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A tribunal’s reasons explaining a difference in award of DLA and PIP should be simple and clear. A detailed analysis is not required.

30th March, 2022

LO’H v. Department for Communities (PIP) [2021] NI Com 60

Background

The claimant claimed PIP, having previously been awarded DLA high rate mobility and middle rate care from 2009 until 2018. His application for PIP was refused. Following a mandatory reconsideration, his award of points for daily living activities was increased, but not by enough to reach the threshold for an award of Daily Living component. His points for mobility activities remained at zero.

The claimant appealed. On the day of hearing, the claimant failed to appear and the tribunal proceeded in his absence. The tribunal refused the claimant’s appeal.

During the course of the appeal hearing, the tribunal made comments about the claimant’s credibility, including that his failure to appear at the hearing was an attempt to manipulate the process and system to his advantage.

The claimant appealed to the Social Security Commissioner.

Legal issue

The claimant’s appeal to the Social Security Commissioner raised two main issues:

  • Were the tribunal’s reasons for its decision adequate, given that the tribunal’s decision diverged from the previous decision on DLA?
  • Did the tribunal’s comments on the claimant’s credibility constitute an error of law?

Decision

Explanation of divergence between PIP and DLA decisions

The Commissioner noted that before claiming PIP, the claimant had been entitled to DLA at a significant level and for a considerable time.

Referring to the decision of Judge Hemingway in the English case MM-C v. SSWP (C PIP) [2021] UKUT 183 (AAC), the Commissioner noted that the tribunal’s duty to explain divergence is not a demanding one and does not require a detailed analysis. The tribunal’s duty is only to state simply and clearly why it has reached a decision, which apparently diverges from a decision on DLA. The only issue is whether the explanation is understandable for the claimant.

In the claimant’s case, the Commissioner doubted whether the tribunal’s reasons were adequate to explain why the claimant was now not entitled to a disability related social security benefit, when for a lengthy period immediately prior to his claim, he was.

The claimant’s credibility

The Commissioner went on to address the tribunal’s comments on the claimant’s credibility. The Commissioner reviewed case law on a tribunal’s explanation of its assessment of a claimant’s credibility.

He referred to the case of C14/02-03 (DLA) in which Commissioner Brown states:

‘…there is no universal rule that a tribunal must always explain its assessment of credibility. It will usually be enough for a tribunal to say that it does not believe a witness.’

He further referred to R3-01(IB)(T) in which a Tribunal of Commissioners states:

‘We do not consider that there is any universal obligation on a tribunal to explain its assessment of credibility. We disagree with CSIB/459/97 in that respect. There may of course be occasions when this is necessary, but it is not an absolute rule that this must always be done. If a tribunal makes clear that it does not believe a claimant’s evidence or that it considers him to be exaggerating, this will usually be sufficient. The tribunal is not required to give reasons for its reasons. There may be situations when a further explanation will be required but the only standard is that the reasons should explain the decision. It will, however, normally be a sufficient explanation for rejecting an item of evidence, including evidence of a party to an appeal, to say that the witness is not believed or is exaggerating.’

Finally, the Commissioner referred to CIS/4022/2007 where Deputy Commissioner Wikeley (as he then was) states at paragraph 52:

‘In my assessment the fundamental principles to be derived from these cases and to be applied by tribunals where credibility is in issue may be summarised as follows:

(1) there is no formal requirement that a claimant’s evidence be corroborated – but, although it is not a prerequisite, corroborative evidence may well reinforce the claimant’s evidence;

(2) equally, there is no obligation on a tribunal simply to accept a claimant’s evidence as credible;

(3) the decision on credibility is a decision for the tribunal in the exercise of its judgment, weighing and taking into account all relevant considerations (e.g. the person’s reliability, the internal consistency of their account, its consistency with other evidence, its inherent plausibility, etc, whilst bearing in mind that the bare-faced liar may appear wholly consistent and the truthful witness’s account may have gaps and discrepancies, not least due to forgetfulness or mental health problems);

(4) subject to the requirements of natural justice, there is no obligation on a tribunal to put a finding as to credibility to a party for comment before reaching a decision;

(5) having arrived at its decision, there is no universal obligation on tribunals to explain assessments of credibility in every instance;

(6) there is, however, an obligation on a tribunal to give adequate reasons for its decision, which may, depending on the circumstances, include a brief explanation as to why a particular piece of evidence has not been accepted. As the Northern Ireland Tribunal of Commissioners explained in R 3/01 (IB) (T), ultimately "the only rule is that the reasons for the decision must make the decision comprehensible to a reasonable person reading it".’

In addition to the principles identified by Commissioner Wikeley, the Commissioner states:

‘I would add, albeit in the most general of terms, that in assessing credibility an adjudicating authority is entitled to take into account whether a claimant is working.’

The Commissioner expressed concern about how the claimant’s tribunal addressed the relevance of his relationship with work in assessing his credibility. The Commissioner noted:

  • The key dates for the claimant’s appeal were March and May 2018 (the date of claim and date of decision) and January 2019 (the date of the appeal hearing). However, the tribunal referred to GP reports from 2000-2010 to conclude that the claimant was continually working in an engineering capacity. These records, which were eight years before the key dates, did not provide a sound evidential basis for the tribunal’s conclusion.
  • In addition, and of more minor concern, medical and healthcare professionals, particularly when assessing an individual for the first time, often do ask questions about the individual’s employment in the event that the injury or disease which they are asked to assess has a link to employment.

The Commissioner decided that these conclusions were sufficient to dispose of the claimant’s appeal without considering other grounds. He decided that the tribunal had erred in law. He allowed the claimant’s appeal and referred the matter to a new tribunal.

For a copy of the judgment, click here.