Decision No:  C22/00-01(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCAPACITY BENEFIT

Appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 29 September 1999

DECISION OF THE SOCIAL SECURITY COMMISSIONER
 
1.	This is an appeal, leave having been granted by myself, by the claimant against a decision dated 29th September 1999 of an Appeal Tribunal sitting at Belfast.  That Tribunal had disallowed the claimant’s appeal against an Adjudication Officer’s decision that she could not be treated as incapable of work from and including 20th April 1999.

2.	The claimant was represented in her appeal by Alderman McKee.  In essence the grounds of appeal were twofold as follows:-

1.	That she was unfit for work.

2.	That she had been unable to attend the Tribunal hearing due to ill health and her doctor had advised her not to go and had contacted either the Department or the Tribunal (it was not clear which) informing them of this.

3.	The claimant forwarded letters from her doctor in support of the appeal.  These letters were dated 6th December 1999 and 13th September 2000.  Neither mentioned any telephone call by the doctor though the claimant was requested on 17th July 2000 to obtain a letter from her GP as to whether or not he had telephoned the Tribunal Service before the hearing on 29th September 1999 to state that the claimant was unable to attend.  In addition it appears that the Tribunal Service has no record of any telephone call from the doctor.

4.	The appeal was opposed by the Decision Making and Appeals Unit of the Department for Social Development by letter dated 27th October 2000 from their Mr Fletcher.  Mr Fletcher alluded to the provisions of regulation 51(1) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 which provide that requests for postponement of Tribunal hearings must be made in writing to the clerk to the Appeal Tribunal stating the reasons for the request.  He submitted that the claimant’s actions obviously fell short of that requirement.  He further submitted that it was apparent from the record of the Tribunal’s proceedings that the Tribunal was unaware of any circumstances which might prevent the hearing going ahead.  He referred to the fact that the Tribunal had delayed the proceedings for over an hour in the hope that the claimant would attend and stated that it seemed likely that the Tribunal would have checked to see if any telephone calls had been received.

5.	Mr Fletcher referred to the fact that the Tribunal was entitled to conduct an oral hearing in the absence of the claimant and referred to decision C39/98(DLA) as authority for this.  He submitted that there had been two previous listings of the claimant’s appeal and submitted that the Tribunal was correct to proceed in this case.

6.	As regards the claimant’s other ground of appeal relating to her health Mr Fletcher submitted that it was apparent that the Tribunal had diligently considered the activities in the All Work Test, had carried out an evidential assessment and preferred the Medical Support Services doctor’s report to the claimant’s evidence.  He submitted that there was no error of law in relation to either ground.

7.	I am in agreement with Mr Fletcher that there is no error of law in relation to the Tribunal’s decision as to whether or not the claimant satisfied the All Work Test.  The Tribunal is entitled to prefer the evidence of the examining doctor and it has given clear reasons for its evidential preference.

8.	More problematic, and the reason why I granted leave to appeal is the ground relating to the Tribunal proceeding in the claimant’s absence.  I begin by stating that a Tribunal is entitled to proceed in the absence of a claimant.  This is long term settled law.  There is no error per se in the Tribunal so proceeding.  What I have to consider in this case is whether there was any breach of the rules of natural justice in the Tribunal so proceeding in this case.  Such a breach can constitute an error of law so as to require a decision to be set aside.  In C39/98(DLA) the Chief Commissioner at paragraph 15 referred to the words of Mr Commissioner Goodman in Great Britain decision *72/96 -

“I can exercise that power [to decide that a Tribunal should have adjourned to enable a claimant to attend] where it seems to me that inadvertently there has been a breach of the rules of natural justice i.e. a denial to a party of the right to be heard (audi alteram pantem)”.

9.	It appears quite clear in this case that the Tribunal was unaware of any reason why the claimant could not attend.  I am not prepared to find that the claimant or her doctor telephoned the Tribunal before the hearing to so inform it.  There was a background in this case in that two previous hearings had been adjourned to facilitate the claimant’s attendance.  On the second of these adjournments, which took place on 14th July 1999 the Tribunal decision expressly warned the claimant that in the absence of a substantial reason for adjournment the appeal should proceed when next listed.  It also advised the claimant to obtain confirmation from her doctor as to her condition as that might be relevant in considering any further adjournment applications which might arise.  The adjourned Tribunal could scarcely have made it clearer to the claimant that she should make every effort to attend her next hearing.

10.	The two letters from the doctor were produced after the Tribunal decision had issued and the Tribunal cannot be faulted for not having taken them into account.  Similarly in my view the Tribunal is not to be faulted for proceeding to hearing in this matter.  However, what I have to consider is whether or not in the circumstances which have come to light there was a breach of natural justice in the Tribunal proceeding as it did.

11.	The claimant has produced the two letters mentioned above from her doctor and I consider it important that in one of those letters the doctor expressly states that he saw the claimant on 14th July 1999, 9th August 1999 and 27th September 1999 and states “She wasn’t able to attend her Tribunal in September because of severe back pain.”

12.	In the subsequent letter of 13th September 2000 the General Practitioner stated that he saw the claimant on 29th September 1999 and that she had fallen one week previously and was still suffering from severe low back pain.  He states “I prescribed analgesics and physiotherapy, and advised she was not fit to attend her Tribunal.”

13.	I am impressed and influenced by the fact that while there may be some confusion between the 27th and 29th September the doctor did see the claimant either shortly before or on the day of the Tribunal and advised her that she was not fit to attend.  It is unfortunate and the claimant is to be faulted in that she herself did not advise the Tribunal of this but appears to have left the matter to her doctor.  Nonetheless, in the light of the doctor’s statement and of his having seen her so close to the time of the Tribunal I must accept that the claimant was unfit to attend the Tribunal.

14.	I must therefore ask myself whether or not there was a breach of the rules of natural justice in the Tribunal, albeit unwittingly and with out fault, deciding to proceed in this case.  The claimant had obviously had numerous chances of attending a Tribunal and had not attended and it is obvious that a Tribunal cannot endlessly adjourn.  Sooner or later a decision must be made.  However, in light of the fact that the claimant’s condition was likely to improve so that she could attend and indeed it appears that it did improve, I am of the view that the Tribunal in all probability would have adjourned had it known the circumstances which I now know.  I should state that if I was dealing simply with a situation of a claimant informing her doctor after the Tribunal that she had been ill and was unable to attend I would have been less impressed.  It is the evidence from the doctor of attendance on either the 27th or 29th September 1999, before the Tribunal and his express contemporaneous advice that the claimant was unfit to attend, which impresses me.

15.	With hindsight therefore and without faulting the Tribunal I set the decision aside as in error of law.  I do not consider that this is a case where I can give the decision which the Tribunal should have given and I therefore remit this matter for rehearing before a differently constituted Tribunal.  Whether the end result will be any more favourable to the claimant I have no means of ascertaining.

16.	When the new hearing takes place the claimant should remember that the Tribunal is entitled to conduct an oral hearing in her absence.  I refer to the decision of the Chief Commissioner for Northern Ireland in case C39/98(DLA).  The claimant should bear this in mind and make every effort to attend the next hearing.  As her health appears to have improved it appears that she should be able to do so.  If she does not attend the Tribunal does have the power to proceed in her absence and any decision to do so would not be lightly set aside.

(Signed):  M F BROWN

	COMMISSIONER

30 APRIL 2001