around. The tribunal was aware that (the appellant) also had problems in his lower back; however this was not as severe as the issues in his upper back and the tribunal felt that this would not cause him a significant disability. 

I refer to Commissioner Brown’s decision R3/04(DLA) in which it is stated at paragraph 4:

“I should state at the outset that the weight to be given to any evidence is completely a matter for the Tribunal.  The weight to be given to an item of evidence is a matter of fact.  That means that I can disturb it only if that conclusion as to weight is one which no reasonable Tribunal could have reached...”

I submit that the tribunal has reached a reasonable conclusion based on all of the evidence available to it and with the expertise of a medically qualified panel member who has advised that (the appellant’s) injuries would be unlikely to lead to a significant mobility restriction.

(The appellant) has referred to a letter dated 14th February 2014 from Mr PN. This letter has not been mentioned by the tribunal and is not included in the appeal papers.  It is possible that the letter was included in (the appellant’s) GP records however it was not specifically referred to by the tribunal. Mr PN was (the appellant’s) spinal surgeon prior to retirement and he was replaced by Mr O’B, two letters from Mr O’B dated 3rd December 2014 and 21st January 2015 were attached to the GP factual report and therefore I would submit that while (the appellant) refers to Mr N’s letter the letters from Mr O’B are more relevant at the date being considered by the tribunal. 

In view of the above I would submit that there is no merit in this ground of appeal and the tribunal has not erred in law as contended.’

15.	As was noted above, while Mr Culbert opposed the application for leave to appeal on the grounds submitted by the appellant, in keeping with his role as an amicus curiae, he identified what he submitted was a potential error of law, as follows:

‘In C15/08-09(DLA) Chief Commissioner Mullan provided some guidelines for tribunals when the decision under appeal incorporates an existing award. He stated at paragraph 77:

“Accordingly, in my view, it is safest and best practice for an appeal tribunal in each case where the decision under appeal incorporates an existing award:

(i)	to explain to the appellant that the appeal tribunal is under a duty to consider all of the evidence which is before it, and to ensure that the decision under appeal to it is correct;

		(ii)	to outline to the appellant the powers available to the appeal tribunal which are:

•	to make a decision which is more favourable to the appellant;
•	to confirm the decision of the Department with respect to the existing award; and
•	to make a decision which is less favourable to the appellant.

(iii)	to outline to the appellant, the options available to him, which are:

•	to continue with the appeal tribunal hearing;
•	to withdraw the appeal at any stage prior to its determination;
•	to seek a brief adjournment to consider the implications of what has been described, or a longer adjournment to seek further legal advice in light of that description....”

While the record of proceedings shows that the tribunal complied with paragraph 77(ii) of C15/08-09(DLA) there is no record to show that it complied with paragraph 77(iii).  In the reasons for decision it is stated at paragraph 2:

“The Appellant attended the appeal hearing on 02.09.2015 in company of his partner and his representative Mr McAleese of Newtownabbey CAB.  Ms Muldoon appeared as Presenting Officer for the Department.  At the beginning of the hearing the Appellant was advised of the Tribunal’s power to increase, maintain, reduce or remove the existing award. The Appellant had had an opportunity to consider with his representative the statement of the Tribunal’s powers before entering the Tribunal room.  The representative indicated that the Appellant understood the effect of what was said and that the Appellant nonetheless wanted to proceed with his appeal.” 

Looking at the above extract as (the appellant’s) representative confirmed that he (the appellant) wished to proceed with the appeal it may be the case that he was aware of the options that were available to him, however as there is no explicit record of the tribunal outlining these options I would submit that there is a potential error by the tribunal.’

16.	In his reply to the Mr Culbert’s written observations, the appellant made the following submissions:

‘I want to respond to what the department has said about my appeal. The letter of 14 February 2014 from Mr N should have been in my medical records.  It is highly likely it was in my records as it was copied to my GP and would have been included in my medical records.  The letter corroborates what I told the tribunal about my lower back and leg pain.  Mr N believed it was significant enough to warrant specific treatment.  It is an error by the tribunal to ignore this letter as it supported what I had told the tribunal.  If the letter was in my medical records, the tribunal has made an error by not explaining its view of this letter.  If this letter was not in my records, then it should have been and I had a reasonable expectation that this letter and any other letter sent to my GP about my condition would have been there.  It is an important letter because it shows that the problem with my lower back are more severe than would be expected of someone my age [as the medical member of the tribunal said] as not everyone of my age is sent for nerve root injections.

I had been getting the high rate mobility for 3 years and my condition has not improved.  I have degeneration at L4/5 and L5/S1 which is not going to get better.  The tribunal do not explain why I have been given a lower rate.

The tribunal has unfairly rejected the evidence given by my GP.  In response to the specific question about my ability to walk, my GP has said that I have ‘daily pain’.  The tribunal said my GP did not refer to a mobility restriction but my GP has stated, when asked about my mobility, that I daily pain [sic].  That pain causes my mobility restriction. The tribunal have not explained why it disregarded this evidence from my GP.

I had not been advised that I could withdraw my appeal at any time during the hearing.  At the start of the tribunal I was told I could withdraw there and then but I did not know I could withdraw at any time during the tribunal.  Looking at what Mr Culbert has said, I think this is an error of law as I was not informed of all of my rights.’

17.	As was noted above, the appellant attended an oral hearing of the appeal before me.  In response to questions which I asked him he provided the following evidence.  Having made his appeal he telephoned his local Citizens Advice office to seek assistance.  Subsequently he met Mr McAleese.  He attended a meeting with him in the local office.  He stated that his purpose in appealing was to seek to secure an entitlement to the middle rate of the care component of DLA based on a requirement for attention in connection with his bodily functions at night.  He noted that at the appeal tribunal hearing Mr McAleese had advanced the argument that he had an entitlement to the highest rate of the care component which the appellant submitted was wrong as he did not consider that he had such an entitlement.

18.	At the initial meeting Mr McAleese had advised the appellant that there was a possibility that he could lose his existing entitlement to DLA as a result of appealing.  He had not, however, at this first meeting indicated to him that he had the option to withdraw his appeal and retain his existing award.  The appellant stated that he had gone home and thought about the possibility of losing his existing entitlement.  Equally, however, he had thought about what he considered was his just entitlement. 

19.	The appellant stated that on the day of the appeal tribunal Mr McAleese met with him about five minutes before they went into the appeal tribunal hearing room.  They had discussed his General Practitioner (GP) notes and records.  In addition, Mr McAleese had repeated to the appellant that there was the potential for him to lose his existing entitlement.  Most significantly, he had outlined to him, at this stage, his option to withdraw his appeal and retain his existing entitlement.  The appellant formed the view that as he was present at the hearing he would go ahead and was prepared to take the risk. 

20.	The appellant stated that in the appeal tribunal hearing room the LQPM had explained the powers of the appeal tribunal, including the power to remove an existing entitlement.  Crucially the LQPM had also advised him of his option to withdraw.  He agreed that the statement which had been made by the LQPM in the record of proceedings was wholly accurate. 

21.	The appellant stated that during the course of the oral hearing he felt that the appeal was ‘not going well’ for him due to an interaction which he was having with the Medically Qualified Panel Member (MQPM).  He asserted that he was unaware that he could withdraw his appeal during the course of the hearing and after it had commenced.  He stated that had he been aware of this option he would have exercised it.  He did not also know that he could have sought an adjournment of the hearing to discuss matters with Mr McAleese. 

22.	In relation to the issue of the medical evidence which was before the appeal tribunal, the appellant submitted that a submission was made concerning evidence which the appellant had thought to be of significance in his case, particularly evidence from Mr N.  He asserted that the appeal tribunal had looked through his GP notes and records but that there was no definitive answer as to whether the report which the appellant considered to be relevant was in those notes and records.  The appellant submitted that the MQPM had challenged evidence which he had given concerning pain which he experienced in a particular area and that he had found the interaction with the MQPM to be uncomfortable.

	Analysis

23.	I begin by addressing the issue on which I granted leave to appeal, namely, whether the appeal tribunal complied with the principles set out in C15/08-09 (DLA).  As was noted above, Mr Culbert’s initial support on this issue, as set out in his written observations on the application for leave to appeal, was based on the fact that there was no record, in the record of proceedings, that the appellant’s options were explained to him.  In that respect the appeal tribunal may not have complied with sub-paragraph (iii) of paragraph 77 of the decision in C15/08-09 (DLA).  Mr Culbert accepted that the appeal tribunal had complied with sub-paragraphs (i) and (ii).

24.	There is now a ready answer to this aspect of the appeal.  In his own evidence to me, the appellant has conceded that immediately before the appeal tribunal hearing he was aware of his option to withdraw his appeal and, thereby, retain his existing entitlement to DLA.  More significantly, he has conceded that at the outset of the appeal tribunal hearing the LQPM did provide him with an explanation of the options, including the option to withdraw.  He also agreed that the statement made by the LQPM, in the statement of reasons for the appeal tribunal hearing, concerning the appeal tribunal’s powers and that he had been given the opportunity to consult with his representative, was accurate.  It is, of course, best and safest practice for an appeal tribunal, in line with sub-paragraph (v) of paragraph 77, to ensure that a record of the explanations given by the appeal tribunal, in respect of its powers and the appellant’s options, is entered into the record of proceedings for the appeal tribunal’s hearing.  That requirement was not fully complied with in the instant case but I have no hesitation in concluding that the appellant was aware that there was the potential for him to lose his existing entitlement and that as a consequence of that power being available to the appeal tribunal, he had the option to withdraw his appeal. As he put it himself, in his oral evidence to me, once at the appeal tribunal hearing, he formed the view that as he was present at the hearing he would go ahead and was prepared to take the risk. 

25.	I have noted, in addition, that the appellant was represented by a representative with lengthy experience of appearing before appeal tribunals.  In this regard my further comments at paragraph 69 of my decision in C15/08-09 (DLA) are appropriate:

‘The circumstances in which the appeal tribunal explains its powers will be different in each case.  Where the appellant is represented by an experienced representative, with existing knowledge of the appeal tribunal’s powers, the explanation may not require more than a simple description’

26.	In relation to this aspect of the appeal, and as was noted above, I had awaited the decision of the Upper Tribunal in Great Britain in MW v SSWP (PIP) ([2016] UKUT 0540 (AAC) ‘MW’).  The benefit at issue in this case was Personal Independence Payment (PIP), a new social security benefit in Great Britain and which is in the process of being introduced in Northern Ireland. 

27.	The facts were that the appellant had previously been in receipt of the higher rate of the mobility component and the middle rate of the care component of DLA.  The Secretary of State then decided that payment of DLA would cease but that the appellant would, thereafter, be entitled to the standard rate of the daily living component of PIP for an ongoing period.  It was also decided that there was no entitlement to the mobility component of PIP.  On reconsideration, the Secretary of State decided that there was entitlement to the standard rate of the mobility component of PIP for the same ongoing period  On appeal, the First-tier Tribunal decided she was not entitled to the two enhanced rates which she had sought on appeal but that she was not entitled to the standard rate of the two components either. It had, therefore, on appeal, removed her existing entitlement.

28.	In the statement of reasons for its decision, the First-tier Tribunal made the point that it had warned the claimant that such was a possible outcome and that she had decided, nonetheless, to proceed. It stated:

‘15. Prior to the hearing, at 2.45pm, the tribunal invited [the claimant’s representative] to spend some time with [the claimant] to make her aware that the Tribunal would be considering the entirety of her award, 	including the points already awarded and the decision to be awarded the standard rate of both daily living and mobility components. [The representative] confirmed that he had already commenced discussion with [the claimant] regarding this.

16. [The claimant] came into the Tribunal at 3pm, pushing a wheeled frame and holding a walking stick in her right hand. [The representative] confirmed that [the claimant] fully understood that the tribunal were considering the entirety of her award. The Tribunal reiterated again to [the claimant] that the Tribunal could decide to keep the award the same, could reduce it, or could reduce the award. [The claimant] confirmed herself that she understood the potential implications for continuing with her appeal.

17. The Tribunal were therefore entirely satisfied that [the claimant] was aware of the potential consequences for her existing awards if she proceeded with her appeal.’
   
29.	One of the grounds raised before the Upper Tribunal was that the appellant had not been given a proper opportunity to consider her position before having to decide whether to proceed with her appeal or not.  Reliance was placed, in this context, upon the decision of the Upper Tribunal in BTC v Secretary of State for Work and Pensions ([2015] UKUT 0155 (AAC) ‘BTC’).  In that case, the appellant had been awarded the mobility component of PIP but not the daily living component.  She challenged the decision before the First-tier Tribunal which decided, after discussing its powers and the appellant’s options with her, to remove the entitlement to the mobility component.  At paragraphs 7 and 8 of his decision, the Upper Tribunal Judge stated:

‘7. However, the point I want to make is this.  A number of disability living allowance decisions have drawn attention to the pitfalls of tribunals making decisions which are less favourable to a claimant than the decision under appeal.  Even if the issue which the tribunal takes it upon itself to consider is one which is raised by the appeal (which it was in this case) and the claimant is given an adequate opportunity of considering whether to proceed the appeal, the claimant will not have had advance notice of the issue, as would be the case if the Secretary of State had been required to give grounds for opposing the appeal under Rule 24(2)(e) of the Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008.  In R(IB) 2/2004 it was held that a claimant had to be given sufficient notice to enable the claimant to prepare his or her case on the new issue and, if the issue is not dealt with in the submission to the tribunal, it may be extremely difficult for the tribunal to give the claimant sufficient notice of the issue without appearing to compromise its independence.  In CDLA/884/2008 it was said:

“Tribunals need to be aware of the dangers of being both prosecutor and judge, one of which is the risk of making errors unprompted by the parties.  Such errors are too common and are contributing significantly to the caseload of the Commissioners  There are other risks in being both prosecutor and judge.  The most obvious is that there can be a perception that the tribunal has prejudged the case, a tribunal is in a difficult position.  If it gives the claimant too robust a warning at the beginning of the hearing, it runs the risk of giving the impression of having prejudged the case.  If it does not give such a robust warning, the warning may not adequately convey to the claimant the case he or she needs to consider resisting with the consequence that a decision not to withdraw the appeal, or not to ask for an adjournment, is not fully informed.  This is a powerful reason for tribunals refraining from making decisions less favourable to claimants than the decisions being challenged, except in the most obvious cases (e.g. where the evidence is overwhelming or the facts are not in dispute and no element of judgment is involved or where the law has been misapplied by the Secretary of State) or after an appropriate adjournment.”

8. Speaking for myself, I can see no reason why the tribunal in this case should have wanted to consider whether the award of mobility component was over-generous  the tribunal’s decision to consider on its own initiative whether to remove mobility component led to precisely the kind of unprompted error envisaged in CDLA/884/2008.’  

30.	Returning to MW, in relation to the argument that the appellant had not been given a proper opportunity to consider her position before having to decide whether to proceed with her appeal or not, the Upper Tribunal Judge stated, at paragraph 16:

‘16.That, then, only leaves the new ground to which I have referred above.  I do not disagree at all with what was said in BTC, and in which the Upper Tribunal had warned of the dangers stemming from tribunals raising issues not previously raised by the parties and from failing to make new concerns clear such that they could be properly responded to.  The claimant’s representative argues that, in this case and following BTC, the tribunal was obliged to adjourn with directions warning of the specific concerns it had and which it thought might lead to the award being reduced or extinguished and so, I suppose, affording the claimant time to consider her position without pressure.  It does, though, have to be borne in mind that that was a case which involved a claimant who did not have competent representation or, indeed it would seem, representation at all.  Here though the claimant had a competent representative from a reputable specialist organisation.  If it was felt that the claimant needed a more detailed explanation as to what was in the mind of the tribunal her representative could have invited the tribunal to give such an explanation but there is no indication or contention that such was done.  If it was considered that fairness demanded an adjournment to a different date then, again, an application could have been made but none was made.  Had the claimant not been represented the situation, and indeed my decision, might have been different but, of course, had that been so the tribunal might have dealt with matters differently anyway.  A tribunal is, in my judgment, perfectly entitled, in general terms, to have confidence in a competent representative and to assume, where appropriate, that if an application which could have been made is not made, then an informed view has been taken not to do so.  Much will turn on the particular circumstances but here the claimant was aware of the risk she was taking, she had competent representation, she was given a chance to consult with her representative, no further clarification as to the tribunal’s concerns was sought and no adjournment request was made.  Against that background, whilst the tribunal did not have to proceed in the way that it did, it was open to it to do so.  Accordingly, notwithstanding what is said in BTC, it did not err in law.
 
31.	The principles in MW and BTC were in the context of PIP but they are applicable, in my view, to any case where there is an appeal against a decision which incorporates an existing entitlement.  I would add, in addition, however, that in C15/08-09 (DLA) there were aspects of the decision in CDLA/884/2008, which was relied upon in BTC, with which I disagreed. 

32.	Applying the principles in MW, it is my view that the appeal tribunal was entitled to have had assurance in the experience and expertise of the appellant’s representative and that both he and the appellant had taken an informed view not to make an application for an adjournment, either in advance of the oral hearing or during the course of the hearing itself, for the purposes of the appellant considering his position.  

33.	The appellant has raised an additional issue, however, which is that he was unaware that he could withdraw his appeal during the course of the hearing and after it had commenced and that he did not also know that he could have sought an adjournment of the hearing.  He stated that had he been aware of these options he would have exercised them.  That raises the question as to whether the appeal tribunal was under a duty to inform the appellant, at the outset of the appeal tribunal hearing, of both of these options.  I would state that I could envisage a situation where a wider statement of an appellant’s options might be necessary.  I am clear, however, that that is not the case here.  Having heard from and seen the appellant, it is evident that he is an intelligent and articulate person.  During the course of the hearing it had occurred to him that things were not ‘going well’ as he put it.  It could and should have occurred to him that he could alert and consult with his representative to further determine his options.  Equally, his experienced representative could and should have been alert to what was occurring. 

34.	Accordingly I do not agree that the decision of the appeal tribunal was in error of law on the basis of the ground on which leave to appeal was granted.  I would add, for the appellant’s information, that the role of the Department in proceedings before the Social Security Commissioner is to serve as amicus curiae.  That role involves making submissions in connection with all of the issues arising in the proceedings and, where necessary, making concessions in favour of the applicant or appellant where such are appropriate.  The Social Security Commissioner, while always welcoming the submissions made by the Department, is not bound by them.

35.	I turn to the submissions made by the appellant in connection with the appeal tribunal’s assessment of the medical evidence.  For the most part this centred on whether the appeal tribunal had before it a specific report from a Mr PN, dated 14 February 2014, and how the appeal tribunal weighed and assessed that evidence.  Further, the appellant has made more general submissions about the appeal tribunal’s assessment of the available medical evidence.

36.	In the record of proceedings for the appeal tribunal hearing and in the statement of reasons for the appeal tribunal’s decision, there is no specific reference to a report from Mr PN, dated 14 February 2014. It is clear that the appellant did not adduce this discrete report as a specific item of evidence before the appeal tribunal. He relies, rather, on a submission that it should have been in his GP notes and records and that, given its significance, if it was in the notes and records, then the appeal tribunal ought to have considered it and made clear in the statement of reasons for its decision on how the report was assessed. 

37.	It is axiomatic that an appeal tribunal cannot be faulted for failing to consider evidence that was not before it.  Accordingly, if the report to which the appellant has made specific reference was not either adduced as a discrete item of evidence or was not in the appellant’s GP records, then the appeal tribunal cannot be faulted for failing to take it into account.

38.	Although the appellant was honest and credible in his oral evidence to me, I have found his account as whether he and/or his representative alerted the appeal tribunal to the specificity of this report to be somewhat vague.  On the one hand he stated that the appeal tribunal was so alerted and on the other he made a more general reference to the appeal tribunal being referred to more general supportive medical evidence.  He was also unclear as to whether the appeal tribunal undertook a specific search through his GP notes and records and what the outcome of that search was.  In this regard, I have noted that there is no reference, in what is otherwise a comprehensive and detailed record of proceedings, to a specific submission concerning the relevant report and whether or not it was before the appeal tribunal.

39.	In any event, I have already noted that the appellant is an intelligent and articulate person and had the benefit of an experienced representative.  In those circumstances, the appellant could have been more proactive in ensuring that the appeal tribunal was alerted to specific medical evidence which he considered to be of significance and on which he wished to rely. It was only after he had received an adverse appeal tribunal decision that the appellant decided to act.      

40.	As was noted above, the appellant has also challenged, in more general terms the appeal tribunal’s assessment of the medical evidence.  In Quinn v Department for Social Development ([2004] NICA 22), the Court of Appeal emphasised that assessment of evidence and fact-finding role is one for the appeal tribunal. At paragraph 29, the Court stated:

‘It is clear that the Tribunal considered Dr Manley’s report since they refer to it in their findings and describe it as being less than helpful.  The challenge to the Tribunal’s attitude to the report cannot proceed on the basis that they ignored it; rather it must be either that they misconstrued it or they failed to give it sufficient weight.  As to the latter of these two possibilities it is of course to be remembered that a view of the facts reached by a tribunal can only be interfered with by the Court of Appeal in limited and well-defined circumstances.  

Carswell LCJ described those circumstances in Chief Constable of the RUC v Sergeant A [2000] NI 261 at 273f as follows: -
 
“A tribunal is entitled to draw its own inferences and reach its own conclusions, and however profoundly the appellate court may disagree with its view of the facts it will not upset its 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 (Fire Brigades Union v Fraser [1998] IRLR 697 at 699, per Lord Sutherland); 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: Edwards (Inspector of Taxes) v Bairstow [1956] AC 14, per Viscount Simonds at 29 and Lord Radcliffe at 36.” 

41.	At paragraph 4 of R(DLA) 3/04, Mrs Commissioner Brown had made similar remarks: 

‘I should state at the outset that the weight to be given to any evidence is completely a matter for the Tribunal.   The weight to be given to an item of evidence is a matter of fact.   That means that I can disturb it only if that conclusion as to weight is one which no reasonable Tribunal could have reached.   Having examined Dr M...’s report I do not consider that the Tribunal’s conclusions as to the weight to be given to it are such as no reasonable Tribunal could have reached.’

42.	I am also satisfied, for the reasons which have been set out by Mr Culbert in his initial written observations, that contrary to the assertions which have been made by the appellant, the appeal tribunal has undertaken a rigorous and rational assessment of all of the evidence before it.  The appeal tribunal has given a sufficient explanation of its assessment of the evidence, setting out why it took the particular view of the evidence which it did.  Any conflict in the evidence before the appeal tribunal has been clearly resolved and explained.  The appeal tribunal was entitled to rely on the expertise of the MQPM to provide an interpretation of the medical evidence which was before it. 

43.	I do not accept, as has been argued by the appellant, that the appeal tribunal has rejected evidence provided by his GP.  The appellant has referred to a response made by his GP in a Factual Report dated 5 February 2015 to a question about the appellant’s ability to get around.  The GP has recorded ‘daily pain’ in answer to the relevant question. Looking at the statement of reasons for the appeal tribunal’s decision, the appeal tribunal accepted that the appellant suffered pain including referred pain.  What the appeal tribunal did not accept was that the appellant was, for the purposes of entitlement to the higher rate of the mobility component of DLA, virtually unable to walk. It applied the correct legal principles in arriving at that conclusion.  It is important to note that the appeal tribunal found certain inconsistences in the appellant’s own evidence.

44.	For these reasons, therefore, I cannot agree that the decision of the appeal tribunal was in error of law on the basis of the grounds submitted by the appellant. 

	Disposal

45.	The decision of the appeal tribunal dated 2 September 2015 is not in error of law.  Accordingly the appeal to the Social Security Commissioner does not succeed.  The decision of the appeal tribunal that the appellant is entitled to the lowest rate of the care component of DLA from 22 February 2015 to 21 February 2017 but is not entitled to either rate of the mobility component from and including 22 February 2015 is confirmed.

(signed): K Mullan

Chief Commissioner

3 February 2017