SCY-v-Department for Social Development (DLA) [2010] NICom 122
Decision No:  C6/10-11(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 8 May 2009

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant, with the leave of the legally qualified panel member (LQPM), against a decision of the appeal tribunal affirming the decision of the decision-maker to the effect that from and including 28 April 2008, the claimant is not entitled to any award of care or mobility component of disability living allowance (DLA).

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

3.	On 28 April 2008 the claimant made a claim for DLA.  On 30 September 2008 it was decided that the claim should be disallowed from and including 28 April 2008.  On 30 October 2008, after a reconsideration request, the decision of 30 September 2008 was reconsidered.  On 1 December 2008 the claimant appealed.  The appeal was outside the prescribed time limit.  However a decision-maker decided to admit the late appeal.

4.	The appeal on 8 May 2009 before the tribunal was by way of a “paper” hearing.  The appeal was disallowed.  A late application for leave to appeal was made to the LQPM on 23 August 2009.  Nevertheless the LQPM accepted the late application and, in addition, granted leave to appeal.  However, the claimant failed to lodge her appeal in time as the appeal only arrived at the Office of the Social Security Commissioners on 20 January 2010.  However a Commissioner, on 20 August 2010 accepted the late appeal for special reasons.  These reasons were set out in the Commissioner’s determination dated 20 August 2010.

5.	The claimant has represented herself throughout.  In the present proceedings the Department is represented by Mrs Claire Hulbert of Decision Making Services.

6.	The claimant’s contention is that the tribunal erred in law as her medical records were not called upon when the tribunal was making its decision and also that no effort was made to obtain these, even though permission had been given by the claimant to obtain them.

7.	Mrs Hulbert very properly in her capacity as amicus curiae made the following points in favour of the claimant.  The claimant consented to the appeal proceeding without an oral hearing.  Accordingly a “paper” hearing, took place on 8 May 2009.  In the record of proceedings the tribunal noted that it was aware that the claimant had given consent for the release of her medical records but it also noted that these were not available on the day of the hearing.  The claimant had consented to the release of her general practitioner (GP) records.  Accordingly it is reasonable for her to assume that these records could assist her appeal before the tribunal.  In addition, there was a legitimate expectation on the part of the claimant that these records would be before the tribunal and also be considered by it.  Mrs Hulbert also submitted that the tribunal should have adjourned the appeal in order for the tribunal either to obtain the relevant medical records or to advise the claimant that the records were not available so that she could be afforded an opportunity to obtain and submit copies of the records.  She also submitted that the tribunal’s failure to adjourn these proceedings cast a doubt as to whether or not the claimant was afforded a fair hearing at the appeal.  Accordingly Mrs Hulbert agreed that the decision of the tribunal was erroneous in law and she supported the appeal.

8.	The claimant had accepted that her appeal could be dealt with appropriately by a “paper” hearing.  However she had a reasonable expectation that her GP notes would have been available to the tribunal and would form part of her case.  The tribunal, however, did not have the advantage of seeing these notes.  There might have been sufficient evidence for the tribunal to adjudicate upon the issues but, in my view, Mrs Hulbert is correct to concede that, in all the circumstances, the claimant did not have a fair hearing of her appeal.

9.	Accordingly, I allow the claimant’s appeal and set aside the tribunal’s decision.  In the circumstances I refer the matter to a differently constituted appeal tribunal for rehearing.  I do so reluctantly as I realise that many months have passed since the date of the original decision-maker’s decision.  This has to a large extent been caused or occasioned by the claimant failing to keep the relevant time limits when contesting the decision-maker’s original decision.  Be as that may, it is not appropriate for me to give the decision that the tribunal ought to have given, because I cannot so do without making fresh or further findings of fact.  It is for the appropriately constituted tribunal to make such findings.  Therefore I refer the case to a fresh tribunal under the provisions of Article 15(8)(b) of the Social Security (Northern Ireland) Order 1998 to decide the case on the merits.  I direct the Appeals Service to give the claimant a further opportunity to attend an oral hearing of this appeal.  It may be in the claimant’s interests to attend such a hearing but I emphasise that it is entirely a matter for the claimant whether she wishes so to do.

10.	The success of this appeal to a Commissioner should not be taken as an indication of ultimate success by the claimant in the proceedings before the new tribunal.

(signed):  J A H Martin QC

Chief Commissioner

1 December 2010