Decision No: C17/02-03(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCAPACITY BENEFIT

Appeal to the Social Security Commissioner
on a question of law from the decision of the Appeal Tribunal
dated 27 September 2001.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant, with the leave of a commissioner granted on 4 October 2002, against the decision of the Appeal Tribunal whereby it was held that the claimant was to be treated as not incapable of work from and including 23 February 2001.

2.	Having considered the circumstances of the case I am satisfied that the appeal can properly be determined without a hearing.

3.	The claimant originally became unfit for work on 14 August 2000 and claimed Incapacity Benefit by reason of nervous debility and also head and neck problems.  Later doctor’s statements received in support of the claim referred to depression.  The claimant was not entitled to Incapacity Benefit as she did not satisfy the contribution conditions for the receipt of that benefit.  Instead she was awarded a National Insurance contribution credit for each complete week that she was incapable of work.  After a report was received from her General Practitioner concerning her mental health, a Departmental doctor on 1 November 2000 determined that the claimant was not suffering from an exempt category.  Accordingly a letter was sent to the claimant on 12 February 2001 asking her to attend a medical examination on 21 February 2001.  The appointment letter informed the claimant what she had to do if she was unable to attend.  The claimant was unable to attend on 21 February 2001 and notified the medical support services by a telephone call on 20 February 2001.  The claimant was then offered a further appointment over the telephone for 22 February 2001.  She accepted this new appointment.  However the claimant did not attend on 22 February 2001.  The claimant was then asked on 22 February 2001 why she had not attended for examination.  The claimant replied on 28 February 2001 to the effect that there were medical reasons for her non-attendance.  The Department then determined that the claimant was to be treated as capable of work because she had failed without good cause to attend the medical examination on 21 February 2001.  Accordingly the claimant was then treated as capable of work and was not entitled to credits on the basis of continuing incapacity for work from 29 May 2001.  The claimant then appealed by a letter received in the Department on 13 June 2001.  The decision of 29 May 2001 was looked at again on receipt of the appeal and the supporting letter from the claimant’s general practitioner and, on 20 June 2001, it decided that the decision of 29 May 2001 should stand.  

4.	On appeal the legally qualified member made the following record of proceedings: -

“Claimant did not attend.  She had been notified of the hearing and completed form indicating an intention to attend.  No reason for non-attendance or request for adjournment was given or made.  The Tribunal considered it appropriate to deal with the matter in the claimant’s absence on careful consideration of the papers commencement of the hearing having been delayed until 10.30 am.”

5.	The Tribunal gave the following reasons for its decision: -

“The claimant stated, at the time she was offered her original appointment for 21.2.2001 that she had a conflicting doctor’s appointment.  She was offered and accepted an appointment for the following day.  The Tribunal is satisfied that notice was duly given.  Her stated reason for non-attendance was that she was ill – so ill in fact that she was in bed for “a few days”.  When her doctor was asked to confirm this he stated that the surgery was not contacted at the time.  Given the apparently serious nature of the claimant’s illness, and that she had a doctor’s appointment the day before, this lack of corroboration from her doctor, gives cause for concern.  So does the fact that the claimant did not contact the Department as she had before.

The Tribunal is not satisfied on the evidence that the claimant was prevented from attending and is not satisfied she has shown good cause for failing to attend.  Accordingly she is to be treated as not incapable of work from and including 23.2.2001.”

6.	The claimant, through her solicitors Breen & Company, attempted to have the decision set aside on the grounds that the Tribunal had proceeded to hear the appeal in the claimant’s absence in circumstances where she had attended, although somewhat late for the hearing.  The Legally Qualified Member on 3 December 2001 ruled that the decision should not be set aside.

7.	The claimant also sought leave to appeal to a Commissioner.  However, leave was refused by the Legally Qualified Member on 18 April 2002.  However, as stated at paragraph one, a Commissioner granted leave on 4 October 2002.  Leave was granted specifically because: -

“It is arguable that the decision was wrong in law, because: (1) in the specific circumstances of the case, the claimant, apparently because she was late for the Tribunal hearing, was unable to put her case orally to the Tribunal, and (2) the Tribunal did not deal with any issues arising from the claimant’s agoraphobia, which may have been relevant not only to the main matter in contention in the case but also the lateness of the claimant at the Tribunal hearing.”

8.	The claimant’s appeal has been supported by Mrs Gunning of the Decision Making and Appeals Unit of the Department to a limited extent.

9.	The claimant, through her solicitor, has submitted that the Tribunal’s decision was in error because the Tribunal had refused to hear from the claimant and also made its decision in the claimant’s absence and refused to reconsider its decision when the claimant arrived some 30 minutes late for the hearing.  

10.	Mrs Gunning, on behalf of the Department, has submitted, by letters dated 25 October 2002 and 8 December 2002, that, with the benefit of hindsight and without criticism of the Tribunal, the Tribunal ought not to have proceeded to hear the appeal in the claimant’s absence in all the circumstances.  

11.	It is clear that a Tribunal is entitled to conduct a hearing in the absence of a claimant – see regulation 49 (4) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999.  It seems that in this particular case the Tribunal delayed the commencement of the hearing until 10.30 am and, accordingly, delayed the hearing by at least 30 minutes.  There is no doubt that the record of proceedings has indicated that the Tribunal carefully considered the papers before deciding to deal with the appeal in her absence.  These papers included a reference by a Dr McG... to the claimant suffering from agoraphobia.  At the time that the Tribunal decided to continue with the case in the claimant’s absence the decision to do so does not seem unreasonable.

12.	However, as Mrs Gunning has pointed out, since the Tribunal the claimant has submitted considerable further medical and other evidence in support not only of her non-attendance at the medical examination but also her non-attendance at the Tribunal.  Mrs Gunning has submitted that had this information been available to the Tribunal it is probable that the Tribunal would have adjourned the case to give the claimant an opportunity to attend.  In support of her submission Mrs Gunning has relied on my decision in C1/99(AA) which quotes at some length from my decision in C26/97(DLA) and the Great Britain decision of Mr Commissioner Goodwin in CS/1939/95.

13.	With some diffidence I consider that, on balance, this case is in a similar category and that I ought to exercise the power to make a finding that the Tribunal should, in retrospect, have adjourned its hearing to enable the claimant to attend, as 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 partem).

14.	In the circumstances I conclude that the Tribunal, in the interests of justice, ought to have exercised its power to adjourn the proceedings and, as this was not done, the decision of the Tribunal was erroneous on point of law.  I therefore allow the appeal and set the Tribunal’s decision aside and refer the case back to a freshly constituted Appeal Tribunal to reconsider and re-determine the case.  However, the allowance of this appeal should not be taken as an indication that the claimant will ultimately be successful in her appeal to the Tribunal. 

(Signed):  J A H MARTIN QC

CHIEF COMMISSIONER

4 FEBRUARY 2003