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You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> [2004] UKSSCSC CSDLA_606_2003 (13 January 2004) URL: http://www.bailii.org/uk/cases/UKSSCSC/2004/CSDLA_606_2003.html Cite as: [2004] UKSSCSC CSDLA_606_2003 |
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[2004] UKSSCSC CSDLA_606_2003 (13 January 2004)
THE SOCIAL SECURITY COMMISSIONERS
Commissioner's Case No: CSDLA/606/03
SOCIAL SECURITY ACT 1998
APPEAL FROM THE APPEAL TRIBUNAL UPON A QUESTION OF LAW
COMMISSIONER: L T PARKER
Appellant: Respondent: Secretary of State
Tribunal: Dundee Tribunal Case No:
DECISION OF SOCIAL SECURITY COMMISSIONER
Background
"Although she is able to sit to prepare vegetables, she has extreme difficulty coping with pans such as lifting them on/off the hob, draining potatoes, etc, due to balance problems. She also has difficulty bending to put food in/out the oven. She finds it hazardous in the kitchen and recently fell, having lost her balance, and dropped a Pyrex jug full of baked beans on the floor. Her husband therefore has to undertake most of the cooking."
"Parties introduced.
offer put to the appellant just to reinstate higher mobility
told to think about it. 10 mins –
put to appellant risk of losing all if goes ahead.
told to think again. 5 mins later –
has decided will accept offer"
The tribunal decision
"The Appellant who is aged 50 suffers from Left Sided Bursitis and Chronic Achilles Tendonitis, osteoarthritis of the left heel and the left knee and hypertension. She also wears two hearing aids. Surgery has not improved her tendonitis, nor has physiotherapy. She has very little foot movement. She can walk 50-100 metres outside with some stops due to tendo-achilles pain. She is virtually unable to walk.
The Appellant has no care needs."
"The findings of the examining Medical Practitioner who saw the Appellant on 16th December, 2002 were accepted as to the Appellant's abilities and needs.
Prior to the commencement of the Appeal the Tribunal considered all the papers and formed the view that reinstatement of the award of the higher Mobility component would be appropriate. When the Appellant and her representative came into the Hearing Room it was put to them that the Tribunal would be prepared to reinstate that award but that if the Appellant wished to insist upon an award for the care component, the Appeal would have to be heard in all matters, including mobility, and that may result, after hearing evidence, in the Appellant not being awarded the Mobility Component at all and in being unsuccessful in the care component. It was explained to her that this was a risk she would have to take if she insisted on a Hearing relating to the care component as mobility would also then have to be considered.
The Appellant and her representative then had an opportunity to consider this offer in private. After some minutes, the Appellant's representative and Appellant returned and advised that the Appellant wanted to proceed. The Tribunal then explained the risks once again to the Appellant (the Tribunal by then, having seen the Appellant walk in and out of the Hearing Room on several occasions with little apparent difficulty). The Appellant's representative then discussed the matter in private with the Appellant again and she agreed subsequently to accept the offer of higher rate mobility being reinstated. The Tribunal did not consider that the appellant had care needs which would enable her to claim any level of the care component."
Appeal to the Commissioner
"I submit that Article 6(1) of the European Convention on Human Rights is engaged. That provides that everyone is entitled to a fair and public hearing by an independent and impartial tribunal in the determination of their civil rights. In the conjoined decisions CIB/2751/02 and CS/3202/02 the Commissioner said:
'Article 6(1) provides as relevant: "everyone is entitled to a fair and public hearing …" The European Court of Human Rights has indicated that the effect of Article 6(1):
"is, inter alia, to place the 'tribunal' under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties, without prejudice to its assessment of whether they are relevant to its decision" (Kraska v Switzerland, (1994) 18 EHRR 188, paragraph 30)."'
I submit that the tribunal did not undertake a proper examination of the evidence, as is made apparent by reference in the reasons to the tribunal having observed the claimant go in and out of the Hearing Room on several occasions with little apparent difficulty. The language of the reasons also appears indicative, in my submission, of the tribunal having prejudged the case and preferring no obstruction to their deciding it with no personal input from the claimant or her representative. At one point they referred to the consequences if the claimant 'wished to insist upon an award for the care component'. The impression created for the claimant of a tribunal wanting to clear the case as quickly as possible ….. is not without foundation, in my submission. In conclusion I submit that the claimant was not allowed a fair hearing, and the tribunal's reasons for allowing higher rate mobility component were as inadequate as were their reasons for disallowing care component."
My conclusion and reasons
Lack of a fair hearing
Inadequate reasons
Summary
(signed)
L T PARKER
Commissioner
Date: 13 January 2004