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Neutral Citation Number:
Reported Number:	R(DLA)8/06
File Number:	CDLA 145 2006
Appellant:
Respondent:
Judge/Commissioner:	Judge E. Jacobs
Date Of Decision:	25/04/2006
Date Added:	15/05/2006
Main Category:	Tribunal procedure and practice (including UT)
Main Subcategory:	evidence
Secondary Category:
Secondary Subcategory:
Notes:	Evidence – observations made during the hearing The claimant claimed disability living allowance based mainly on pain and fatigue resulting from chronic fatigue syndrome. His claim was refused and he appealed to a tribunal. He was present and represented at the hearing of his appeal and the tribunal had several items of medical evidence before it. The record of proceedings stated that after 50 minutes the chairman had invited the claimant’s comments on the tribunal’s observation of his apparent lack of fatigue. The tribunal dismissed the appeal. The chairman stated as one of 12 reasons for the decision the tribunal’s observation of the claimant during the hearing. In the claimant’s appeal to the Commissioner, it was argued on his behalf that the tribunal had failed to explain the significance of the observations to the claimant and to seek further clarification. Held, dismissing the appeal, that: 1. a tribunal may fail to comply with its inquisitorial function if it neglects to make appropriate inquiries in the light of an observation made during the hearing and the failure to allow a claimant to comment on observations may be a violation of the tribunal’s duty to ensure a fair hearing (CDLA/440/1995) (paragraph 13); 2. a tribunal must not take observations into account unless they are relevant to an issue of fact that is before it and to the time of the decision under appeal and reliable as evidence of the claimant’s overall disablement (paragraphs 14 to 16); 3. if a tribunal does take observations into account, it must assess their proper significance in the context of the evidence as a whole and that evidence may have to include the result of further inquiries into the issues of relevance and reliability. The extent to which further inquiries are appropriate may depend upon the significance that the observation is likely to have in the final deliberations (paragraphs 17 to 18); 4. if an observation is used purely as confirmation of a conclusion that the tribunal would have reached anyway, there is no need for a tribunal to investigate it further or for the claimant to have a chance to comment on it. However, 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 that the decision is wrong in law (De Silva v Social Security Commissioner [2001] EWCA Civ 539 followed) (paragraph 19); 5. in the present case the observations were relevant to the tribunal’s findings, the tribunal did not attribute to them an inappropriate significance, as it was clear that they were not a decisive factor in the tribunal reaching its conclusion, and the claimant and his representative were given sufficient opportunity to respond to them (paragraphs 21 to 28).
Decision(s) to Download:	R(DLA) 8-06 bv.doc