ET-v-Department for Social Development (DLA) [2010] NICom 85
Decision No:  C35/10-11(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 7 August 2009

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	Having considered the circumstances of the case and any reasons put forward in the request for a hearing, I am satisfied that the appeal can properly be determined without a hearing.

2.	The claimant is represented by Mr Owen McCloskey of the Citizens Advice Bureau.  The Department is represented by Mr John Kirk of Decision Making Services.

3.	This case has a long history.  The claimant originally made a claim on 31 March 2006.  On 1 August 2006 it was decided that her claim should be disallowed from and including 31 March 2006.  Thereupon she appealed.  On 30 March 2007 an appeal tribunal decided to uphold the decision of 1 August 2006 to the effect that the claimant’s claim should be disallowed from and including 31 March 2006.  The claimant then sought leave to appeal to a Commissioner.  On 22 August 2007 the legally qualified member refused leave to appeal to a Commissioner.  However, on 28 January 2008 leave to appeal was granted by a Commissioner.  On 2 April 2008 a Commissioner set aside the tribunal’s decision and referred the appeal back to a differently constituted tribunal for a rehearing on the merits.  The new tribunal on 27 August 2008 decided that the claimant was entitled to the higher rate of the mobility component from 31 March 2006 to 2 October 2007.  The claimant then again sought leave to appeal to a Commissioner.  The legally qualified member refused leave to appeal to a Commissioner on 3 December 2008.  However, on 5 June 2009, a Commissioner granted leave to appeal and allowed the appeal and, again, set aside the decision appealed against and referred the case back to a differently constituted tribunal for re-determination.  On 7 August 2009 this tribunal disallowed the appeal and reaffirmed the original decision of the decision-maker to the effect that the claimant was not entitled to either the care or the mobility component of disability living allowance from and including 31 March 2006.  The claimant once again sought leave to appeal to a Commissioner but such leave was refused by the legally qualified member on 24 September 2009.  Nevertheless, leave to appeal was granted by a Commissioner on 18 June 2010 for the following reasons:

“It is arguable that the decision was wrong in law, because – 

(i)	the tribunal arranged for and held a pre-hearing discussion with the representative of the appellant and the department (as well as the three members of the tribunal) which was stated (by the legally qualified member in a letter dated 13 May 2010 in reply to a direction from the legal officer to the Commissioners) as being “an informal discussion off the record to try to establish the positions of the parties and to narrow the issues if possible” – but at which no record or minute was kept, yet at which an indication was given by the legally qualified member what the result of the appeal was likely to be;

(ii)	the tribunal at a pre-hearing unrecorded discussion, gave the impression that it had reached a conclusion in the case before hearing the evidence in the case.”

4.	Arising out of the issues raised in written submissions in this case it became apparent that an informal meeting took place at the request of the legally qualified chairman between the representatives of the claimant and the Department with the members of the tribunal.  The reasons for granting leave to appeal set out the issue in this case.

5.	Prior to the granting of leave to appeal Mr Kirk made the following relevant submission in a letter dated 2 June 2010:

“I note that the Department’s Presenting Officer has stated that they had no clear recollection as to whether such a meeting took place.  In contrast the LQM has indicated in his response that there was a meeting in the form of a short discussion to establish the position of both parties to the hearing.  It is my submission that there are no reasons why such a discussion could not have formed part of the formal proceedings and have been recorded and as previously stated in my response of 14 April 2010 the tribunal’s failure to record such a meeting would constitute an error in law.

I also note that at paragraph 2 of his minute the LQM has stated that he had indicated to (the claimant’s) representative that the tribunal’s preliminary view was that any improvement on the current award would be unlikely.  Such a comment by a tribunal prior to the hearing could lead to the conclusion that the tribunal had already reached its conclusions prior to hearing evidence from either (the claimant) or her representative.  I would therefore submit that there has been a breach of the rules of natural justice in that there would be a perception that (the claimant) did not receive a fair hearing.

… I now accept that the tribunal has erred in law as contended and I would support (the claimant’s) application for leave to appeal.”

6.	Mr McCloskey has always contended that the pre-hearing meeting was inappropriate and unfair.

7.	While I have powers, conferred on me by Article 15(7) of the Social Security (Northern Ireland) Order 1998 to set aside this decision without giving reasons, as both parties agree that the decision was in error of law, it is not appropriate for me so to do in a case where such fundamental issues concerning tribunal procedure have arisen.

8.	In my view Mr Kirk is correct to state that there are no reasons why such a discussion could not be part of the formal proceedings.  He is also correct to state that any discussion should have been recorded in the appropriate record of proceedings.  In addition he is correct to state that the comment of the tribunal prior to the hearing (but not part of the hearing) could have led to the conclusion, from the claimant’s point of view that the tribunal had already made up its mind.  Mr McCloskey agrees with Mr Kirk’s view of the case.

9.	In light of the unusual course of events which occurred immediately before the tribunal hearing, the inevitable result is a finding that the tribunal erred in law in holding the meeting which was inextricably connected to the proceedings but which was not part of the formal appeal tribunal proceedings.  Accordingly I allow the appeal, set aside the tribunal’s decision and refer the case back to a new tribunal in exercise of the powers conferred on me by Article 15(8)(b) of the Social Security (Northern Ireland) Order 1998.

10.	I have come to the decision that the appeal must be referred back to a new tribunal in spite of the clear wishes of the claimant’s representative for me to decide the case.  However, with considerable reluctance in light of the long convoluted history of this case, I consider that it would be improper for me, as a Commissioner hearing an appeal on a point of law, to give the decision which the tribunal should have given, as I cannot do so without making fresh or further findings of fact.  The appropriate body to decide such findings is a tribunal consisting of three members with the appropriate expertise.  Therefore I cannot exercise the powers conferred on me by Article 15(8)(a) to decide the case.  Accordingly, as stated in the previous paragraph, I refer the case to a new tribunal under Article 15(8)(b).  I emphasise that, as my jurisdiction is limited to issues of law, the decision to allow the appeal is no indication of the likely outcome of the rehearing.

(signed)  J A H Martin QC

Chief Commissioner

6 September 2010