Decision No: C15/99(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS
(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)
(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Appeal to the Social Security Commissioner
on a question of law from a Tribunal's decision
dated 23 April 1998

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by myself, against a decision dated 23 April 1998 of a Disability Appeal Tribunal (hereinafter called "the Tribunal") sitting at Londonderry.  That Tribunal had disallowed the claimant's appeal in relation to Disability Living Allowance.  The Tribunal had conducted a hearing of the appeal which the claimant did not attend but which was attended by her husband and by her representative Mr O’....

2.	The claimant's grounds for appeal were set out in lengthy letters dated 19 August 1998, 25 September 1998 and 8 February 1999.  Comment thereon was offered by Mr Fletcher of Central Adjudication Services in a letter received on 2 August 1999.  At my request, both the claimant's representative, the Law Centre (Northern Ireland) and Mr Fletcher addressed me by letters dated respectively 7 December 1999 and 24 November 1999 in relation to the issue of the release of records to the claimant's representative.

3.	The claimant not having attended the hearing and not having signed a consent form to the release of the records to her representative, these records were not, it appears, made available to the representative.  The Tribunal Chairman recorded "Medical records Advised to those present".  It appears likely that this referred only to the existence of the records.  

4.	The claimant's husband informed me in correspondence (and I have no reason to doubt) that a request was made to the Tribunal clerk for sight of the General Practitioner records, but this was refused on the basis that there was no consent to either the representative or the claimant's husband viewing the notes.  This refusal was by the Tribunal clerk who, in my view was quite correct to refuse to release the records in these circumstances.

5.	The Tribunal's record of proceedings does not show that any repeat of the request to review the records was made at the hearing and indeed there is no contention that there was any repeat of the request.  Equally however the record of proceedings does not show, and it is not contended, that the Tribunal was informed of the request made to the clerk to view the said records.  It therefore appears that the Tribunal was unaware of the request to the clerk to view the records.

6.	The Tribunal, undoubtedly, relied on these records as part of the reasons for its decision.  Part of the reasons given are "... However, since her last period in hospital the medical records indicate that the appellant is doing well and has improved."  Later it is stated "... In our opinion the medical evidence does not support her contention for continual supervision throughout the day and we reject the assertion that this is necessarily required."  Various other references were made which indicate that the Tribunal relied on the claimant's medical records.  This, of course, it was entitled to do.

7.	A natural justice issue, does, however arise in that the Tribunal was in a situation where it was not informed of a request to the clerk to make available the medical records to the claimant's representative.  The Tribunal could not, on the foot of the consent form as signed, have released the records but I have little doubt that had it been informed of the request to see them, the Tribunal would at least have given consideration to an adjournment to enable the claimant to furnish consent to the records being released to her representative.  The Tribunal not being informed of this request, the situation arose whereby the Adjudication Officer had sight of the records, the claimant's representative wished to have sight of them and the Tribunal was not aware of this wish.  

8.	It is correct that the consent form does set out the persons whom the claimant is consenting to have sight of the records and that these persons do not include the representative.  It is also, however, correct that the consent form does say that the claimant's representative may wish to have sight of the records and that that is a matter for the claimant.  I do not know, in this case, whether or not the claimant consented to her representative having sight of the records and neither did the Tribunal.  The Tribunal was not even aware of the fact that the request was made.  It would have been good practice for the Tribunal to inquire and record whether or not all the parties had had sight of the records.  The background might then have come to light.  In the circumstances there was a breach of the rules of natural justice in that the Tribunal proceeded to hear the case on the basis of a mistaken assumption that there was no expressed wish to see the medical records by the claimant's representative.  Had it known, the Tribunal could have raised the issue with the claimant's representative.  As matters stood, the claimant was left with the understandable impression that she was prevented from making her case effectively.  Justice was not seen to be done.

9.	I therefore allow the appeal.  I do not consider that this is a case where I can give the decision which the Tribunal should have given.  There appear to me, issues of an evidential nature which need to be resolved in this case and which are more appropriate to the Tribunal and I therefore remit the matter to a differently constituted Appeal Tribunal for rehearing.

10.	I can see no constructive reason for commenting on the other grounds of appeal set out by the claimant and the Tribunal's decision is set aside on the above-mentioned ground alone.  I would, however, comment that if the claimant wishes to ensure that certain medical evidence is before the Tribunal she should take steps to have it placed before the Tribunal.  Merely suggesting to the Tribunal that it obtains the evidence will not ensure that it is before the Tribunal.  It is generally speaking a matter for the claimant to obtain evidence in support of his/her appeal.  It may be that the claimant will attend the reconvened hearing but if she does not and if she wishes her medical records to be furnished and to be seen by her representative and/or her husband, her written consent to this would have to be furnished before the Tribunal could release same.    

	(Signed):  M F Brown

	COMMISSIONER

	17 February 2000