Decision No:  C26/09-10(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILIITY LIVING ALLOWANCE

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 12 September 2008

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 application can properly be determined without a hearing.

2.	I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.

3.	The decision of the appeal tribunal dated 12 September 2008 is in error of law.  The error of law identified will be explained in more detail below.

4.	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.

5.	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 may be additional medical evidence which requires to be considered, and further findings of fact which require to be made.  Further I do not consider it expedient to make such findings, at this stage of the proceedings.  Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.

6.	In referring the case to a differently constituted appeal tribunal for re-determination, I direct that the appeal tribunal, and the parties to the proceedings, take into account the guidance set out below.

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

	Background

8.	On 29 August 2007, a decision-maker of the Department decided that the applicant was not entitled to DLA from and including 19 August 2007, on the basis of a renewal claim to that benefit.

9.	An appeal against the decision dated 29 August 2007 was received in the Department on 18 October 2007.

10.	An appeal tribunal hearing took place on 28 March 2008.  The detail of what took place at that appeal tribunal hearing will be examined below.  For the moment, it is sufficient to note that the appeal was adjourned with further directions having been made by the appeal tribunal.

11.	A further appeal tribunal hearing took place on 12 September 2008.  The appellant was present with his daughter.

12.	The appeal tribunal disallowed the appeal and confirmed the decision dated 29 August 2007.

13.	On 19 December 2008 an application for leave to appeal to the Social Security Commissioner was received in The Appeals Service. In the application, the appellant cited the following grounds, on which he submitted that the decision of the appeal tribunal was in error of law:

(i)	he felt that his medical condition had not changed since the time when he was in receipt of DLA; and

(ii)	he felt that the appeal tribunal had applied an inappropriate burden of proof in his case as any ambiguity should have been resolved in his favour.

14.	On 7 January 2009, the application for leave to appeal was refused by the legally qualified panel member (LQPM).

	Proceedings before the Social Security Commissioner

15.	On 4 February 2009, 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.  The appellant was now represented.  The grounds cited in the further application were the same as had been cited in the application to the LQPM.

16.	On 2 March 2009 further correspondence was received from the appellant’s representative.

17.	Following clarification, the appellant’s representative confirmed that he wished the circumstances outlined in his letter of 2 March 2009 to be incorporated into his grounds of appeal.

18.	Accordingly, the appellant was also submitting that:

(i)	he should not have been put in the position of carrying on with his appeal, following the earlier adjournment, as it should not have been listed without the required medical evidence or without confirmation that a presenting officer from the Department should attend;

(ii)	the record of proceedings for the appeal tribunal hearing was not accurate;

(iii)	following the adjournment of the appeal, the appeal tribunal should have arranged for him to be medically examined, as it would then have been in possession of up to date medical evidence;

(iv)	he had been medically examined in respect of a successful claim to incapacity benefit (IB), and his medical condition in respect to that benefit was no different;

(v)	the appeal tribunal had disallowed his appeal on the basis of medical evidence from his General Practitioner (GP), and yet the same evidence from the GP had formed the basis of an earlier successful claim to DLA.

19.	On 15 April 2009, observations were sought from Decision Making Services (DMS) and these were received on 14 May 2009.  DMS opposed the application on the majority of the grounds cited by the appellant.  In relation to the appellant’s ground concerning the continuation of the appeal, despite the failure to action the terms of adjournment, DMS submitted that:

‘In the original appeal hearing dated 28 March 2008 [the claimant] initially stated that he was happy to proceed but later in the record of proceedings it was recorded

“Agreeable to adjourn, it would be in my interests.

Agreeable as General Practitioner records will have orthopaedic notes which will show my mobility 2003-2005 which has not improved.”

This would suggest that the tribunal offered [the claimant] the opportunity to adjourn because the orthopaedic notes would form an integral part of the evidence presented.  Consequently the Legally Qualified Member directed that the Appeals Service request from the GP orthopaedic reports from 2003 to 2005.

At the relisted hearing dated 12 September 2008 the tribunal recorded that:

“This hearing was adjourned on 28.03.2008 for, inter alia, The Appeals Service to obtain the orthopaedic letters 2003-2005 (the letter to do this was written but not sent) and for The Appeals Service to request a Departmental Presenting Officer to attend (this has not been done).”

The tribunal has recorded [the claimant] consenting to it proceeding with the medical evidence available.  [The claimant] stated that whilst he agreed to do this he felt it unfair to be put in this position as the tribunal did not have before it evidence which he felt was relevant to his claim.  The tribunal adjourned originally on 28 March 2008 in order to obtain the aforementioned medical evidence.  In the relisted appeal the tribunal then stated that The Appeals Service had possession of a written letter to obtain this information but did not send it.  As [the claimant] felt this evidence was relevant to determining his claim, I would submit that the hearing should have been adjourned further in order for this information to be obtained.  I would submit that failure to do this breaches the rules of natural justice and fair play.  In paragraph 26 of reported decision R(S)4/82(T) a Tribunal of GB Commissioners stated:

“Natural justice requires that the procedure before any tribunal which is acting judicially shall be fair in all the circumstances.  It has been described as “fair play in action” and its requirements depend on the circumstances of the case, the nature of the enquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with and so on…. There are accordingly no hard and fast rules that apply to all tribunals.  But in the case of an appeal by a claimant for benefit to a local tribunal, for practical purposes these requirements can be reduced, as indicated by Lord Justice Diplock (as he then was) in Moore’s case at pages 486 et seq to three; an absence of personal bias or mala fides on the part of a tribunal, an obligation to base their decision on evidence and, whether or not there is an oral hearing, to listen fairly to the contentions of all persons entitled to be represented.”

Unreported decision C31/02-03(IB) also looked at the role tribunals played in dealing with unrepresented claimants.  In paragraph 19 Chief Commissioner Martin stated:

“Mrs Gunning has put considerable weight on the fact that the claimant did not object to the course of action being taken by the Tribunal.  However, as stated earlier in this decision, I do not consider that one can assume that an unrepresented claimant would be in a position to understand the implications of an agreement to go on with the case.  At the very least I consider that, before the Tribunal came to its decision which was a decision against the claimant, it ought to have considered specifically whether or not to have obtained a further medical report… I can conceive of a situation where the Tribunal could have been correct to continue if the clear implications of what was happening had been explained to the claimant.  However, the very full record of proceedings in this case does not show that the matter was dealt with by the Tribunal in any way.”

In light of the above decisions I would submit that the tribunal did not deal sufficiently with the absence of the orthopaedic reports which was one of the reasons why the original appeal was adjourned.  Failure to do so is a breach of natural justice and renders the decision erroneous in law.’

20.	Observations were shared with the appellant on 8 June 2009.

	Errors of law

21.	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.

22.	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 instant case

23.	As was noted above, an appeal tribunal hearing took place on 28 March 2008.  The record of proceedings for that appeal tribunal hearing includes the following:

‘Agreeable to adjourn, it would be in my interests.

Agreeable as General Practitioner records will have orthopaedic notes which will show my mobility 2003 – 2005 which has not improved.’

24.	The appeal was adjourned by the appeal tribunal.  The stated reasons for the adjournment were as follows:

‘1)  He was allowed in 2003 for 2 years (High Rate Mobility and Low rate Care) despite J M’s reports of 26.11.03.  He says he is the same or slightly worse since seen by an Examining Medical Practitioner in 2005 but the General Practitioner records do not go back that far. We need clarification.

2) the Department has not seen his written submission.’

The appeal tribunal then made the following directions:

‘Adjourned for 1) The Appeals Service to request from his General Practitioner the Orthopaedic reports from 2003 to 2005.  2) And then relist as soon as possible.  3) For The Appeals Service to copy his written submission to the Department.  4) Departmental Presenting Officer to attend.’

25.	What is salient about the adjourned appeal tribunal hearing is that the impetus for the adjournment had come from the appeal tribunal itself.  The phrase ‘We need clarification’ in the stated reasons for the adjournment is testament to that.  Equally, the appeal tribunal directed the attendance of a Departmental presenting officer.  It is not clear, from the record of proceedings for the adjourned oral hearing, the stated reasons for the adjournment or in the adjournment directions themselves, why the appeal tribunal thought that the presence of the Departmental presenting officer was necessary.  The appellant had produced a written submission which was noted by the appeal tribunal not to have been seen by the Department.  It may have been the case that the appeal tribunal was seeking comment from the Department on the issues raised by the appellant in his written submission, but this is not at all clear.

26.	The substantive oral hearing of the appeal took place on 12 September 2008.  In the record of proceedings for this appeal tribunal hearing, the following is recorded:

‘This hearing was adjourned on 28.03.08 for, inter alia, The Appeals Service to obtain the orthopaedic letters 2003-2005 (- the letter to do this was written but not sent) and for The Appeals Service to request a Departmental Presenting Officer to attend (this has not been done).  (His written submission was copied to the Department on 15.04.2008).

[The claimant]

It is 6 months and I wish to proceed.’

	In the statement of reasons for the appeal tribunal’s decision, it is noted that:

‘[The claimant consented to our proceeding with the medical evidence today.’

27.	It is clear, therefore, that the terms of the adjournment of the first appeal tribunal hearing were not met and the directions arising from that adjournment were not complied with.  Accordingly, the medical evidence which the appeal tribunal wished to have before it was not, in fact, before it, and no presenting officer was in attendance, as directed.

28.	What is not at all clear is the reason why the appeal tribunal decided to proceed with the appeal tribunal hearing despite the failure to adhere to the terms of the adjournment, and the failure to comply with the stated directions.  More importantly, it is not all clear why the appeal tribunal, having stated, at the adjourned oral hearing, a requirement for clarification of certain issues arising in the appeal, by seeking additional medical evidence, then concluded that it could hear and determine the relevant issues without sight of that evidence.

29.	Some of the appeal tribunal’s conclusions, as set out in the statement of reasons for its decision, are based on the absence of corroborating evidence.  For example, at paragraph 5 of the reasons in respect of the mobility component of DLA, it is stated that:

‘[The claimant’s] claim for high rate mobility is based on his assertion that his mobility has not improved since he was allowed it from 2003 to 2007.  We do not accept this.  There is nothing independent before us to show that his injury has not followed the normal progression in such cases ie improved mobility with time and healing.’

30.	The issue of whether the appellant’s medical condition had improved since the dates and periods of his first award of entitlement to DLA, and the periods during which he was attending a hospital orthopaedic department, was precisely the issue which had been raised by the appeal tribunal at the first oral hearing of the appeal.  The reasons for the adjournment make it clear that the appeal tribunal, not the appellant, was seeking clarification as to whether the appellant’s medical condition was the same or slightly worse than in 2005, as the GP records, which had been made available to the appeal tribunal did not go back to that date.

31.	It may have been the case, although this is not clear from the record of proceedings for the appeal tribunal hearing nor from the statement of reasons for the appeal tribunal’s decision, that the LQPM put the issue of the failure to meet the terms of the adjournment the lack of compliance with the directions, and that the appellant insisted on the appeal continuing despite that failure.  The appellant intimates at that in his further correspondence dated 2 March 2009.  Further, and as was noted above, the statement of reasons for the appeal tribunal’s decision begins with the statement that the appellant consented to the appeal tribunal proceeding with the medical evidence available on that day.

32.	In C31/02-03(IB), in an appeal relating to incapacity benefit, the appeal tribunal proceeded to hear and determine the appeal, despite the absence of certain evidence, in the form of a questionnaire and a medical report which had formed part of the evidential basis on which the decision under appeal had been made.  The LQPM had noted that the appellant, who was unrepresented, did not object to that course of action.  In his decision, Chief Commissioner Martin made the following observations, at paragraph 19:

‘Mrs Gunning has put considerable weight on the fact that the claimant did not object to the course of action being taken by the Tribunal.  However, as stated earlier in this decision, I do not consider that one can assume that an unrepresented claimant would be in a position to understand the implications of an agreement to go on with the case.  At the very least I consider that, before the Tribunal came to its decision which was a decision against the claimant, it ought to have considered specifically whether or not to obtain a further medical report and/or an IB50.  I can conceive of a situation where the Tribunal could have been correct to continue if the clear implications of what was happening had been explained to the claimant.  However, the very full record of proceedings in this case does not show that the matter was dealt with by the Tribunal in any way.’

33.	As in C31/02-03(IB), I cannot elicit from any of the documentation which was before me that the appeal tribunal addressed the issue of the absence of the relevant medical evidence, in light of the clear terms of adjournment which had directed the production of that evidence to assist in the clarification of certain of the issues arising in the appeal.  Additionally, and as in C31/02-03(IB), the appellant in the instant case was unrepresented, and cannot be assumed to have understood the implications of an agreement to go on with the appeal.  The appellant may have been anxious to continue with his appeal, in light of the length of time since the date of the decision under appeal, and in light of the time which it took to re-list the adjourned hearing.  Nonetheless, the appeal tribunal was under a duty to consider any submission with respect to the continuance of the appeal, in light of its own adjournment decision, and the failure to comply with the directions which it had issued.  The appeal tribunal has given no indication that it put its mind to these significant matters.  As in C31/02-03(IB), I consider that the appeal tribunal’s approach was in breach of the principles of natural justice and therefore the decision of the appeal tribunal was in error of law.

	The absence of a presenting officer

34.	One of the directions which had been made by the appeal tribunal at the first adjourned oral hearing was that a Departmental presenting officer should attend the next oral hearing of the appeal.  As I noted above, it is not clear, from the record of proceedings for the adjourned oral hearing, the stated reasons for the adjournment or in the adjournment directions themselves, why the appeal tribunal thought that the presence of the Departmental presenting officer was necessary.  In any event, this direction was not also complied with and no Departmental presenting officer was present.  I would not have regarded the absence of the Departmental presenting officer to have been sufficient to have rendered the decision of the appeal tribunal as being in error of law.  Nonetheless, I would repeat what I said in CSC/3/07-8, at paragraphs 68 to 71, concerning the importance of the attendance of presenting officers at oral appeal tribunal hearings.

	The appellant’s other grounds for appealing

35.	Having found that the decision of the appeal tribunal is in error of law, 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 12 September 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 may be additional medical evidence to be considered, and further findings of fact which require to be made.  Further I do not consider it expedient to make such findings, at this stage of the proceedings.  Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.

39.	In referring the case to a differently constituted appeal tribunal for re-determination, I direct that:

(i)	the Department prepares an addendum to the appeal submission which sets out the decision-making and appellate history since the decision of the substantive appeal tribunal hearing;

(ii)	a Departmental presenting officer is to attend the next oral hearing of the appeal;

(iii)	the appellant is to ensure, in advance of the next oral hearing of the appeal, by contacting his GP directly, that all relevant medical evidence, including medical evidence relating to attendance at hospital orthopaedic departments, is ready and available for the appeal tribunal;

(iv)	it will be for both parties to the proceedings to make submissions, and adduce evidence in support of those submissions, on all of the issues relevant to the appeal;

(v)	it will be for the appeal tribunal to consider the submissions made by the parties to the proceedings on these issues, and any evidence adduced in support of them, and then to make its determination, in light of all that is before it.

(signed)  K Mullan

Commissioner

4 August 2009