SG-v-Department for Social Development (DLA)(T) [2013] NICom 12

Decision No:  C37/11-12(DLA)(T)

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 June 2011

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant from the decision of an appeal tribunal which sat on 8 June 2011 at Ballymena.  Leave to appeal was granted by the legally qualified member (LQM) of the tribunal.

2.	On 20 June 2012, the Chief Commissioner directed, in exercise of the powers conferred on him by Article 16(7) of the Social Security (NI) Order 1998, that this appeal be dealt with by a Tribunal of Commissioners as it involved a question of law of special difficulty.  We held a hearing of the appeal on 30 November 2012.

3.	For the reasons we give below, we consider that the decision of the appeal tribunal was erroneous in point of law.  We set aside the decision of the tribunal under Article 15(8)(b) of the Social Security (NI) Order 1998 and we refer it to a newly constituted tribunal for determination.

REASONS

	The background circumstances and the tribunal decision

4.	The claimant claimed disability living allowance (DLA) from the Department for Social Development (the Department) on 24 March 2009.  The claim was based on care and mobility needs arising from a variety of conditions including severe back pain, arthritis, muscle spasms, hiatus hernia, pins in his right leg, depression, sleeping disorder, heart problems and two operations for a detached retina.  By a decision of 26 July 2009 the Department disallowed the claim.  The claimant brought an appeal against that decision. 

5.	The appeal was listed for hearing on 30 November 2009.  However, on 23 November 2009 the claimant requested a postponement on the basis of “depression and other illnesses” and indicated that he would obtain a letter from his general practitioner (GP) when he returned from holiday with a view to arranging another date.  On 25 November 2009 a LQM of the tribunal granted a postponement.

6.	The appeal was relisted for hearing on 13 January 2010.  On 9 January 2010 the claimant again wrote to request a postponement.  This was on the basis that his GP had advised him to send in his medical notes to the tribunal and he would need more time to do this.  A supporting letter to this effect from the GP, dated 8 January 2010, was enclosed.  At this time the claimant had not yet consented in writing to the release of his medical records and it would appear from the file that the application for postponement was not dealt with by the Appeals Service.  Instead, an oral hearing was convened on 13 January 2010.  The claimant attended.  At the hearing the claimant signed a relevant consent form and the tribunal adjourned the appeal in order to enable the claimant’s medical records to be obtained and to enable him to obtain representation.

7.	The appeal was relisted for hearing on 14 April 2010. On 6 April 2010 the claimant wrote to request a postponement.  This was on the basis that he had not got anyone to represent him yet.  On 12 April 2010 a LQM granted the postponement.

8.	The appeal was not relisted until 13 October 2010.  The claimant made a request for postponement on 7 October 2010, indicating that he had prostate cancer and was awaiting scan results.  This was an unsigned application and it appears that the postponement application was rejected by the clerk to the tribunal on that basis.  We observe that regulation 51 of the Social Security and Child Support (Decisions and Appeals) Regulations (NI) 1999 (“the Decisions and Appeals Regulations”) requires an application for postponement to be in writing and to state reasons for the postponement request.  Unlike regulation 33 of the Decisions and Appeals Regulations which governs appeals, however, there is no express requirement that a postponement application should be signed by the person making the application.  It therefore appears to us that it was a valid postponement request.  However, it was not dealt with.

9.	On 13 October 2010 the tribunal convened to hear the appeal.  The claimant did not attend.  The tribunal found that the claimant still had no representative and that his GP records had not been provided to the tribunal.  The tribunal adjourned, indicating that the appeal would not be adjourned on any future occasion without compelling evidence.

10.	On 15 October 2010, a direction was issued by a clerk to the tribunal that the appeal should be relisted as a “special”.  This meant that the case was directed to be listed before the identically constituted panel as had adjourned the appeal on 13 October 2010.  The clerk who issued the direction to list the case before the same panel members indicated that “the panel have engaged in hearing this appeal”.  This is a somewhat surprising direction, since the hearing adjourned without any evidence being recorded.  It is also more difficult to convene a “special” tribunal, as this requires a slot to be found which is suited to the diaries of three particular individuals, and typically introduces a greater possibility of delay in concluding appeal proceedings.

11.	The appeal was listed for a hearing on 5 January 2011.  The claimant requested a postponement on the basis that he had a hospital appointment on the same date for treatment relating to prostate cancer, enclosing a confirmatory appointment letter.  On 22 December 2010 a clerk of the tribunal postponed the hearing.

12.	The appeal was relisted for hearing on 2 March 2011.  A further postponement application was made by the claimant, on the basis that he was having tests done on his mouth, throat and neck and that he would have to wait some time for the results, enclosing an appointment letter for 17 February 2011.  On 25 February 2011 a LQM refused an application to postpone the hearing, as the appointment did not coincide with the hearing date.  He directed that the claimant should be notified of the refusal by telephone, and indicating that the hearing should proceed on 2 March 2011, even in his absence.

13.	On 26 February 2011 the applicant wrote again to state that he had to attend hospital to get a zodalex implant injection on 2 March 2011, as part of the treatment of his prostate cancer, and that he required these every four weeks.  He reiterated his postponement request.  This further application was received on 1 March 2011 and was apparently not dealt with by the Appeals Service.

14.	The tribunal was convened on 2 March 2011.  The tribunal adjourned the appeal on the basis of the claimant’s hospital appointment and directed that particular future dates (30 March 2011 and 27 April 2011) on which the four weekly injection was to be given should be avoided for the reconvened hearing.  At the same time the tribunal directed that a letter should be sent to the claimant explaining that the tribunal might proceed in his absence if he did not attend on the next occasion.  The letter also advised the claimant of the fact that it was dealing with an appeal from a decision of 26 July 2009 and that, as it was concerned with the circumstances around that date, the tribunal would not need to know about his recent cancer diagnosis.  This letter was issued to the claimant on 8 April 2011, some five weeks after the hearing date.

15.	Although he had notified the Appeals Service on 26 February 2011 that his treatment was on specific dates 28 days apart, and had given notice of two of the relevant dates in the next eight weeks, the appeal was not listed again for hearing until 8 June 2011.

16.	The claimant’s application for postponement dated 30 May 2011 was received by the Appeals Service on 1 June 2011.  The application was on the basis that he was by now attending hospital on a daily basis for a period of eight weeks for radiotherapy for advanced prostate cancer.  There is nothing on the file to indicate that the Appeals Service made any response to this postponement application before the date of hearing.

17.	The appeal tribunal was convened on 8 June 2011.  The claimant did not attend.  The relevant part of the record of proceedings reads as follows:

“DOCUMENTS CONSIDERED

Appeal submission

AT16 report 19.05.11 from Dr …. and full medical records.

Hearing clerk: [The claimant] sent a letter to Appeals Service a few days ago to request a further postponement.  Reason for the postponement request is that [the claimant] has another hospital appointment today.

Legally Qualified Member: Appeal letter was sent to [the claimant] on 08.04.11 by Appeals Service.  This indicated that the tribunal may “still decide to go ahead with the appeal in your absence if you do not attend next time”.  This case has now been postponed or adjourned 7 times and [the claimant] has attended on one occasion.  There is no reason to believe that if we adjourn again today that [the claimant] will attend next time.  Further, we have quite detailed medical records which of this stage are likely to give a more accurate description of symptoms and junction [sic] than the appellant’s oral evidence.

At this stage memory is likely to be unreliable.

So I would refuse the postponement request and finally determine the appeal.

(Members agree to proceed in appellant’s absence)…”

18.	The tribunal proceeded to hear the case in the claimant’s absence and disallowed the appeal.

19.	In the course of the appeal proceedings before the tribunal, it can be seen that there were eight separate postponement requests, four of which were rejected or not dealt with, leading to three decisions to postpone, and three to adjourn, the proceedings.

20.	On 5 July 2011 the claimant requested a statement of reasons for the tribunal’s decision.  This was issued to him on 13 September 2011.  The claimant then sought leave to appeal to the Social Security Commissioner from the LQM.  His main ground was that it was not fair to proceed to hear the appeal in his absence on a date when he had a hospital appointment for treatment for his cancer.  On 14 October 2011 the LQM granted leave to appeal.  The point of law on which he grants leave is whether the tribunal was correct in law to refuse a further postponement request.

	Submissions

21.	The claimant candidly admits in his grounds of appeal that he does not know what points of law are.  He addresses the health problems he has experienced and expresses concern that his cancer has not been referred to by the tribunal.  However, his main complaint is that the tribunal “deliberately” held a hearing on a date which he could not attend, questioning the justice and fairness of the tribunal procedure.

22.	On 4 January 2012, the Department was invited to make observations on the grounds of appeal.  Mr Kirk responded for the Department on 20 January 2012.  Mr Kirk submitted as follows:

	(i)	the postponement application of 1 June 2011 was required to have been considered prior to the hearing and its outcome notified to the claimant as a matter of law – against this background, the tribunal erred in law by proceeding to determine the appeal;

	(ii)	the tribunal was correct in not considering any deterioration of the claimant’s condition after the date of the appealed decision of 26 July 2009;

	(iii)	the tribunal erred in law by failing to address concerns expressed by the claimant about the examining medical practitioner (EMP) report contained in his 7-page letter of appeal;

	(iv)	the tribunal had erred in law by failing to consider a letter from Dr ……. concerning the claimant’s mental health;

	(v)	although the claimant did not see his medical records prior to the tribunal hearing, as he did not attend, this was not an error of law.

23.	The claimant was given an opportunity to respond to Mr Kirk’s observations, but he did not reply. 

	Relevant legislation

24.	The procedures which regulate the postponement, decisions to proceed with an appeal in the absence of an appellant and adjournment appear at regulations 49 and 51 of the Social Security and Child Support (Decisions and Appeals) Regulations (NI) 1999 (“the Decisions and Appeals Regulations”).  These regulations provide, so far as is relevant, as follows:

“Procedure at oral hearings

49.—(1) Subject to the following provisions of this Part, the procedure for an oral hearing shall be such as the chairman or, in the case of an appeal tribunal which has only one member, such as that member, shall determine.

…

(4) If a party to the proceedings to whom notice has been given under paragraph (2) fails to appear at the hearing, the chairman or, in the case of an appeal tribunal which has only one member, that member, may, having regard to all the circumstances including any explanation offered for the absence, proceed with the hearing notwithstanding his absence, or give such directions with a view to the determination of the appeal as he may think proper.

…

(7) At an oral hearing—

	(a) any party to the proceedings shall be entitled to be present and be heard; and

	(b) …

…

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.”

	Directions

25.	On 20 June 2012, the Chief Commissioner directed, in accordance with Article 16(7) of the Social Security (NI) Order 1998, that this appeal be dealt with by a Tribunal of Commissioners as it involved a question of law of special difficulty.

26.	The parties were directed to prepare summaries of the case which they proposed to advance at the hearing of the appeal.  They were directed to address further questions relating to the interrelationship between the rules governing postponement, adjournment and proceeding in a claimant’s absence, and as to how the rules were applied in the present case.

27.	A case summary was received from the Department on 30 October 2012.  No case summary was received from the claimant.  However, he made a written submission on 28 November 2012.  To this, he attached a recent letter from his GP and a copy of his hospital treatment appointment card for the months of May and June 2011.  This latter document was already on file.

28.	Following the receipt of the Department’s case summary, it became evident that the Department had resiled from the position set out in Mr Kirk’s earlier observations to the effect that a lack of compliance with procedural rules governing postponement meant that the tribunal decision was wrong in law.  In the meantime, the claimant remained unrepresented and indicated that he would not be attending the hearing.

29.	In these circumstances, we considered that we would wish to have the benefit of argument on certain issues arising from the claimant’s submission that the failure to postpone or adjourn but to proceed in his absence was procedurally unfair.  In the absence of a party who would articulate this argument, we invited Mr Hatton of Law Centre (NI) to act as amicus curiae in the proceedings.

The Hearing

30.	The claimant did not attend the hearing and he was not represented.  The Department was represented at hearing by Mr Gough, who dealt with arguments relating to the general application of the procedure rules, and by Mr Kirk, who dealt with specific matters relating to the evidence in the particular case.  We are grateful to Mr Gough and Mr Kirk for their helpful submissions.

31.	Mr Hatton appeared as amicus curiae, having been furnished with a written summary of the case which omitted all reference to the detail of the claimant’s confidential personal and medical circumstances, the Department’s case summary and initial observations and a redacted version of the record of the tribunal proceedings and previous adjournment decisions.  We are grateful to Mr Hatton for his careful written and oral submissions in the case, prepared at short notice and, due to the need to respect the claimant’s privacy, without a full knowledge of the details of the case.

32.	We requested submissions on the interrelationship between the rules governing postponement, adjournment and proceeding in an appellant’s absence, and as to how the rules were applied in the present case.

33.	Mr Gough submitted that if a postponement was requested, the clerk or legal member should normally consider the application prior to the hearing.  If it was refused, and the claimant failed to appear at a hearing, the LQM alone should decide whether to proceed in the claimant’s absence.  Where the hearing proceeded in the absence of the claimant, and a postponement had been refused, the postponement application should be dealt with by the tribunal as a whole as an adjournment application.  If it decided to proceed, but an issue arose which made it think that adjournment was appropriate, the panel could decide to adjourn under regulation 51(4).  He submitted that the tribunal had correctly followed the relevant procedures.

34.	Although the postponement request in the present case was not dealt with prior to the hearing, he submitted that there was no legal obligation to make such a decision.  He submitted that the use of the word “may” in regulation 51(1) gave a clerk or a LQM power to postpone a hearing, but that it did not give rise to any legal requirement to determine the application for postponement before a hearing, as might be implied if the word “shall” was used.

35.	By contrast Mr Hatton submitted that there was a mandatory requirement to decide a postponement application, and a general requirement to make decisions judicially and in a timeous manner.  He relied upon decisions by Deputy Commissioner Mark in CDLA/4462/2000 and Commissioner Bano in CDLA/4389/2004.

36.	Mr Hatton had made detailed written submissions relating to the procedural rules and developed these at hearing.  He submitted that the tribunal had not applied the relevant rules correctly.  He referred us to the decision of Commissioner Williams in CIB/2533/2008 and the decision of Commissioner Brown in C1/05-06(IB).  He submitted that cases would turn on their own facts as to whether the failure to determine a postponement application or to issue any notice of refusal would make a material difference to the decision.

37.	The Department made further submissions on the fairness of the hearing and in particular accepted that the claimant’s concerns about the EMP report were not addressed by the tribunal and that a letter from his GP was not addressed by the tribunal.  On that basis only, the Department accepted that the tribunal was in error of law.

	Discussion

38.	The Decisions and Appeals Regulations provide for three mechanisms by which appeals listed for hearing may be deferred.  Firstly, once a notice of hearing is issued, a party may apply for postponement.  This will lead to a decision on the application by a clerk or LQM, either of whom may also postpone a hearing on his or her own motion.  Secondly, when a hearing is convened but a party who has been notified does not attend at the appointed time and place, the question of whether the tribunal should proceed in the absence of that party arises.  The decision on whether to proceed in absence is a matter for the LQM alone, considering any explanation offered for the absence.  Thirdly, when a hearing proceeds, any party may make application for an adjournment at any time.  The decision on an adjournment application must be decided by the tribunal as a whole, and the tribunal may also adjourn a hearing of its own motion.

39.	In the present case, the claimant made an application for postponement which was received on 1 June 2010 – a full week before the date of hearing.  No decision was made on the postponement application.  We first consider the consequence of that inaction.

40.	Mr Gough has suggested that the expression “the clerk to the appeal tribunal may grant or refuse the request as he thinks fit or pass the request to a legally qualified panel member who may grant or refuse the request as he thinks fit” means that there was not an obligation on the clerk or the LQM arising from regulation 51(1) to determine the application for postponement.  He submits that the word “may” gives discretion and does not impose any obligation, such as would have been explicit from use of the word “shall”.

41.	We cannot accept that that submission is correct.  We observe that by section 38 of the Interpretation Act (Northern Ireland) 1954, "In an enactment passed or made after the commencement of this Act, the expression 'shall' shall be construed as imperative and the expression 'may' as permissive and empowering."  However, courts have long held that permissive language can be read as not importing discretion but rather imposing including a duty to act, depending on the context. In Julius v Bishop of Oxford (1880) 5 App Cas 214, Earl Cairns LC said, at page 225:

"My Lords, the cases to which I have referred appear to decide nothing more than this: that where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the Legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised, and the court will require to be exercised."

42.	We further observe that by regulation 51(2) where a clerk or a LQM refuses to postpone, the clerk shall notify the party of the refusal and place the request for the postponement and the notification of its refusal before the tribunal.  It appears to us incongruous that a decision to refuse an application would give rise to an imperative procedural requirement, if the same application could simply be ignored by a clerk or LQM at his or her discretion.

43.	From the particular context, we consider that in a case where an appellant has requested a postponement in writing, stating his reasons, the clerk is afforded discretion by the legislation to grant, to refuse or to pass the request for postponement to a LQM.  However, the clerk must take one of those three steps.  Equally, the LQM may grant or refuse the application, but cannot simply ignore it.  We are supported in this view by the decision of Great Britain Deputy Commissioner Mark in CDLA/4462/2000 and Great Britain Commissioner Bano in CDLA/4389/2004.

44.	Nevertheless, we recognise that circumstances will arise in practice which might lead to difficulties in complying with the procedural rules.  Postponement applications may be made on the same day as the hearing or at close of business on the day before, making it difficult for a clerk or LQM to make a decision.  Applications may be overlooked inadvertently.  This may lead to a situation, as here, where an outstanding postponement application comes before a LQM sitting as part of a tribunal.

45.	Postponement by its nature is aimed at pre-empting the commencement of a hearing where a party makes a timely application.  Once a hearing has begun - and this may simply mean that the tribunal panel has convened at the date and place of hearing and is ready to commence the hearing list - it seems to us that dealing with the request as a postponement is no longer appropriate.  Under regulation 51(3) the power of the clerk or LQM to postpone of his or her own motion can only be exercised before the beginning of the hearing.  It would appear entirely consistent that a similar constraint should be implied where it is a party to the proceedings who has made a postponement application. Once a hearing commences, the question of postponement becomes entirely academic.

46.	However, where a postponement application has been made prior to a hearing but has not been determined, we consider that the fact that there has been an application for postponement cannot be ignored.  In CDLA/3680/97, a case under the Social Security (Adjudication) Regulations 1995, Commissioner Rowland, as he then was, held that where there has been an unsuccessful application for a postponement, the question of whether the case should be adjourned must be considered afresh.  In broad terms, in relation to the current provisions in the Decisions and Appeals Regulations, we agree.  We consider that an unsuccessful or undetermined postponement application must be reconsidered under the other relevant provisions.

47.	Irrespective of whether a postponement application has been made previously, where an appellant does not attend an appeal hearing, the LQM must make a decision on whether or not to proceed in the appellant’s absence.  By regulation 49(4) this will require the LQM to have regard to all the circumstances, including any explanation offered for the absence.  Where there has been a postponement application, it would appear to us that the written postponement application should be considered by the LQM as it is a relevant aspect of the circumstances which the LQM is required to consider.  If the LQM decides not to proceed with the hearing, he or she may give directions with a view to the determination of the hearing.

48.	If the appellant does attend the hearing, or if the LQM decides to proceed with the hearing notwithstanding the appellant’s absence, any refused application for postponement and the refusal determination must to be placed before the tribunal under regulation 51(2).  Equally, we consider that where an outstanding postponement application has not been determined, the context requires the outstanding application to be placed before the tribunal for consideration of the question of adjournment.

	The application of the rules in the present case

49.	In the present case, the claimant made a written request for postponement, stating reasons.  This was received by the Appeals Service on 1 June 2011, a full week before the prospective date of hearing.  The claimant’s reason for seeking postponement was that he was attending hospital on a daily basis for eight weeks for radiotherapy treatment for advanced prostate cancer.  The clerk did not grant or refuse the postponement application.  Nor did the clerk pass it to a LQM for determination prior to the date of hearing.  A tribunal convened to hear the appeal on 8 June 2011.
50.	By this stage it was too late to consider a postponement.  The claimant did not attend the hearing.  This meant that two procedures became relevant.  Firstly, there was a need for the LQM to decide whether to proceed in the claimant’s absence.  Secondly, if the LQM so determined, there was a need for the tribunal as a body to consider whether adjournment was necessary.  Inherent in either of these courses was a requirement for the original postponement application to be considered by the LQM and tribunal.

51.	We consider that the record of proceedings reveals a conflation of the issues of postponement, proceeding in absence and adjournment and suggests confusion as to where the responsibility for determining them should lie.  Whilst there were errors in procedure in that regard, what we consider most significant is that no reference is made in the record of proceedings to the claimant’s written application for postponement. It is clear that it was not placed before the tribunal.  The clerk to the tribunal is recorded as stating that “[the claimant] sent a letter to Appeals Service a few days ago to request a further postponement.”  The reason for the application was paraphrased as “[the claimant] has another hospital appointment today”.

52.	It seems to us that there is a qualitative difference between what was stated to the tribunal by the clerk and the actual basis of application.  “Hospital appointment” conveys a number of different scenarios and in particular can cover a situation where an appointment is of a relatively trivial nature and can be rescheduled by a patient.  We are fully satisfied that this was not the position in this case.  Therefore, the manner in which the postponement application was paraphrased had the capacity to mislead.

53.	The use of the word “another” links the application to previous occasions on which the case was adjourned.  However, the simple fact of the hearing being postponed or adjourned on a number of prior occasions is not in itself a factor which can legitimately affect a decision on an adjournment application.  A decision-maker can legitimately assume that each past adjournment or postponement decision was properly made.  On the other hand, the reasons for those past postponements or adjournments are a factor which can and should be taken into account when considering the reason for the present application.  Where the reason for the current application is improperly understood, any resulting decision is likely to be tainted.

54.	The tribunal found that “there is no reason to believe that if we adjourn again today that (the claimant) will attend the next time”.  We consider that, without sight of the written postponement application, and the knowledge of the circumstances which this conveyed, the tribunal was insufficiently informed as to the reasons for the present application to make this judgment on a sound factual basis.

55.	In any case where there has been a prior postponement application, the written grounds of that application should be placed before the LQM and the tribunal.  In some cases where that does not happen, it may make no difference to the fairness of the proceedings. In the present case, it had the potential to do so.

56.	In R(Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982, Brooke LJ lists a number of examples of errors of law commonly occurring.  Among those matters listed by Brooke LJ include “permitting a procedural irregularity capable of making a material difference to the outcome or the fairness of the proceedings”.  In the circumstances of the particular case, we accept that the tribunal, by failing to consider the written postponement application, has permitted a procedural irregularity capable of making a difference to the fairness of the proceedings.  For that reason we hold the decision of the appeal tribunal to be in error of law.

57.	We set aside the decision of the tribunal under Article 15(8)(b) of the Social Security (NI) Order 1998 and refer it to a newly constituted tribunal for determination. 

(signed):  K Mullan
Chief Commissioner

O Stockman
Commissioner

D J May
Deputy Commissioner (NI)

14 February 2013