[2006] NISSCSC C11_05_06(IB) (20 April 2006)

Decision No:  C11/05-06(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCAPACITY BENEFIT

Application by the claimant for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 7 December 2004

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This case begins as an application by the claimant for leave to appeal against a decision dated 7 December 2004 of an appeal tribunal sitting at Newry.  The tribunal disallowed the claimant’s appeal against a departmental decision to the effect that from 9 April 2004 the claimant was not incapable of work in accordance with the personal capability assessment and therefore was not entitled to incapacity benefit from that date.

2.	In the application to me the claimant is represented by Mr Brady of Newry Welfare Rights and the Department by Mr O’Connor of its Decision Making Services branch.  I am grateful to both representatives for their assistance.  Both consented, if I should grant leave, to my treating the application as an appeal and determining any question arising thereon as if it arose on appeal.  I grant leave and proceed to deal with the matter as an appeal.  My decision is given in the final paragraph.

3.	I have had the benefit of both written and oral submissions.  The claimant’s written submissions were on an OSSC1 form dated 17 May 2005 and letters dated 28 June 2005 and (undated) received on 14 October 2005.  The Department’s written submissions were in a letter dated 12 September 2005.  The claimant’s grounds as put forward in the written submissions were that the tribunal had erred in proceeding to hear and determine his appeal in the absence of Mr Brady, when the tribunal was aware Mr Brady was unavailable.  Both in the written submissions and at hearing the claimant stated that he had not asked for a postponement to enable Mr Brady to attend but in fact had told the tribunal that he wanted the tribunal to hear the case on the morning of the hearing as he had been several months on half benefits.

4.	At hearing Mr Brady made some changes to the written grounds of appeal.  Initially he stated that he was appealing against the legally qualified panel member’s refusal to set aside the tribunal’s decision on the ground that the claimant was unrepresented.  I told him that I had no jurisdiction to deal with the legally qualified panel member’s refusal to set aside.  Mr Brady then submitted that the tribunal had erred in law in that it had not adequately explored variations in the claimant’s condition given that he suffered from asthma and allergies.

5.	This last was not a matter which had been previously raised.  Mr O’Connor, however, was prepared to proceed and to deal with it.  Mr O’Connor opposed the appeal and submitted that the tribunal had taken into consideration variations in the claimant’s condition.  As regards representation, Mr O’Connor submitted that the claimant had had an opportunity to seek an adjournment but had not done so.

6.	The claimant attended the hearing before me and, while readily admitting that he had told the tribunal he wished to go ahead with the hearing, contended that he should have been told by the tribunal that, if he felt under pressure, he could seek an adjournment.  He said he felt under pressure five minutes into the hearing because of hostile questioning by the tribunal.

7.	Having perused the record of the hearing (which no one has contended is inaccurate) I can ascertain nothing which leads me to the conclusion that the hearing was in any way unfair.  It does not appear that there was any actual bias or hostility on the tribunal’s part or anything to cause a reasonable apprehension of bias or hostility.  The claimant may well have felt under pressure.  He was being questioned in some detail about his health and functional capacity.  Given, however, that the tribunal was obliged to apply the personal capability assessment and the considerable detail involved in so doing, such questioning was inevitable.  In such circumstances detailed questioning does not indicate unfairness, rather a full exploration of the issues.

8.	I do not consider that there is any general requirement on a tribunal to advise a claimant (who has elected to proceed without his representative) that, if he feels under pressure at any stage in the hearing he can seek an adjournment to have his representative attend.  Nor in this case do I consider there was any breach of the duty to conduct a fair hearing in the tribunal’s not so advising the claimant.  It does not in any way appear that the claimant was incapable of answering the questions put to him or of giving evidence as to h is health and functional abilities.

9.	As regards the ground relating to the adequacy of exploration of variations in the claimant’s condition, I consider there is no merit in this ground.  The tribunal has obviously questioned the claimant in some detail about his functional abilities and about variations in his functional abilities.  It has also enquired about the frequency of use of a nebuliser and steroids and hospitalisation (all of which would reflect variability).  I consider there was no failure in the inquisitorial role on the tribunal’s part.

10.	As regards the tribunal proceeding without Mr Brady being present, I can trace no mention in the record of proceedings of his absence being raised.  Indeed he is not noted as being a representative on that record.  The claimant states and I accept that he told the tribunal his representative was not available but that he wished to proceed without him.

11.	Mr Brady submits that the claimant might have done better had he, as representative been there.  That may or may not be so but it is not what I have to decide.  My function is to decide whether there was any breach of the requirement for a fair hearing or any other error of law on the tribunal’s part.  In my view there was not.  The claimant did not wish an adjournment and there is nothing to indicate that the tribunal should nonetheless have adjourned. It is quite apparent from the record that the claimant was given ample opportunity to put forward his case and was specifically asked about variations and functional capacity as delineated in the personal capability assessment.  The tribunal is not required to represent a claimant.  It is required to conduct a fair hearing including to deal with issues raised or readily apparent from the evidence.  This the tribunal did.

12.	I can ascertain no error in its decision.  I therefore dismiss the appeal.

(signed):  Moya F Brown

Commissioner

14 March 2006