CDLA 4977 2001
| Jurisdiction | UK Non-devolved |
| Judge | Judge E. Jacobs |
| Judgment Date | 23 July 2002 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CDLA 4977 2001 |
| Subject Matter | Tribunal procedure and practice (including UT) |
DECISION OF THE SOCIAL SECURITY COMMISSIONER
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My decision is as follows. It is given under section 14(8)(a)(i) of the Social Security Act 1998
- The decision of the Newcastle appeal tribunal under reference U/44/228/2000/03734, held on 3rd October 2001, is erroneous in point of law
- I set it aside and give the decision that the appeal tribunal should have given without making fresh or further findings of fact.
- My outcome decision is the same as the tribunal’s. It is that the claimant is not entitled to a disability living allowance from and including 3rd May 2000. But, unlike the tribunal, I base my decision not on a change of circumstances, but on the ground that the decision awarding a disability living allowance to the claimant was made in error of fact.
The appeal to the Commissioner
- This is an appeal to a Commissioner against the decision of the appeal tribunal brought by the claimant with my leave. The Secretary of State supports the appeal, but invites me to substitute a decision for that of the tribunal without directing a rehearing. The suggested decision is no more favourable to the claimant than that of the tribunal.
The history of the case
- It is convenient to begin with the claimant’s 'renewal claim' from the effective date of 3rd October 1995. At the time of that claim, the claimant had an award of the mobility component at the higher rate and the care component at the lowest rate. At first, the 'renewal claim' was refused. However, on review an award was made of the mobility component at the higher rate for life from the effective date of 3rd October 1995.
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On what evidence was that award based?
- In the 'renewal’ claim pack, the claimant identified the cause of her disablement as an old fracture of her left ankle. In the mobility section of the pack, she wrote that she was limited by severe pain all the time. She was not able to walk any distance without severe discomfort.
- A factual report from the claimant’s GP gave diagnoses of asthma, anxiety and the left ankle fracture. On mobility, the doctor wrote that the claimant could walk, with a limp, for 400 yards on level ground in about 10 minutes. The question did not refer to severe discomfort.
- Finally, there was a Consultant’s report dated 27th November 1995. On mobility, he confirmed the fracture but was unable from his notes to answer the specific questions about distance, gait and speed of walking.
- The adjudication officer’s decision also refers to the claimant’s application for a review. I have not seen a copy of that.
- In accordance with standard practice, the adjudication officer did not explain why an award was made. The reasons for the decision are limited to explaining why no rate of the care component was included in the award.
- The story moves on to 18th January 2000, when the claimant was visited by an examining medical practitioner. I assume that that was at the instigation of the Secretary of State in order to check on the claimant’s continuing entitlement. On mobility, the examining medical practitioner’s opinion was that the claimant would be able to walk 100 metres before the onset of severe discomfort at a slow speed, in about 4 to 5 minutes, with no halts and stable balance, but with a slight limp.
- On 3rd May 2000, a decision-maker acting the name of the Secretary of State on supersession terminated the award of disability living allowance from and including that date.
- The claimant exercised her right of appeal to an appeal tribunal. The decision reached at the first hearing was set aside by a district chairman under section 13(2) of the Social Security Act 1998. At the new hearing, a different tribunal confirmed the decision on supersession terminating the award. The tribunal rejected the claimant’s own evidence. It relied on the evidence of the examining medical practitioner. However, it found that doctor’s estimate of the claimant’s speed of walking too conservative in view of the clinical findings on examination.
The handling of the evidence
- The original grounds of appeal argued that the tribunal had ignored the evidence given by and in support of the claimant. I reject that argument. The tribunal did not ignore the evidence. It considered it, but rejected it for the reasons that it gave.
- I suspect that these grounds were poorly expressed. The real complaint being made was probably not that the tribunal ignored the evidence, but that it did not give it sufficient weight. I also reject that formulation of the argument. The assessment of the probative worth of the evidence is a matter for the tribunal. It will not go wrong in law, unless its assessment is irrational or its preference is not adequately explained. Neither of those conditions applies. The tribunal gave a clear explanation that shows that its rejection of evidence was rational.
The proper approach to a defective supersession
- The supplementary grounds of appeal contain a carefully constructed case that the nature of an appeal to an appeal tribunal has been fundamentally altered by the Social Security Act 1998 and the Human Rights Act 1998. As a result, the tribunal is unable to remedy defects in a decision given by the Secretary of State on a supersession. In this case, the supersession decision was defective. So, the tribunal had no alternative but to...
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