1. IntroductionIf you have not used this pack before please go to the introduction first.
Back to digests of commissioner's decisions and case law.
1. Introduction
2. Appeals to Commissioner
3. Claims
4. Decisions, Revisions and Supersessions
5. Disability Discrimination Act
6. Error of Law
7. Failure to disclose
8. Fair hearing
9. Human rights
10. Oral or paper hearing
11. Order of precedence of decisions
12. Postponements and adjournments
13. Representative's role
14. Res Judicata
15. Statement of reasons and record of proceedings
16. Transitional Rules
17. Tribunal function and role of members
1. IntroductionThis is a regularly updated digest of summaries of past case law and commissioners decisions related to adjudication issues. You can search this web page in internet explorer by selecting "Find" from the "Edit" menu.
Should you need to get hold of a copy of any of the decisions described in these packs please see our Finding the Law factsheet.
You may also wish to download our other digests of case law available at www.disabilityalliance.org/digest.htm.
In CH/3631/2006 the claimant died after his appeal had been heard and the local authority sought to take the appeal to commissioners.
Regulation 21 of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001 allows a relevant authority to appoint someone to lodge an appeal in the place of the deceased but regulation 1(2) of the same regulations states that "appeal" means an appeal to an appeal tribunal not to a commissioner.
There is no equivalent rule in the Social Security Commissioners (Procedure) Regulations 1999 so following R(S)7/56, R(I) 2/83, R(I)2/83, R(SB)25/84), R(SB) 8/88 and R(IS) 6/01 the case is abated and does not proceed.
CDLA/1389/1997* (74/98) states that the absence of a record of tribunal proceedings is itself an error of law if a commissioner needs them in order to decide if there was an error of law in the actual proceedings. See also CSDLA/500/2007 and CSDLA/524/2007 in section 15. Statement of reasons and record of proceedings.
CDLA/5574/2002 states that a commissioner does not require statements from tribunal members when deciding breaches of natural justice.
In CSDLA/101/2000, following reg 22(2) Commissioner’s Procedures Regs 1987 (now revoked and replaced by reg 28(2) Commissioner’s Procedures Regs 1999) a tribunal cannot rely on directions made by a commissioner under reg 22(2) which do not contain reasons since there is insufficient explanation for the conclusion the commissioner made. See also R(DLA)5/01 (formerly CSDLA/646/1999).
CIB/2949/2005 states that section 13(3) compels the tribunal chairman to set aside a decision where "each of the principal parties to the case expresses the view that the decision was erroneous in point of law". This was true in this case but each of the parties made separate submissions and by the time the second was received the matter was before the commissioner. Under section 14(7) the commissioner could have set aside the decision but because one submission was earlier opted to use section 14(8) which allowed him to substitute his own decision.
CSDLA/1207/2000* (19/01) states that reg 8(3) of Social Security Commissioner’s (Procedure) Regulations 1999 states that a document - posted, faxed or emailed - is effective from the date it is sent. Establishing proof that something was sent on a particular date lies with the sender.
CI/2000/2004 says that an appeal to commissioner made by email counts as a notification in writing.
In CSDLA/551/1999* (17/00) a statement of reasons was requested orally at the appeal but the summary decision stated “The appeal fails, this is a full decision.” Tribunal had erred in law in failing to provide a full statement.
CIB/227/2000* (51/01) states that where a different chairperson to the one who chaired the tribunal grants leave to appeal to a commissioner, full reasons should be given.
CSDLA/536/1999* (16/00) states that regulation 10 (2)(b) Social Security Commissioner’s Procedure Regulations 1999, requires an application to appeal to be accompanied by a statement of reasons. Commissioner decided that application might be allowed under regulation 27 Social Security Commissioner’s Procedure Regulations 1999 which state that a commissioner may waive any irregularity resulting from a failure to comply with the requirements of the regulations.
See also CSIB/257/1999 which states that under regs 3 and 4 SS Commissioner’s (Procedure) Regs 1999 an application for leave to appeal to commissioner can only be allowed once the chair has actually refused leave to appeal. See also CIB/4791/2001 (paragraph 13).
CS/1753/2000* (23/01) says that it is undesirable for a chair of a tribunal whose decision has been set aside to consider an application for leave to appeal against the decision of the tribunal who reheard this set aside appeal.
Secretary of State for Work and Pensions v Morina and Borrowdale [2007], reported as R(IS)6/07 states that decisions where an appeal to a tribunal is refused by a legally qualified panel member (LQPM) are not to be regarded as decisions of appeal tribunals and are not “decisions” appealable to a Commissioner under section 14(1) of the Social Security Act 1998.
R(IB)4/02 (CIB/3937/2000) is concerned with applications to Commissioner without a written statement but chiefly discusses time limits for application in relation to regs 53 and 54 of Social Security and Child Support (Decisions and Appeals) Regulations 1999. CIB/4791/2001 discusses time limits for application in relation to reg 58.
In CI/2000/2004 a claimant with RSI enquired about claiming IIDB but was informed over the telephone that she would not qualify and that she would not be sent a claim form. She tried to argue that the failure to supply a form under regulation 4(5) of the Social Security (Claims and Payments) Regulations 1987 amounted to official error, preventing her from making a claim in writing under regulation 4(1) of the same regulations. However failure to send a claim form did not prevent the claimant from making an application in writing by letter, which would also satisfy regulation 4(1). The assessment over the phone did not amount to a claim made in writing (if this was a case of misdirection the proper course of action is to claim compensation).
CIS/624/2006 is a decision of a tribunal of commissioners which discussed whether, when allowing an appeal against an ‘outcome’ decision a tribunal was always bound to substitute another ‘outcome’ decision where a new issue was raised. The claimant has asked leave to appeal to the Court of Session.
It was held that a tribunal must not ignore an issue that is clearly apparent from the evidence but is not bound to make a decision on every issue raised by the appeal if there is a more appropriate way of dealing with them.
"When an appeal against an outcome decision raises one issue on which the appeal is allowed but it is necessary to deal with a further issue before another outcome decision is substituted, a tribunal may set aside the original outcome decision without substituting another outcome decision, provided it deals with the original issue raised by the appeal and substitutes a decision on that issue.
The Secretary of State must then consider the new issue and decide what outcome decision to give. In that outcome decision, he must give effect to the tribunal's decision on the original issue unless, at the time he makes the outcome decision, he is satisfied that there are grounds on which to supersede the tribunal's decision so as, for instance, to take account of any changes of circumstances that have occurred since he made the decision that was the subject of the appeal to the tribunal."
The new decision made by the Secretary of State would be an outcome decision which could be appealed by the claimant if necessary. The commissioners were also asked by the Secretary of State to give guidance to tribunals.
1. In order to assist tribunals, the Secretary of State's submission to a tribunal should indicate whether it is considered that, if the appeal is allowed, there are any outstanding issues that need further consideration and whether the Secretary of State wishes the tribunal to deal with them.
2. Where a tribunal, having dealt with the issues originally raised in an appeal, is not able immediately to give an outcome decision, it must decide whether to adjourn or whether to remit the question of entitlement to the Secretary of State if he would be in a better position to decide the issue and to seek further information from the claimant.
3. The tribunal's decision, as recorded on the decision notice issued at the conclusion of the hearing, should explicitly record what has and has not been decided and in particular, should make it absolutely clear whether the tribunal has made an outcome decision (subject, in some cases, to the precise amount being calculated by the Secretary of State) or has remitted the final decision on entitlement to the Secretary of State.
R(S)/13/54 & R(S)13/52 states that at the beginning of the claim, the burden of proof lies with the claimant.
R(S)/3/90 states that at the review stage, it is the decision maker who must show that the claimant is not entitled. CIB/378/2001* (72/01) states that the Secretary of State must establish grounds for making a supersession. If a claimant states that there has been no change then the tribunal should consider the earlier medical report. See also CIB/2338/2000* and CIB/1509/2004.
In CSDLA/637/2006 a claim that a claimant's condition had improved and her needs reduced was rejected because the Secretary of State had failed to provide comparative evidence to establish that a tribunal had erred in maintaining an award - it is necessary to compare the circumstances as they were at the time of the award with those at the time of the supersession. See also CSDLA/822/2006.
CDLA/1418/2004 states that the Secretary of State has the power to serve notice requiring a tribunal to stay an appeal to await the outcome of another case or to decide a case against a claimant following the result of another appeal (in this case Moyna). Guidance issued by the President of the Appeals Service is not similarly binding.
CDLA/2878/2000* (61/01) states that tribunals must not exercise hindsight when making a decision. What matters is what was known at the time. In this case the issue concerned whether the claimant was likely to continue to satisfy the disability condition for six months. See also CIB/3126/2002.
CDLA/1400/1997 reaffirms that tribunal 'need not' consider an unappealed component unless 'evidence of substance' was raised in relation to it. If the tribunal proposes to deal with an unappealed component the claimant should be put on notice. See CDLA/2929/1995 which discusses this point. See also R(DLA)1/1995 which states tribunals should look at both components if there was evidence and CDLA/180/1994 which states that tribunals need not look at both components. CSDLA/169/1994 states that there must be something of "some substance" to indicate an error in the award before the tribunal should look at an unappealed component. CSDLA/362/1998 states that the decision maker need not look at both awards where only one is disputed but should inform the claimant of any intention to review the other component and provide him or her with the opportunity to comment on any evidence obtained.
CDLA/1000/2001* (118/01) states that tribunals are entitled to consider the whole of an award, including life awards. Reaffirms that tribunal cannot determine issues beyond the date of the decision.
In CSIB/1268/2000 the claimant had a medical which indicated insufficient points but the case was not referred to a decision maker for a supersession (which requires grounds) but was instead referred for a decision. Tribunal should have allowed appeal because this decision was “inept”. The tribunal could not correct this decision themselves because it was “deficient in substance”.
CSIB/51/2001* (100/01) states that where a secretary of state's decision appears to be defective, a tribunal cannot automatically find claimant entitled to IB. Tribunal has a duty to correct any deficiencies in a decision and consider merits of case. Makes reference to to . See also CSIS/137/1994 (para 47(1) of the appendix) and CSIB/1266/2000.
CDLA/4222/2004 discusses the correct approach when considering a situation where a superseding decision was held to be wrong and questions were raised about the original decision.
CIB/2338/2000* (50/01) states that findings of fact, such as those related to the personal capability assessment are determinations. Determinations are used to make decisions. Determinations cannot be appealed, decisions can.
Where there is an outcome decision (a change that affects the claimant's pocket) arising from a determination it can be appealed against. Previous assessments may need to be considered by a tribunal where a claimant states their condition is unchanged or where it fluctuates.
See CIB/3667/2000 and CIB/1972/2000 which held that decision makers can supersede an earlier award if an adverse medical report is received but that they may need to make a comparison with an earlier assessment if the claimant appeals or asks for a review. Also restated in CIB/3179/2000* (135/01) and CIB/3985/2001. See also CIB/378/2001 and CIB/3899/1997.
CSDLA/765/2004 states that grounds for supersession must first be established and then conditions for entitlement investigated.
CDLA/2160/2003 states:
"There is all the difference in the world between a decision made on an incorrect factual basis (the correct ground) and one which somebody else looking at the same factual basis should have led to different assessment."
In CSDLA/251/2007 the decision maker removed an award on grounds of a mistake as to a material fact. The tribunal upheld this. Both erred because the decision was based on new evidence, which indicated a possible change of circumstance rather than an error of fact at the time of the original decision.
R(IB)2/04 (CIB/4751/2002, CDLA/4753/2002, CDLA/4939/2002, CDLA/5141/2002) is a massive 64 page decision by a tribunal of commissioners which analyses the jurisdiction of appeal tribunals and their powers in relation to revisions and supersessions.
The main conclusions are:
See also CDLA/1821/2003 below. See also CSDLA/612/2006, which refused to correct a poor decision and referred the case back to the Secretary of State to sort out.
CIB/1509/2004 say that new medical evidence authorises the supersession process but does not dictate its outcome, that being left to the decision-maker.
CDLA/9/2001* (131/01) states that tribunals cannot decide a case where no actual decision has been submitted in the papers. In this case it meant that no grounds for supersession were identified. See also CDLA/2795/2001* (135/01) CDLA/4977/2001and CDLA/2033/2001.
CDLA/557/2001* (142/01) states that a tribunal adjournment cannot be appealed to commissioner unless it can be established that it is a 'final' decision. This is defined as "a decision which disposes of all the substantive points which were before the tribunal, or makes some interim disposal of the case which either makes it more than likely that the case will be disposed of finally in a particular way or leaves one of the parties with no means of ensuring that there will be a final disposal of the case, or leaves one of the parties at the risk of an injustice". Other case law on this issue is discussed in this decision.
In CIS/4434/2004 it was determined that a couple was living together as husband and wife. However the tribunal had no powers to decide on the resultant "assumed" overpayment because no decision had actually been made concerning the entitlement of the original claimant. Cites R(IB)7/04 (formerly CIB/2836/2002) which deals with decisions that are "so fundamentally flawed as to be inconsistent with any proper exercise of a legal power" and beyond the remedy of a tribunal.
CDLA/3688/2001 states that when considering the date and type of decision (revision or supervision) any time spent on preliminary investigations is ignored.
CIS/4/2003, a decision of a tribunal of commissioners, decided that, generally, there was no right of appeal against a refusal to revise on grounds of official error. This is because the right of appeal is against the decision as originally made or revised. There is no free-standing right to appeal against a revision. Thus in the case of a refusal to revise the claimant will have to appeal against the original decision which will often be impossible because they will be out of time. The only exceptions to this are where the revision is requested within the normal one-month period of the original decision (or following the 14 day extension) or where a late appeal is granted (which can only be allowed within thirteen months of the original decision).
CDLA/1821/2003 states that a tribunal has the power to replace a superseding decision with a decision revising the original decision but there is no power to revise a decision that the Secretary of State has already refused to revise. Regulation 6(3) and 3(5) Social Security and Child Support (Decisions and Appeals) Regulations1999 and CIB/4751/2002 allow a tribunal to revise on grounds of official error if the Secretary of State has failed to consider this.
In R(IB)1/05 (formerly CIB/790/2004) a claimant failed to provide medical evidence (certificates) and fell to be considered under the personal capability assessment. A relevant change of circumstances for the purposes of a supersession is the failure of a subsequent pca rather than failure to provide evidence.
R(A)1/89 states that where there is a renewal claim the decision maker should look at the medical evidence in the previous claim. Where this is not available he or she should defer their determination until that evidence has been seen otherwise an error of law will be “virtually inevitable”.
In CDLA/4032/2006 documents relating to a previous award were not available and a paper hearing was held because the claimant was too ill to attend. The claimant contended in writing that her condition had not changed or worsened. The tribunal did not accept this but failed to properly explain why. It was suggested that a domiciliary hearing should be considered by the new tribunal.
R(DLA)4/05 (CDLA/2751/2003, CDLA/3567/2003, CDLA/3725/2003) is a decision of a tribunal of commissioners, which states that tribunals can amend or disallow a decision between the date of that decision and the renewal date, such as in cases where the renewal form is returned early. See also CSA/248/2002, CDLA/3848/200, and CDLA/4708/2002.
R(M)1/96 states that where a renewal decision is less generous than a previous award the tribunal should indicate that it is aware of this.
"..if the reason for differing from the previous decision does not appear or cannot be inferred with reasonable clarity from the tribunal's record, it will normally follow in my view that they will be…in error of law." (from para 16)
CDLA/3461/2006 confirms that section 72(2)(b)(i) of the Social Security Contributions and Benefits Act 1992, which states that a condition must continue for a period of at least six months applies to renewal claims.
Wood v Secretary of State for Work and Pensions (2003) (R(DLA)1/2003) held that there is a right of appeal against a decision to supersede (i.e. change) or refuse to supersede a DLA decision unless an application for supersession is obviously hopeless, i.e. there are no conceivable grounds for supersession. This decision overrules R(DLA)6/02. See also CDLA/2115/2003, CSDLA/1068/2001 and CDLA/3875/2001 which discusses an error in law where the Secretary of State failed to identify threshold criterion when superseding a decision. See also CI/1132/2000 and the major decision R(IB)2/04.
In R(DLA)2/04 (CDLA/2968/2003) a DLA decision went to appeal and was lost. The claimant requested both a supersession of the tribunal decision and leave to appeal to commissioner, (which was granted). The supersession subsequently went to tribunal and was dismissed. The commissioner in CDLA/4974/2002 referred the decision to another tribunal. This sets out rules for the treatment of such circumstances.
1. An application for supersession that results in a refusal to supersede the original decision does not terminate the period under consideration on an appeal against the original decision.
2. Live proceedings arising out of an application for supersession based on ignorance of, or a mistake as to, a material fact lapse when the decision to be superseded is set aside on appeal (provided that there is no further appeal in respect of the original decision.
3. Live proceedings arising out of an application for supersession based on a change of circumstances do not lapse when the decision to be superseded is set aside on appeal (but the application may have to be treated as an application for supersession of a different decision or, perhaps, as a new claim, depending on the circumstances.
CDLA/3831/2002 states that a tribunal was wrong to limit an award where the claimant is young but likely to satisfy this condition for a long (or lifelong) period.
CDLA/4331/2002 states that tribunals and decision-makers can take account of changes in circumstance when making a decision. This case concerned a girl who was under age 16 when the decision was made but who was about to become 16 (when the cooking test would apply).
CDLA/936/2004 states that the Disability Discrimination Act (DDA) does not impact on DLA law. The tests for DLA are more stringent than those for disability under the DDA. The DDA does apply in relation to service provision by the Appeals Service - such as ensuring the building is accessible - but redress would not normally be via the DDA.
E v Secretary of State for the Home Department [2004] states "that a mistake of fact giving rise to unfairness can be a mistake of law".
CDLA/1456/2002 states that errors in law arise when a “tribunal’s treatment of the factual evidence is so bizarre and irrational as to make the decision “perverse” in the legal sense”. It is not an error of law where two tribunals might legitimately reach differing conclusions as a result of the evidence but it would be if no reasonable tribunal could have reached the conclusion based on the evidence.
R(A)1/72 states that there is an error of law if:
1. The decision contains a false statement about the law e.g. they got the law wrong or misinterpreted it.
2. The decision made is supported by no evidence
3. The facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination in question (a perverse decision).
4. There has been a breach of natural justice, i.e. the procedure followed leads to unfairness.
5. The tribunal did not give proper findings of fact or provide adequate reasons for its decision. There must be sufficient reasons so that you can see why it reached the decision it did.
“The minimum requirement must at least be that the claimant, looking at the decision, should be able to discern on the face of it why the evidence has failed to satisfy the authority”
See also R(I)14/75 which states that a decision would be wrong in law if it was in breach of the requirements of natural justice or failed to state adequate reasons.
CF/699/2005 concerned a parent's failure to notify her daughter's non-attendance at school.
"Applying the approach set out in CF/14643/1996 and above, the new Tribunal should first ask itself whether the claimant had actual knowledge of S's non-attendance at college, and if so, by what date. If it does not find that the claimant had actual knowledge, it should consider whether the claimant had grounds for suspicion and if so, whether it was reasonable for her to investigate her suspicions by contacting the College. Again it will need to identify the date by which any such grounds for suspicion arose." (Paragraph 28.)
R v Passmore 2007 states that if change in a person’s circumstances does not affect their entitlement to benefit there is no obligation to disclose. The case concerned a claimant who failed to disclose that he had formed a company, from which he received no income.
A number of decisions place a duty on the DWP to ensure that the claimant is informed that he or she is under an obligation to disclose relevant information (See B v Secretary of State for Work and Pensions [2005]). In CIB/3925/2003 a permitted work period was not recoverable because the DWP flyer/letter issued to claimants explaining the, then new, permitted work system was not specific enough and the claimant could not reasonably be expected to know he had a duty to inform. R(IB)4/05 and Hooper v Secretary of State for Work and Pensions (R(IB)4/07) follow this. See also CIB/912/2007.
Hinchy v Secretary of State for Work and Pensions [2005], a House of Lords decision a claimant is under a duty to inform the relevant office where a decision about one benefit may affect entitlement to another, such as in this case where the claimant lost her disability living allowance and failed to inform the income support department. You can find out more about this decision on our website at www.disabilityalliance.org/hinchy.htm.
R(SB)15/87 discusses failure to disclose at the appropriate office. It states that:
"26 …. the obligation is to disclose to a member or members of the staff of an office of the Department handling the transaction giving rise to the expenditure….
28 His duty is best fulfilled by disclosure to the local office where his claim is being handled, either in the claim form or otherwise in terms that make sufficient reference to his claim ….
…there can be other occasions when the duty can be fulfilled by disclosure elsewhere. This can happen, for instance, if an officer in another office of the Department of Health and Social Security or local unemployment benefit office accepts information in circumstances which make it reasonable for the claimant to think the matters disclosed will be passed on to the local office in question.
CDLA/2203/2007 states that even if a decision is flawed (in this case concerning the length of the award), there may still be a "causal link" established by a claimant's original misrepresentation, which would mean that an overpayement could be recoverable for the whole period in question.
Lloyds Bank plc v Waterhouse [1993] sets out the test for non est factum (something that is not the document someone thought it was).
In CIS/3846/2001 an illiterate claimant got his wife to complete his claim form and she failed to enter her pension details on it. Assuming she had done this he took the form to the DWP who, after briefly checking it, processed the claim, resulting in an overpayment. An argument of non es factum was rejected because the claimant failed to establish that the document was different from the one he thought he was signing. The error could have been remedied by getting his wife to read the contents of the form back to him. The commissioner also held that it was possible for a claimant to "have an innocent misrepresentation by omission" and discusses case law in relation to this.
B v Secretary of State for Work and Pensions [2005] ( R(IS)9/06) is a court of appeal decision which upholds the decision of a tribunal of commissioners (CIS/4348/2003) allowing the Secretary of State to recover overpaid benefit where a claimant failed to disclose a material fact whether or not that disclosure was "reasonably to be expected". You can find out more about this decision on our website at www.disabilityalliance.org/bvsec.htm.
CIB/849/2001* (112/01) was referred back to the tribunal because the claimant was not present at the hearing . The Commissioner felt that the appeal should have failed but that he might be in breach of article 6 of the Human Rights Act if he gave this decision.
CIB/2751/2002 (and CS/3202/2002) states that where a domiciliary hearing is requested the tribunal is under a duty under Article 6(1) of the Human Rights Act 1998 (the right to a fair hearing) to fully consider this. This means the issue should be discussed with the claimant or his or her representative. Where such a hearing is refused it implies that other solutions, such as adjournments for further medical evidence, should be sought. Also raises the question of what constitutes a domiciliary hearing (should it always be in the claimant’s home).
In CDLA/1350/2004 a domiciliary hearing could not be held in the claimant's home because the premises were both too small and unsafe. An alternative hearing was arranged at his doctor's surgery but his representative subsequently telephoned to say that the claimant would not be attending. The appeal failed because no submission was made to the tribunal stating that it was impossible for the claimant to attend this rescheduled hearing.
CIB/5227/1999* (34/01) states that it was a breach of natural justice to proceed with a paper hearing.
CDLA/2748/2002 states that tribunals must deal with any problems concerning poor standards of interpretation in order to ensure a fair hearing.
CIB/4533/1999* (36/01) states that it is not a breach of natural justice if a claimant misreads the date of hearing and attends on the wrong day or that the claimant's representative was not separately informed of this hearing (it was sufficient that the claimant was informed).
CIB/303/1999* (35/01) states that this constitutes a breach of natural justice.
The test for deciding perceived bias is outlined in Lawal v Northern Spirit Ltd [2003] and Porter v. Magill:
“The principle to be applied [for perceived bias] is that stated in Porter v. Magill, namely whether a fair-minded and informed observer, having considered the given facts, would conclude that there was a real possibility that the Tribunal was biased. Concretely, would such an observer consider that it was reasonably possible that the wing member may be subconsciously biased?”
In Lawal the House of Lords decided that if a barrister had previously sat with a member of a Tribunal on only one occasion that would be enough to give rise to a complaint of apparent bias.
Locabail ( UK ) Ltd v. Bayfield Properties Limited [1999] guards against any rigid rule when deciding bias.
“It would be dangerous and futile to attempt to find or list the factors which may or may not give rise to a real danger of bias. Everything will depend on the facts, which may include the nature of the issue to be decided …”
Gillies (AP) (Appellant) v. Secretary of State for Work and Pensions (Respondent) (Scotland) [2006]- reported as R(DLA)5/06 is a decision by the House of Lords which upholds a Scottish Court of Session decision that sees no bias in examining doctors sitting on tribunals.
“Having considered the factual circumstances we are of the view that the fact that Dr. A. carried out examinations and provided reports for the Benefits Agency as an EMP would not be sufficient to raise in the mind of the reasonable and well-informed observer an apprehension as to her impartiality as a member of a disability appeal tribunal. The mere fact that the tribunal would require to consider and assess reports by other doctors who acted as EMPs would not be such as to raise such an apprehension.”
You can find out more about this decision on our website at www.disabilityalliance.org/gillies.htm. See also the Cunningham decision below. In CSIB/502/2006 the claimant contended that a medical report was incorrect because no examination took place. The commissioner, citing Gillies, thought that there would be an “inherent unlikelihood” of the EMP failing to carry out the medical.
Secretary of State for Work and Pensions v. a decision of the Deputy Social Security Commissioner of 19th February 2003 in application for a Disability Living Allowance by Helen Cunningham 2004 - reported as R(DLA)7/04. This is a Scottish Court of Session case that considers the issue of bias of examining medical practitioners (EMPs) who also previously sat as panel members on appeal tribunals.
" If one expert is professionally known to the members, through having sat with them and advised them on how to approach medical evidence, I can see that there is a danger that they will apply their knowledge of him, consciously or unconsciously, to an assessment of the weight to be given to his evidence as against the other reports, where the doctor concerned might not be known to the tribunal."
You can find out more about this decision on our website at www.disabilityalliance.org/cunningham.htm. See also R(DLA)5/06.
R(DLA)3/07 (formerly CDLA/2379/2005) suggests that perceived bias should be ascertained from the facts of the case (see Locabail above).
In CDLA/1312/2006 the district chairman set aside a decision of an appeal tribunal and directed that the case be reheard by the same tribunal. It was argued by the claimant's representative that the claimant would not receive a fair hearing because of possible perceived bias and that all set asides should be referred to a differently constituted tribunal. Commissioner Mesher rejected this argument but advises the district chairman to err on the side of caution when considering the referral of a set aside back to the original tribunal.
Sinclair Roche and Temperley v Heard (2004) sets out the relevant factors to be taken into account when deciding to remit a case back to the original tribunal (in this case an employment appeals tribunal). The factors were:
CSDLA/855/1997 states that there is a possible error in law where a tribunal member shares a practice with the examining doctor – especially if there is a hint of financial interest (e.g. practice fees shared as partnership income).
In CSIB/85/2007 the decision of a tribunal to dismiss the claimant's appeal was set aside as she had been unable to attend the hearing due to a family crisis. A direction was issued that her appeal be heard by a differently constituted tribunal, but the second appeal had the same chair and the appeal failed. The claimant appealed to the commissioner on the grounds she had not received a fair hearing.
Had it been established that the claimant had the opportunity for waiver (to object to the chair hearing the case) the appeal would not succeed. In this case the terse record of proceedings does not provide a sufficient guarantee that the appellant's decision to agree to the same chairman continuing to hear her case was made freely. As a consequence, the commissioner finds there was no waiver by the claimant of any right to complain of bias. Following on from this the commissioner reluctantly concludes that in this case there was also real possibility of sub-conscious bias on the part of the tribunal chair.
CDLA/2259/2000* (55/00) questioned whether, under the Human Rights Act 1998, it was a violation of rights for an application for leave to appeal to have to be made to a chairman who had also made the original decision. Commissioner stated that this practice was authorised under s.14(10)(a) Social Security Act 1998 which may or may not be a violation but the commissioner can only consider errors of law. He or she has no power under s4 of the Human Rights Act to make a declaration of incompatibility.
R (RJM) v Secretary of State for Work and Pensions [2007] EWCA Civ 614 states that social security regulations, which disentitled a person without accommodation from receiving disability premium, do not discriminate against homeless persons under article 14 of the Convention for the Protection of Human Rights.
CIS/4003/2001 discusses Hockenjos v Secretary of State for Social Security (No 2) [2004] which held that this link was unlawful in the case of jobseeker's allowance but that this does not apply to income support because it is not within the scope of Directive 79/7.
In Stec & others v UK (formerly Hepple & others v UK) the Grand Chamber of the European Court of Human Rights (GCECHR) has ruled that non-contributory benefits are 'possessions' for the purposes of Article 1 of Protocol 1 of the European Convention on Human Rights (ECHR).
"Given the variety of funding methods, and the interlocking nature of benefits under most welfare systems, it appears increasingly artificial to hold that only benefits financed by contributions to a specific fund fall within the scope of Article 1 of Protocol No. 1. Moreover, to exclude benefits paid for out of general taxation would be to disregard the fact that many claimants under this latter type of system also contribute to its financing, through the payment of tax."
This supercedes CDLA/3908/2001 which stated that: DLA is not a possession as defined in Human Rights Law.
CDLA/4184/2004 states:
“The claimant was appealing against a refusal to award her more than the lower rate of the mobility component of disability living allowance. She appealed asking for a higher award. The tribunal dealt with the matter at a paper hearing and took away her existing entitlement. Regardless of the individual issues and merits of claims, it can never be right for a tribunal to consider reducing an existing entitlement to benefit without giving the claimant proper notice that this is being considered and offering the claimant a chance to be heard or to withdraw the appeal. Accordingly, a tribunal cannot do this at a first paper hearing following the usual paper hearing procedures unless – unusually – the matter has been raised in the written submissions. There was nothing in the papers here, so the tribunal’s procedure was clearly unfair and the decision must be set aside.”
See also CDLA/1480/2006 which covers the same issue.
CDLA/4225/2002 warns tribunals to "be particularly circumspect in reaching conclusions against a claimant and his consultant's clear evidence on the basis only of a look at the case on paper". The tribunal had ignored a consultant's report that said the claimant needed to use a wheelchair.
CIB/4193/2003 states that claimants should be given the opportunity to request an oral hearing where a case is to be reheard following a paper hearing. The reason advanced in this case was that clerks do not issue fresh directions following a set aside decision.
CDLA/3224/2001 states that a tribunal must hold an oral hearing if the Secretary of State has requested one.
R(I)12/75 states this, subject to the following provisions:
CDLA/2288/2007 suggests that there are certain situations where tribunals might be bound by the facts contained within previous caselaw, such as in appeals where previous case law contains evidence from experts which inarguably establishes a fact. The commissioner implies that a tribunal should not challenge this expert interpretation unless it can show that the consensus amongst the experts in the particular field has changed – presumably either by referring to publications in academic literature or specific evidence from another expert. However the commissioner was unwilling to define the limits within which factual precedent should operate.
C13/03-04(IB)(T) is a decision by a tribunal of commissioners that decided a tribunal was wrong to apply changes made in Great Britain (England, Scotland and Wales) to the “exceptional circumstances” rule following the Howker decision.
R(SB)1/90 states that Northern Ireland decisions are not binding on English, Scottish and Welsh decision making but may be persuasive case law in certain circumstances. See also R(IB)4/04 (formerly CIB/2873/2003).
CDLA/2277/2005 states that tribunals should not refer or be referred to decision starred numbers as they have no special status.
R(AF)1/07 ( CAF/3326/2005) states that commissioners, having taken over the statutory appeal that previously lay to a nominated judge, can regard previous decisions by nominated judges in the same way as they would the decision of an individual commissioner, without the complication of distinguishing between those decisions which are reported and those which aren't. However in practice a commissioner may accord “great respect to the views of distinguished nominated judges reached after full arguments from counsel” as well as to those decisions which have “been approved many times over the years”.
The decisions of both commissioners and nominated judges remain binding on PATs.
R(U)4/88 suggests that the new tribunal should beware of changing decisions that have established precedent but are not wholly fettered. Follows the principles laid down in the Practice Statement (Judicial Precedent) of the House of Lords (reported at [1966] 1 WLR 1234), and quoted from Chapman v. Goonvean and Rostowrack China Clay Co.,Ltd.,(1973).
CDLA/2429/2004 follows R(U)3/88, paragraph 7 of which states:
"As the tribunal is differently constituted from the earlier one, which part heard the case, it would be prudent for none of the members of the earlier tribunal to be included as part of the second tribunal. "
CDLA/5413/1999* (7/00) states that where a claimant has requested an oral hearing but does not attend, the best approach is for a tribunal to adjourn.
CDLA/6619/1999 says that an adjourned tribunal is not bound by the first tribunal’s opinion regarding the need for medical evidence.
CDLA/3680/1997* (59/98) states that the refusal to postpone a hearing is a breach of natural justice if the documents concerning this refusal are not before the tribunal.
CIB/16365/1996 is an example of breach of natural justice where the Tribunal should have adjourned the hearing to get advice and further medical evidence.
In CDLA/4389/2004 a claimant requested a postponement in writing. The clerk did not reply to this but instead passed the letter to the tribunal at the hearing where the postponement was refused. This was in breach of regulation 51 of the Social Security (Decisions and Appeals) Regulations 1999. The clerk should have first decided whether to grant a postponement and informed the claimant accordingly in writing. Cites CDLA/4462/2000.
CDLA/1465/2005 discussed the use of champertous arrangements - assisting with an appeal in return for a share of the arrears award. With regard to appeals this was considered acceptable practice and in line with the claimant's right to representation.
CDLA/3965/2001 discusses whether a representative can be excluded from future hearings on the grounds of past behaviour. States that it is arguably illegal to make a general ruling although a ban for behaviour during a specific hearing might be possible.
CIB/2058/2004 identifies three functions for a representative:
Cites a 1989 report for the Lord chancellor by Hazel and Yvette Genn on "The Effectiveness of Representation at Tribunals" which states that representation both increases the likelihood of success for a claimant's appeal and increases the accuracy of tribunal decision making. CS/1753/2000* (23/01) states that it is an error of law to seek to restrict someone assisting the claimant to a particular role - friend, representative - from the outset.
CDLA/1564/2004 states that tribunals can also ask claimants what advice they received when completing the claim pack.
CIB/1009/2004 states that there is no absolute right of adjournment if a claimant's representative is ill. Decisions on adjournment are a balancing exercise between "the substantial cost of a further hearing and the delay in the determination of another case whose place the adjourned hearing will take".
R v Social security Commissioner, ex parte Bibi states that there is no absolute right to representation, but there is an absolute right to be dealt with fairly. See also CIB/4667/2002 which states that a tribunal can proceed if the representative is absent providing the hearing is fairly conducted.
CSDLA/336/2000* (5/01) states that if a claimant’s representative fails to pursue a factual issue it is not part of the tribunals inquisitorial duty to remedy this. See also CDLA/1850/2001 (paragraph 6) CSA/993/2002 (paragraph 22) CSIB/160/2000 and C12/01-02(IB)* (149/01).
Both CSDLA/866/2002 (regarding failure to challenge an EMP report) place the onus on the claimant/representative to raise objections, where possible, during a tribunal hearing rather than after the event to a commissioner.
In CSIB/389/1998 the Commissioner held that because the claimant had a representative from a “responsible” Local Authority the tribunal was entitled to rely on that representative to put forward all relevant points.
CSDLA/2/2001* (109/01) states that representation before appeals must terminate when the tribunal gives its decision. Appeal to the commissioner is a separate process. Case involved a claimant with two sets of representatives, each unaware of the other's involvement.
CDLA/1274/1998 states that if a new claim has been made then the tribunal’s jurisdiction ends the day before the date of the new decision - this is the principle of res judicata.
In CA/2034/2004 the appeal was won but the award ended at the date of the new claim. However benefit was not immediately paid because the decision maker applied the six month test. See also CDLA/114/2004 where it was held that a Tribunal was correct in limiting itself to a decision period that ended when the claimant made a fresh claim.
In CA/4297/2004 the district chairman, instead of allowing or rejecting an appeal to commissioner or setting the decision aside, sent the papers to the tribunal chairman so that an additional paragraph of explanation for the decision could be added but there are no provisions in the regulations for additional, alternative or substitute statement of reasons to be issued. See also CIB/4090/1999* (28/00) where the decision maker was held to be wrong to enter into private correspondence with the chair after a tribunal decision had been made.
C28/00-01(IB)(T)* (6/01 ) is a decision of a Northern Ireland tribunal of commissioners. It states that it is good practice for tribunals to express findings on all factual matters in writing but it is not a universal requirement (eg where the assessment of evidence clearly indicates the tribunal’s view).
See also CI/1/96 which states that a Tribunal Chair is required to record a statement of reasons for their decision not for findings of fact. See also C32/00-01(IB)* (108/01), another decision of a Northern Ireland tribunal of commissioners which states that in IB cases the tribunal must decide what descriptors apply but is not required to give individual reasons for choosing them. In CDLA/561/2006 & CDLA/1032/2007 the statement of reasons of reasons was considered brief but adequate. The commissioner norted that whilst it may be good practice to provide more detailed reasons but it was not an error of law not to do so.
In CDLA/3093/2007 the tribunal erred, when refusing a request to adjourn, in not recording both the request and reason for refusal in the statement of reasons and record of proceedings.
CSIS/1009/2002 states that there is no free-standing error in law if a tribunal delays in issuing a statement of reasons. However substantial delay (see para 31) may form part of an infringement of Human Rights under article 6(1).
Carpenter v Secretary of State for Work and Pensions (2003) (R(IB)6/03) states that a refusal to adjourn an appeal is not a decision, it is a determination. There is no right to a statement of reasons for determinations under reg 53(4) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 as this regulation only applies to decisions. In some cases a refusal to adjourn could amount to an error of law and an unreasoned refusal to adjourn might, “without any recourse to the regulation” be unfair. However, obligation to give reasons for something other than the decision itself “will be relatively summary in nature”.
CDLA/572/2001* (105/01) reaffirms that there is an error in law if tribunal fails to include a statement of reasons from any dissenting tribunal member (reference reg 53(5) Social Security and Child Support (Decisions and Appeals) Regulations 1999).
See also CIB/382/2005 where the statement of reasons failed to explain adequately why the appeal failed as it contained a conflict of opinion between the two panel members over what to award.
Wordie Property Co Ltd v Secretary of State for Scotland 1984 states:
"The decision must, in short, leave the informed reader and the court in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it."
See also CDLA/3585/2006.
CSDLA/500/2007 & CSDLA/524/2007, a decision of a tribunal of social security commissioners, states that failure to supply a record of proceedings (in this case failure of the clerk to produce a legible copy) in breach of regulation 55 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991), is not of itself an error of law.
The decision upholds the approaches taken in CSSB/212/1987, CDLA/16902/1996, CIB/867/1997 and CDLA/1389/1997.
Insofar as they suggest otherwise, CDLA/4110/1997, CIB/3013/1997 and CA/3479/2000 should no longer be followed.
CIB/583/2001 looked at late application for a statement of reasons under regulation 54 of Social Security and Child Support (Decisions and Appeals) Regulations 1999 on the grounds that an application for a decision to be set aside has been refused. Disallowed because there had been no “determination that a decision shall not be set aside” within the meaning of 54(13). This was a late application to set aside. Under regulation 57 the legally qualified panel member has to consider both whether to allow the extension of the time limit and then whether to set the decision aside. There is no determination to set the decision aside if the application is rejected because it is out of time so regulation 54(130) is not satisfied.
In R(DLA)3/05 (CDLA/2149/2004) a request for a statement of reasons was made, via fax, to a dedicated (as opposed to casual) appeal venue that was periodically unused. Held that receipt of request by fax machine was what counted rather than actual receipt by a clerk. In the absence of instructions to the contrary it was correct to send the fax to the venue because it was dedicated.
R(DLA)2/98 states that this is not necessary unless there are two conflicting versions of the record.
CDLA/1685/2004 states that a chairman cannot set aside a decision without a statement of reasons. The statement could not be provided because notes of the tribunal's reasoning had been lost.
CIB/4497/1998* (1/00) states that failure of a tribunal to give adequate reasons on a summary decision is not an error in law. Advisors should always request a full statement of reasons. Also discussed (criticised) the use of standardised pro-forma decision notices (see also CDLA/3814/2002).
In CDLA/3814/2002 the tribunal was criticised for using standard wording in a decision notice which fails to adequately explain the reason for a decision. See also CIB/4497/1998.
Cases relevant to decisions and issues which predate the current appeals system.
CDLA/237/1997 states that evidence improperly obtained for the review (revision etc.) of life awards is not “subsequently available” to an appeal tribunal. See also CSDLA/121/1997, CSDLA/181/1999, CDLA/7482/1999* (17/01) and CDLA/5552/1999* (7/01) .
CIB/213/1999* (59/99) states that rules in operation at the time of the decision are still relevant regardless of any future change. This means that the old rules on decisions, reviews and appeals are still relevant after the changeover date (to revisions, supersessions and appeals) if they applied at the time of the decision and are at issue in an appeal. See also CIB/1442/1999, CDLA/7482/1999* (17/01) and CI/1327/1998.
Mongan v Department for Social Development (2005), a Northern Ireland Court of Appeal judgement examines the duty of a tribunal to consider the lower rate of the mobility component when this had not been raised as an issue. The appeal was against commissioner’s decision C21/02-03(DLA). The Court of Appeal found
See also Hooper v Secretary of State for Work and Pensions (R(IB)4/07) and CIB/14442/1996 and CIB/13565/1996.
In CTC/2090/2004 the claimant sought to claim child tax credit on the grounds that he was responsible for his child. The tribunal allowed his award. His divorced wife was already in receipt of CTC for the same child. HM Revenue and Customs appealed to the commissioner, arguing that the tribunal should have called the wife as a witness. Commissioner Bano sided with the tribunal.
Citing Kerr v Department for Social Development [2004] it was held that it was up to HM Revenue and Customs (the Board) to obtain information from the claimant's wife. The tribunal was fully entitled to assume that the Board were content for the appeal to be decided without this information when she wasn't contacted.
CDLA/878/1994 states that tribunals must have regard to all evidence, whether medical or not. See also CSDLA/169/1994 which states that tribunals should make their own independent findings on the evidence.
CSIB/324/1997 sets out the proper procedure for a Tribunal to adopt on personal capability assessment cases. Should consider and make findings of fact about:
CSIB/23/1996 states that the tribunal must make adequate findings of fact where descriptors are disputed. See also CSIB/459/1997 and CSIB/9/1996.
In CSDLA/606/2003 the tribunal disregarded the rules of common law justice and the convention of human rights by applying pressure on a claimant. It offered her the high rate mobility component, whilst at the same time expressing doubts about whether she was virtually unable to walk. In return for this concession the claimant agreed not to pursue an application for the care component which meant that it was not considered at all.
CSIB/377/2003 states that a tribunal is not under a duty to put every inference before the appellant for comment - for example references to the credibility of a claimant's evidence.
R(M)1/93 states that the role of the medical member is to use his or her specialist knowledge to interpret the evidence. CM/527/1992 disagrees with this stating that medical member's ability both as a skilled questioner and to elicit valuable evidence from the claimant puts his or her role beyond that of just interpreting evidence.
R(S)1/94 states that tribunals may draw on the specialist knowledge of panel members. At times the line between using knowledge and imparting evidence will be crossed. This will be erroneous in law if done in secret, “in the confines of the retiring room”, rather than during the hearing. If the knowledge constitutes evidence the claimant must be given the opportunity to comment on it.
R(DLA)8/06 (CDLA/145/2006) discusses the relevance of observations (how someone walks etc.) in terms of their reliability and significance and the duty of the tribunal to offer the claimant the chance to comment on observations when they are made.
"If an observation is one of the factors taken into account in reaching a conclusion, any failure in the tribunal's inquisitorial duty or violation of the right to a fair hearing will mean the decision is wrong in law."
R(DLA)5/03 (CDLA/3967/2002) considers a tribunal's powers to carry out a physical examination of a claimant. Its conclusion is that section 20 (3) of the Social Security Act 1998 forbids this but the decision follows the definition of a physical examination as laid down in R1/01(IB)(T) – a Northern Ireland decision.
“A physical examination is more than mere observation of an activity performed by a claimant at someone’s request. A physical examination is a structured investigation applying medically recognised techniques in an attempt to elicit objective signs of injury, disease or dysfunction.”
The claimant had been asked to pick her handbag up from the floor and tip out its contents. This was not held to be a physical examination. Tribunals can ask a claimant to perform an activity and draw inferences where a claimant refuses depending on the reasonableness of the request. However, any observation must be relevant to an examination of the claimant’s needs at the time of the decision under issue.
CIB/2061/2001 states that a tribunal cannot make a physical examination when deciding a personal capability assessment issues but can examine by observation and questioning.
In CDLA/433/1999, a case where the medically qualified member examined the claimant’s hands, it was held that the examination was not itself an error of law as long as the decision was not based on the examination. The decision still stressed that the proper course of action for a tribunal is not to carry out examinations.
Last updated: 10 April 2008
Author: Martin Inch
