One of our reps argued error of law due to inadequate reasons and findings of fact, this was because the tribunal had stated that the client did not need reasonable assistance on the basis that anyone with her condition (osteoporosis - i think)would not need help because
"the importance of someone with her condition doing things for herself independently is highlighted as pain is rarely avoided by receiving assistance and may well be inadvertently exacerbated by inappropriate assistance". We felt that this was a sweeping statement and no questioning was carried out with the client regarding this and her own feelings of pain etc, so she was not given an opportunity to comment on it.
The Commissioner has stated that "The tribunal was not required to make specific findings about the need for assistance in bed, etc because the point was already amply covered by its preliminary comments under the heading of attention" and then went on to refer to the above quote made by the tribunal chair. Does this mean that all the tribunal need to do is make a sweeping covers all statement, rather than apply the statutory tests and make findings on these. Can anyone help, is there any way forward from here?
The Commissioner also put in lots of Court quotes about not needing to give lots of detail in decision making, just to prove the point! Bit like having your hand slapped and told not to do it again!

If leave to appeal was refused then judicial review is the route.

If a full decision was given then you have the right of appeal to the Court of Session.

Subject to the financial limits legal aid is usually granted.

If you go to a solicitor experienced in this kind of work then they should be able to draft the grounds for you if you are not confident about doing it yourself.

the sweeping generalisation applied universally would result in no osteoparosis sufferers qualifying for DLA - an exclusion which doesn't exist in the legislation.

if i've understood your case correctly, the tribunal did not question your client and make findings of facts, on the basis of this approach to her condition.

it might be worth looking at the following CDs -

CDLA 0115/2002 - commissioner jacobs sets out by implication, the perfect route to decision-making via adequate findings of facts.

CSIB 377/03 - particularly para 40 - regarding when there is a need for the tribunal to put inferences to the claimant or rep, with regard to natural justice.

R(S)1/94 - regarding expert medical evidence of tribunal members.

the principle of deciding cases on the individual circumstances of the claimant is very important, and it seems that your case was decided on an abstract medical profession view of her condition, which took no account of your client's experience of her condition, which is not bound to fit into textbook theory. it might have led the tribunal to misdirect itself.

the generalisation, if accepted as a substitute for findings of facts, and the need to provide reasons, denies analysis of the reason your client was refused DLA. is the tribunal rejecting her claim that she has care needs? is it finding that her needs are unreasonable? is it saying she ought not to have any care needs? did it form a pre-conceived view before the hearing on the basis of the nature of her condition? how can anyone know?

cdla 3814/02 is a beaut decision on the use of meaningless phrases - i don't think the commissioner williams was getting at quite the problem you have with your case, but it's very succinct and will make you feel better just to read it. : )

i should add, that i have never yet dared to appeal against a commissioner's decision, so i don't know whether any of this helps at all.

jj

Thanks for the replies

We knew the Judicial Review option, but will look at those decisions. We are currently trying to persuade the client to agree to take it further. Certainly don't mind taking on Commissioners as they are not yet ordained by God and therefore not infallible, the difficulty seems to be finding clients who qualify for legal aid and who are willing to take the case further even with lots of persuasion. Costs wise there may of course be altruistic members of the legal profession who would offer their services for free or a rich benefactor. Stranger things have happened.

I have reuested levae to apeal for the same reasons, and essentially relied on R (A) 1/72 para 2, in my case. I,m unsure if this is applicable in yours.
I also relied on CDLA/0902/2004.
Hope these may help in future