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[2005] UKSSCSC CIB_382_2005 (25 May 2005)

PLH Commissioner's File: CIB 0382/05

SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF APPEAL TRIBUNAL

ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for:	Incapacity Credits
Appeal Tribunal:	Rochdale
Tribunal Case Ref	:
Tribunal date:	9 November 2004
Reasons issued:	6 December 2004

1. The decision of the Rochdale tribunal sitting on 9 November 2004 is conceded to have been erroneous in law for the reason identified in the written submission of Mr D Scholefield on behalf of the Secretary of State dated 7 April 2005 at pages 72-74. I accept that concession as rightly made, set aside the tribunal decision and in accordance with section 14(8)(b) Social Security Act 1998 remit the case for rehearing and redetermination by a differently constituted tribunal; the claimant's representative Mr S Ahmed, of Oldham MBC welfare rights office, not objecting to that course.
2. As is evident from the grounds of appeal and the chairman's statement of reasons there was a division of opinion in this case between the medical member and the chairman of the tribunal on whether it the claimant should have been awarded points under up to four descriptors for the effects of dizziness caused by certain medication. As Mr Scholefield points out, however, the extent and effect of the disagreement is not fully explained in the statement of reasons; and because what he says is in my view an accurate and admirably well expressed summary of the legal position I will quote the main part of it in full:

"6. It is recorded that the medical member said that he would have awarded additional points in the areas selected by the claimant of sitting, rising, bending and standing, but this is not to say that he would have allowed sufficient points for the appeal to be allowed had his view held sway.

7. That leads me somewhat reluctantly to the conclusion that the statement of reasons is deficient because the appellant is left in the dark as to precisely why his appeal has failed. It cannot be fully understood whether the dissent could have made any difference to the outcome and places doubt on whether the overruling of the medical member was an arguable error of law in this case. I therefore submit that the decision of the tribunal should be set aside.

8. On this point I would argue that the fact of a Chairman overruling a medical member on a medical point would not, of itself, mean that the decision of the tribunal is erroneous in law. Despite their differing qualifications panel members are not assigned any specific role in the legislation in deciding the appeal which is decided by both members together. For example, medical questions are not specified as being for a medical member to determine and, similarly, legal questions are not the sole preserve of the legal member. This is of course subject to the decision being contestable on the usual grounds of law so that, for example, it could be arguable that a decision is one that could not reasonably be made on the evidence before the tribunal.

9. In this case the Chairman was entitled to reject the evidence of the claimant that he had the difficulties he asserted in relation to the stated activities; has given reasons for rejecting it; and has also thus explained why he did not agree with the medical member. Therefore, aside from the point made in paragraph 7 above, I submit that the decision is not erroneous in law.

10. I do not support the other ground advanced in this appeal concerning an interpreter not being arranged, in the light of the response of the Chairman when granting leave to appeal (page 68): ".. the claimant's representative offered to interpret and wished to proceed on the day of the hearing." I submit that in view of that concession or waiver the tribunal was entitled to go ahead and there was no breach of the requirement to have a fair hearing."

3. I entirely agree with those submissions, including the final point: even apart from any express waiver there can be no question of a breach of natural justice or the right to a fair hearing where, as here, the claimant is represented throughout the hearing by a competent representative and gives his evidence without apparent difficulty, and the hearing proceeded without objection from him or on his behalf.
4. The appeal is thus allowed on the first ground only, and the case remitted for rehearing accordingly.

(Signed)

P L Howell

Commissioner

25 May 2005