SD-v-Department for Social Development (ESA) [2015] NICom 32
Decision No:  C21/14-15(ESA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

EMPLOYMENT AND SUPPORT ALLOWANCE

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 24 January 2014

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 24 January 2014 is in error of law.  The error of law identified will be explained in more detail below.  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.

2.	The legally qualified panel member (LQPM) should note that this appeal was supported by the Department.  The reasons for that support are set out below.  The Department has acknowledged that the support is based on evidence which has been adduced since the date of the appeal tribunal hearing and which was, accordingly, not before the appeal tribunal.

3.	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.  This is because there is detailed evidence relevant to the issues arising in the appeal, including medical evidence, to which I have not had access.  An appeal tribunal which has a medically qualified panel member is best placed to assess medical evidence and address medical issues arising in an appeal.  Further, there may be further findings of fact which require to be made and 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.  In referring the case to a differently constituted appeal tribunal for re-determination, I direct that the appeal tribunal takes into account the guidance set out below.

4.	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 employment and support allowance (ESA) 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

5.	The decision under appeal to the appeal tribunal was a decision of the decision-maker of the Department, dated 1 September 2012, which decided that:

(i)	grounds existed to supersede an earlier decision of the Department, dated 22 May 2012, and which had awarded an entitlement to ESA, from and including 17 May 2012; and

(ii)	the appellant did not have limited capability for work and was, therefore, not entitled to ESA from and including 1 September 2012.

6.	The appeal was received in the Department on 10 September 2012.  On 6 March 2013 the decision dated 1 September 2012 was looked at again but was not changed.

7.	Following an earlier adjournment, the substantive appeal tribunal hearing took place on 24 January 2014.  The appellant was not present.  There was no Departmental Presenting Officer present.  The appeal tribunal disallowed the appeal and confirmed the decision dated 1 September 2012.

8.	On 12 February 2014 an application to have the decision of the appeal tribunal dated 24 January 2014 set aside was received in the Appeals Service (TAS).  The application was made on behalf of the appellant by his representative.  On 18 March 2014 the application to have the decision of the appeal tribunal set aside was refused by the LQPM.

9.	On 29 July 2014 further e-mail correspondence was received in TAS from the appellant’s representative.  On 30 July 2014 the further e-mail correspondence of 29 July 2014 was put before the LQPM by the clerk to TAS with a request for a direction.  On 31 July 2014 the LQPM directed that the e-mail correspondence of 29 July 2014 should be treated as an application for leave to appeal to the Social Security Commissioner.  On 10 September 2014 the application for leave to appeal was refused by the LQPM.

	Proceedings before the Social Security Commissioner

10.	On 15 October 2014 a further application for leave to appeal was received in the Office of the Social Security Commissioners (OSSC).  On 10 November 2014 observations on the application for leave to appeal were sought from Decision Making Services (DMS) and these were received on 5 December 2014.  In these observations, Mr Donnan, for DMS supported the application on the grounds submitted on behalf of the appellant.  The written observations were shared with the appellant and his representative on 5 December 2014.  E-mail correspondence in reply was received from the appellant’s solicitor on 8 December 2014.

11.	On 15 January 2015 I granted leave to appeal.  When granting leave to appeal I gave, as a reason, that an arguable issue arose as to whether the appellant received notification of forms relevant to nomination of election for an oral hearing of the appeal.  On the same date I also decided that having considered the papers I was satisfied that the appeal could properly be determined without a hearing.  The parties to the proceedings were notified of that latter decision on 15 January.  On 12 February 2015 correspondence was received from the appellant’s representative in which it was indicated that the appellant strongly objected to the decision that an oral hearing was not required.  Further correspondence was issued to the appellant’s representative on 17 February 2015.  On 23 February 2015 e-mail correspondence was received from the appellant’s representative in which it was indicated that:

‘In respect of the decision of the Commissioner to deal with the matter without a hearing, we advise that our client’s instructions remain that he wishes a hearing to determine the substantial factual issues of his entitlement to ESA, whether this is done by the Commissioner or heard by a lower-tier Tribunal after being remitted there by the Commissioner.’

	Errors of law

12.	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.  What is an error of law?

13.	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.”

	Analysis

14.	In his written observations on the application for leave to appeal, Mr Donnan has submitted:

‘It is clear from the evidence now provided by (the claimant’s) solicitor, that there are problems with him safely receiving his post.  He has submitted copies of eight letters recently returned by Royal Mail to the Elliott-Trainor Partnership.  The evidence before the Commissioner also shows (the claimant) lives in a block of flats and does not have his own private letter box.  Clearly, there would be an increased likelihood of him not always receiving his post securely.

However I should highlight that this evidence was not before the tribunal dealing with (the claimant’s) present appeal.  I acknowledge that the Appeals Service in the past had been alerted to (the claimant’s) postal difficulties.  The papers confirm that a letter was faxed to the Appeals Service on 21 January 2013 highlighting this problem.  However this was in relation to an earlier, unrelated, appeal against a DLA decision and it is my understanding that the Appeals Service does not carry forward records from one appeal to another.

Mr Murphy highlights that, in its decision, the present tribunal noted (the claimant’s) correct address had been confirmed by the Department “following a query made by a previous tribunal”.  However, it appears this reference is actually to the previously convened hearing which adjourned on 04 September 2013 to check (the claimant’s) address with the Department; and is not therefore a reference to the previous DLA tribunal.

For this reason I would submit the present tribunal was unaware of (the claimant’s) particular postal difficulties.  The LQM would not have had sight of any previous tribunal papers relating to other appeals.

However, I would refer to a GB Commissioner decision CIB/5227/1999, (which I have enclosed) where the appellant similarly submitted that he did not receive the letter Reg 2(i)d.  The Commissioner held (at paragraph 5):

5.	The first question that arises on this application is whether or not the claimant did actually receive the clerk’s direction.  If he did, his own failure to reply is the reason there was no oral hearing of his appeal.  (I accept Ms Anderson’s submission that there was no statutory duty to communicate separately with a representative, although I was pleased to learn from Ms Agwuna that that is now a practice.)  If on the other hand he did not receive the clerk’s direction, he was deprived of the opportunity of an oral hearing through no fault of his own.

The Commissioner was satisfied in that case the appellant had not received the form Reg 2(i)d and later concluded at paragraph 10:

...In this case, it is clear that, if, as I have found, the claimant did not receive the clerk’s direction, there was a fundamental unfairness about the proceedings before the tribunal.  I am quite satisfied that that unfairness renders the decision of the tribunal erroneous in point of law.

I would respectfully submit the same issue arises in the present case for (the claimant).  If the Commissioner is satisfied that he did not receive the form Reg 2(i)d, then I feel CIB/5227/1999 would be relevant and it could be determined that there was an unfairness about the proceedings before the tribunal which would render its decision erroneous in law.

I would emphasise that such procedural unfairness can only be identified in hindsight as I feel the tribunal would not have known at the time of proceeding of (the claimant’s) difficulties regarding his post.  However, I also submit that another GB Commissioner decision is relevant to this aspect.

This is CIB/303/1999 (which I have also enclosed) and in that case, the Commissioner was considering the issue of whether the appellant had received notification of an oral hearing.  I would refer to paragraphs 3 and 10 (with my emphasis in bold):

3.	...I accept that non-receipt of a notice of hearing does not invalidate proceedings before a tribunal in the sense of rendering the decision of the tribunal a nullity.  However, I regret that I do not agree with the Commissioner’s conclusion [in R(SB) 55/83] that non-receipt of a notice cannot give rise to a breach of the rules of natural justice in circumstances where a party is thereby deprived of the opportunity of attending a hearing and making submissions or giving evidence at the hearing.

10.	As I have already indicated, I do not accept that there is no breach of the rules of natural justice in a case where a person does not receive actual notice of a hearing.  The consequence of the claimant in the present case not receiving notice of the hearing before the tribunal was that he was unable to put his case as he had expected and so the tribunal did not consider what he had to say.  The fact that the tribunal were unaware that the claimant had not received the notice is immaterial because the question is not whether they knowingly erred but whether their decision was reached in circumstances contrary to the rules of natural justice.  As the claimant’s case was not heard, through no fault of his own, there was, in my view, a clear, albeit inadvertent, breach of the rules of natural justice.

Whilst the circumstances from that case are slightly different, I respectfully submit the principle is the same.  Namely that whether the tribunal was unaware of (the claimant’s) postal difficulties (regarding form Reg2(i)d) at the time of the hearing is immaterial.  The question is not whether the tribunal knowingly erred but whether its decision was reached in circumstances contrary to the rules of natural justice.’

15.	I accept the submission made by Mr Donnan and, for the reasons which have been set out by him, also accept that there has been a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings.  In such circumstances the decision of the appeal tribunal must be set aside.

Disposal

16.	The decision of the appeal tribunal dated 24 January 2014 is in error of law.  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.

17.	I direct that the parties to the proceedings and the newly constituted appeal tribunal take into account the following:

(i)	the decision under appeal is a decision of the Department, 1 September 2012, which decided that grounds existed to supersede an earlier decision of the Department, dated 22 May 2012, and which had awarded an entitlement to ESA, from and including 10 May 2012 and that the appellant did not have limited capability for work and was, therefore, not entitled to ESA from and including 1 September 2012;

(ii)	it is essential that the appellant notifies TAS of his correct postal address for the service of documents relating to his appeal.  The appellant’s representative should inform TAS whether he will continue to represent the appellant in the further oral hearing before the differently constituted appeal tribunal.  If the representative does continue to represent the appellant then TAS should ensure that all documents and notices relevant to the appeal are served on the representative;

(iii)	the Department is directed to provide details of any subsequent claims to employment and support allowance (ESA) and the outcome of any such claims to the appeal tribunal to which the appeal is being referred.  The appeal tribunal is directed to take any evidence of subsequent claims to ESA into account in line with the principles set out in C20/04-05(DLA);

(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; and

(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

Chief Commissioner

5 August 2015