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An oversight of evidence may affect a tribunal’s conclusions about the credibility of a claimant’s case

17th June, 2022

JNMcH v. Department for Communities (PIP) [2022] NI Com 4

Background

The claimant claimed Personal Independence Payment (PIP) on the basis of needs arising from diabetes, anxiety, depression, high blood pressure and high cholesterol. Before claiming PIP, the claimant received Disability Living Allowance (DLA) at the low rate mobility and middle rate care level.

The Department refused his claim for PIP and did not change its decision on mandatory reconsideration. The claimant appealed. His appeal was unsuccessful and he appealed to the Social Security Commissioner.

Legal issue

The claimant appealed to the Commissioner on the ground that the tribunal erred in law by not taking his diabetes and depression seriously and by failing to accept that his condition had worsened since his award of DLA.

The Department supported the claimant’s appeal, but on a slightly different basis. It submitted that the tribunal erred in law by failing to address a GP factual report and a GP letter during its reasoning.

The GP report and letter described how the claimant suffered frequent hypoglycaemic events with little awareness and required help and supervision. These accounts were in conflict with separate observations made by the healthcare professional (HCP), who stated that the claimant had good cognition which allowed him to manage his diabetes.

The Department submitted that it was clear from the tribunal’s reasoning that it preferred the evidence of the HCP over the GPs. The Department argued that while the tribunal was entitled to this preference, it had to provide an explanation for it and it failed to do so in the claimant’s case.

The Department referred to C14/08-09 (DLA), a decision of Commissioner Mullan, as he then was, which highlights the need for tribunals to undertake a rigorous assessment of all the evidence and to give an explicit explanation as to why it has preferred, accepted or rejected evidence.

The Department conceded that the tribunal had failed to deal with the conflict of evidence and had not adequately assessed or addressed whether the claimant could carry out activities safely.

Decision

The Commissioner acknowledged that the tribunal expressly referred to a number of documents in its reasoning, but not to the GP report or GP letter. Although a lack of specific reference to documents, does not mean the tribunal did not consider them, the record of proceedings indicates it wasn’t aware of the documents.

The Commissioner concluded that procedural unfairness had occurred. He decided that the tribunal’s oversight of evidence from the GPs could affect its overall assessment of the claimant’s credibility and the outcome of the appeal.

In the circumstances, the Commissioner allowed the appeal and referred the case to a new tribunal.

For a full copy of the judgment, click here.