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A tribunal must address the claimant’s criticisms of a disability assessment report

17th June, 2022

SMCA v. Department for Communities (PIP) [2022] NI Com 3

Background

The claimant claimed Personal Independence Payment (PIP) on the basis of needs arising from Crohn’s disease, hiatus hernia, depression and anxiety, osteoporosis and rheumatoid arthritis. The Department decided that she was not entitled to PIP.

Supported by her daughter, the claimant sought a mandatory reconsideration of the Department’s decision. The claimant’s daughter disputed the contents of the healthcare professional’s (HCP) report about her mother. Despite the claimant’s daughter’s submissions, the Department did not revise its decision and the claimant appealed.

The claimant’s appeal was considered on the papers and dismissed. She appealed to the Social Security Commissioner.

Legal issue

On appeal, the claimant’s daughter argued that the tribunal had been misled by the HCP’s report of her mother’s health assessment. She submitted that she had answered all the HCP’s questions during the assessment because her mother is incapable. The HCP, however, wrongly attributed the answers to the claimant, rather than to her daughter.

The Department supported the claimant’s appeal. It referred to the case of MW v. SSWP [2016] UKUT 76 in which a tribunal failed to deal with criticisms of a HCP report. The Department submitted that the tribunal must acknowledge, even if briefly, the claimant’s daughter’s lengthy criticism of the HCP in its reasoning.

Decision

The Commissioner agreed with the parties. He acknowledged that there was no evidence that the tribunal had engaged with the persistent criticism of the HCP’s report levelled by the claimant’s daughter.

At paragraph 20, the Commissioner stated:

‘There are plainly difficulties for a tribunal assessing the credibility of an account when it is presented on paper and when there is no opportunity to see and hear a witness in person. However, that does not mean that it can simply fail to address an issue. The [claimant’s] daughter had consistently challenged the reliability of the HCP’s report on a specific basis. This submission was significant in terms of the reliability of the HCP report. The fact that the tribunal did not address the submission indicates that it did not deal with a crucial conflict arising before it. This was an error of law.’

The Commissioner allowed the appeal and referred the case to a new tribunal.

For a full copy of the judgment, click here.