[2009] NISSCSC C37_08_09(DLA) (02 July 2009)

Decision No: C37/08-09(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 29 April 2008

DECISION OF THE SOCIAL SECURITY COMMISSIONER

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

2.	The decision of the appeal tribunal dated 29 April 2008 is in error of 	law. The error of law identified will be explained in more detail below.

3.	Pursuant to the powers conferred on me by Article 15(8) of the Social 	Security (Northern Ireland) Order 1998, I set aside the decision 	appealed against. 

4.	For further reasons set out below, I am unable to exercise the power 	conferred on me by Article 15(8)(a) of the Social Security (Northern 	Ireland) Order 1998 to give the decision which the appeal tribunal 	should have given, as there is evidence, including medical evidence, 	which was before the appeal tribunal but which is not before me. 	Additionally, as the appellant has now to be given the opportunity to 	have representation and/or to submit additional evidence for 	consideration. Accordingly, I refer the case to a differently constituted 	appeal tribunal for re-determination. 

5.	It is imperative that the appellant notes that while the decision of the 	appeal tribunal has been set aside, the issue of her entitlement to 	disability living allowance (DLA) remains to be determined by another 	appeal tribunal. The newly constituted appeal tribunal will be 	undertaking its own determination of the legal and factual issues which 	arise in the appeal.  

Background

6.	On 30 November 2006 a decision-maker of the Department decided 	that there were grounds to supersede an earlier decision of the 	Department dated 22 February 2002. 

7.	Further, the decision-maker decided that the appellant was not entitled 	to DLA from and including 30 November 2006.

8.	Following receipt of a request to that effect, the decision dated 30 	November 2006 was reconsidered on 1 May 2007 but was not 	changed. 

9.	An appeal against the decision dated 30 November 2006 was received 	in the Department on 3 May 2007.

10.	The appeal was first listed for oral hearing on 16 January 2008. The 	appellant was not present. The appeal tribunal considered undated 	correspondence from the appellant in which she referred to the 	unavailability of her general practitioner (GP) records. Based on this 	correspondence, the appeal was adjourned in order for the GP records 	to be before the appeal tribunal. 

11.	The appeal was re-listed for oral hearing on 1 April 2008. Once again 	the appeal was adjourned. On this occasion, the appellant was not 	present but was represented by her son and a friend. While the GP 	records were available, neither the son nor the friend had the 	necessary authority to view the records. Accordingly, the appeal was 	adjourned for the necessary authority to be obtained.

12.	The appeal was re-listed for oral hearing on 29 April 2008. On 21 April 	2008, a form completed and signed by the appellant was received in 	The Appeals Service (TAS). This was a standard template form in 	which the appellant is asked to indicate her intentions with respect to 	attendance at the listed oral hearing of the appeal. The appellant ticked 	Box 2a which states ‘I am unable to come to the hearing and would like 	another date arranged because …’ The appellant added ‘I would like to 	get some advice as to what to do regarding my appeal.’

13.	The completed form was put before a legally qualified panel member 	(LQPM) as an application for a postponement of the oral hearing of the 	appeal. On 21 April 2008, the LQPM determined that:

	‘The appeal was received on 30.05.07. This is the third time of 	listing. I cannot accept that it is reasonable for her now to 	request a postponement so that she can get some advice 	almost 11 months after she appealed. Postponement refused.’    

14.	I should say at this stage that the decision made by the LQPM on the 	application for a postponement was entirely proper and cannot be 	faulted.

15.	On the basis of the refusal of the application for postponement, the 	appeal remained listed for oral hearing on 29 April 2008. The appellant 	did not attend the oral hearing and was not represented. The 	Department was also not represented. The record of proceedings for 	the appeal tribunal hearing records:

		‘Clerk to the Tribunal

	Mrs Keenan returned the AT6 form on 21 April 2008. She 	wanted another date for the appeal hearing stating that she 	needed to get advice about her appeal.
 
	A Chairman on 21 April 2008 refused this request on the basis 	that it had been 11 months since she had lodged her appeal so 	that she had sufficient opportunity to consult and seek advice.

	Notice of this refusal was sent to the [claimant] on 21 April. She 	did not reply and has not attended. The hearing was listed for 	10.30 am.

	The Tribunal decided to proceed at 10.45 am.

	The Tribunal therefore considered the appeal submission and 	appendices (including [the claimant’s] appeal letter received in 	May 2007 and several subsequent letters), the medical records 	and the papers relating to the DLA awards from 2001.’

16.	The appeal tribunal went on to disallow the appeal and to confirm the 	decision of the Department dated 30 November 2006

17.	On 4 September 2008, an application for leave to appeal to the Social 	Security Commissioner was received in TAS. 

18.	On 15 September 2008, the application was refused by the LQPM.

Proceedings before the Social Security Commissioner

19.	On 20 October 2008, a further application for leave to appeal to the 	Social Security Commissioner was received in the Office of the Social 	Security Commissioners and Child Support Commissioners. 

20.	On 25 November 2008 observations were sought from Decision 	Making Services (DMS) and these were received on 17 December 	2008. DMS opposed the application. An addendum to the observations 	was received on 16 January 2009.

21.	Observations were shared with the appellant on 19 January 2009. On 	24 February 2009 a further submission in reply to the observations was 	received from the appellant. 

22.	On 27 March 2009, I accepted the late application for special reasons. 	On that date, I also granted leave to appeal. In granting leave to 	appeal, I stated, as a reason, that an arguable issue arose as to 	whether the appeal tribunal gave adequate consideration to an 	adjournment of the appeal. 

23.	Further submissions were received from the appellant on 23 April 2009 	and from the Department on 18 May 2009.

Errors of law

24.	A decision of an appeal tribunal may only be set aside by a Social 	Security Commissioner on the basis that it is in error of law.

25.	In R(I)2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great 	Britain have referred to the judgment of the Court of Appeal for 	England and Wales in R(Iran) v Secretary of State for the Home 	Department ([2005] EWCA Civ 982), outlining examples of commonly 	encountered errors of law in terms that can apply equally to appellate 	legal tribunals. As set out at paragraph 30 of R(I)2/06 these are:

	“(i)	making perverse or irrational findings on a matter or 	matters that were material to the outcome (‘material 	matters’);
	(ii)	failing to give reasons or any adequate reasons for 	findings on material matters;
	(iii)	failing to take into account and/or resolve conflicts of fact 	or opinion on material matters;
	(iv)	giving weight to immaterial matters;
	(v)	making a material misdirection of law on any material 	matter;
	(vi)	committing or permitting a procedural or other irregularity 	capable of making a material difference to the outcome or 	the fairness of proceedings; …
Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’). Errors of law of which it can be said that they would have made no difference to the outcome do not matter.” 
The error of law in the present case

26.	Regulation 51 of the Social Security and Child Support (Decisions and 	Appeals) Regulations (Northern Ireland) 1999, as amended, provides 	that:

	Postponement and adjournment

	“51. (1) Where a person to whom notice of an oral hearing is 	given wishes to request a postponement of that hearing, he shall 	do so in writing to the clerk to the appeal tribunal stating his 	reasons for the request, and the clerk to the appeal tribunal may 	grant or refuse the request as he thinks fit or may pass the 	request to a legally qualified panel member who may grant or 	refuse the request as he thinks fit.

	(2) Where the clerk to the appeal tribunal or, as the case may 	be, the legally qualified panel member refuses a request to 	postpone the hearing he shall—

	(a) notify in writing the person making the request of the 		refusal; and

	(b) place before the appeal tribunal at the hearing both 	the request for the postponement and notification of its 	refusal.

	(3) The legally qualified panel member or the clerk to the appeal 	tribunal may of his own motion at any time before the beginning 	of the hearing postpone the hearing.

	(4) An oral hearing may be adjourned by the appeal tribunal at 	any time on the application of any party to the proceedings or of 	its own motion. …”

27.	Regulation 51 clearly sets out a difference between postponement and 	adjournment and it is generally accepted that postponement is 	applicable before the commencement of a hearing while adjournment 	is the relevant process after a hearing has begun.

28.	In CDLA/3680/97, consideration was given to the relationship between 	postponement and adjournment by a Commissioner in Great Britain. In 	that case, there had also been an unsuccessful application for a 	postponement of a listed oral hearing of an appeal. The appellant 	neither appeared nor was represented at the subsequent oral hearing 	of the appeal. The appeal tribunal proceeded in the absence of the 	appellant. Commissioner Rowland stated the following, at paragraphs 3 	to 5:

	‘3.	 I appreciate that chairmen and tribunals are under 			pressure 	to resist applications for postponements and 		adjournments 	because they have financial 			implications for the Independent 	Tribunal Service. No 		doubt there are many such applications 	that can properly 		be refused, but the overriding consideration 	must be 		the requirements of justice…

	4.	When the case came before the tribunal, they had to 			consider 	whether they should determine the case 		before them in the 	absence of the claimant. That is an 		issue that always arises 	when a claimant does not 			appear. It will seldom detain a tribunal 	for long if the 		claimant has not asked for a postponement and, 			indeed, I would not usually regard a tribunal as having 		erred in 	law if no mention is made in their decision 		of any consideration of adjourning because there will not 		usually be the slightest reason why a tribunal should 			adjourn a case merely because a claimant has failed to 		appear. However, different considerations arise where a 		request for a postponement has been made. The fact that 		it may have been considered and refused by a chairman 		does not relieve the tribunal of the responsibility of 			considering whether to adjourn the proceedings. In effect, 		a claimant who has failed to attend a hearing following a 		refusal of a postponement must be taken to have 			renewed that application to the tribunal. Of course, the 		fact that a postponement has already been refused is a 		material fact the tribunal can take into account when 			considering whether to adjourn the case, as can any 			comment made by the chairman when refusing the 			postponement which should have prompted the claimant 		to attend, but a chairman’s refusal will not always be 			conclusive, particularly if the claimant has had little time 		to act upon it. The tribunal is faced with the new fact that 		the claimant has actually failed to attend, whatever the 		hopes of the chairman might have been, and they are 			likely to have a greater grasp of the background to the 		case than a chairman considering the question of a 			postponement on an interlocutory application. 				Furthermore, if they proceed, they may have to consider 		what inferences to draw from the failure of the claimant to 		attend.

	5.	Therefore, where there has been an unsuccessful 			application for a postponement, the question whether the 		case should be adjourned must be considered afresh by 		the tribunal …’

29.	The decision in CDLA/3680/97 was considered by Commissioner 	Brown in C5/01-02(IB). At paragraph 5, Commissioner Brown held that 	CDLA/3680/97 was authority for the principle that:

	‘…non-attendance following refusal of a postponement 	application must be taken as a renewal of that application.’

30.	In the present case there was an unsuccessful application for a 	postponement of the oral hearing prior to the listed date. On the listed 	date, the appellant did not attend the oral hearing and was not 	represented. On the basis of the principles in CDLA/3680/97, as 	confirmed in C5/01-02(IB), the non-attendance must have been taken 	as a renewal of that application, and the prior consideration of the 	postponement application by the LQPM did not relieve the tribunal of 	the responsibility of considering whether to adjourn the proceedings. 	The appeal tribunal was under a duty to consider afresh an application 	for an adjournment. 

31.	Did the appeal tribunal in the present case consider an application for 	an adjournment? I have already set out above what was contained in 	the record of proceedings. The first four paragraphs are a factual 	account of the background to the earlier postponement application and 	its determination by the LQPM. The section is headed ‘Clerk to the 	Tribunal’, and, although I cannot be certain, I am assuming that what 	is recorded in the first four paragraphs was narrated to the appeal by 	the clerk. Additionally, and, again, although I cannot be certain, the 	appeal tribunal, or at least its legally qualified chairman may have 	considered the contents of the TAS administrative file to confirm what 	had been narrated.

32.	Paragraph 5 contains a decision. The decision is recorded as ‘The 	Tribunal decided to proceed at 10.45 am’. I have to be certain that in 	arriving at the decision, the appeal tribunal considered, in the absence 	of the appellant, and following an earlier unsuccessful application for a 	postponement, whether to adjourn the appeal tribunal hearing. I am not 	satisfied that it did. I am of the view that the appeal tribunal formed the 	view that it was bound by the earlier decision of the LQPM on the 	application for a postponement. Of course, and as Commissioner 	Rowland in CDLA/3680/1997, confirms, the ‘fact that a postponement 	has already been refused is a material fact the tribunal can take into 	account when considering whether to adjourn the case, as can any 	comment made by the chairman when refusing the postponement 	which should have prompted the claimant to attend.’ The appeal 	tribunal must consider the matter afresh, however, and, more 	importantly, must give an indication in the record of proceedings for the 	appeal tribunal hearing or the statement of reasons for the appeal 	tribunal’s decision, that it has considered the matter and must set out 	its reasons for or for not adjourning. That task is not an onerous one 	but is one which must be performed.       

33.	In the present case there is an indication that the appeal tribunal was 	aware of the earlier unsuccessful application for an adjournment. There 	is no clear indication, however, that it considered a fresh application for 	an adjournment, and set out its conclusions with respect to that 	application. 

34.	I am satisfied that the failure to indicate that it had considered an 	application for an adjournment, and to state its conclusions on that 	application, amounted to an irregularity capable of making a material 	difference to the outcome or the fairness of proceedings.

The appellant’s other grounds for appealing to the Social Security Commissioner

35.	Having found that there was a procedural irregularity which was 	capable of making a material difference to the outcome or the fairness 	of the proceedings, I do not have to consider the appellant’s other 	grounds for appealing. I would indicate, however, that I would not have 	found the decision of the appeal tribunal to be in error of law on the 	other grounds cited by the appellant. 

Disposal

36.	The decision of the appeal tribunal dated 29 April 2008 is in error of 	law. The error of law identified will be explained in more detail below.

37.	Pursuant to the powers conferred on me by Article 15(8) of the Social 	Security (Northern Ireland) Order 1998, I set aside the decision 	appealed against. 

38.	For further reasons set out below, I am unable to exercise the power 	conferred on me by Article 15(8)(a) of the Social Security (Northern 	Ireland) Order 1998 to give the decision which the appeal tribunal 	should have given, as there is evidence, including medical evidence, 	which was before the appeal tribunal but which is not before me. 	Additionally, as the appellant has now to be given the opportunity to 	have representation and/or to submit additional evidence for 	consideration. Accordingly, I refer the case to a differently constituted 	appeal tribunal for re-determination. 

39.	I would ask the appellant to note the following. The decision under 	appeal in this case is a decision of the Department dated 30 November 	2006, as reconsidered on 1 May 2007. The appeal was lodged on 30 	May 2007. It is not in the interests of the appellant for the hearing and 	the determination of the appeal to be delayed further. On receipt of this 	decision, the appellant will learn that her appeal has been referred to a 	differently constituted appeal tribunal for re-determination. If she 	wishes to have representation before that appeal tribunal she must be 	proactive in obtaining such representation, in informing TAS of the 	name and correct postal address for that representative, and in 	ensuring that both she and her representative are prepared for the oral 	hearing of the appeal, when next listed.  

40.	I am unsure as to whether there have been subsequent claims to DLA, 	since the date of the decision under appeal. If there have, then full 	details of these should be made available to the newly constituted 	appeal tribunal. The appeal tribunal is directed to take any evidence of 	subsequent claims to DLA into account in line with the principles set 	out in C20/04-05(DLA).

	(Signed):  K Mullan

	COMMISSIONER

	2 July 2009