MO’H-v-Department for Communities (ESA) [2017] NICom 42

Decision No:  C19/17-18(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 11 February 2016

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 11 February 2016 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.	I would ask the Legally Qualified Panel Member (LQPM) to note that the appeal has been allowed as I am satisfied that, following the decision of a Tribunal of Commissioners in RGS v Department for Social Development (ESA)([2016] NICom 39), there has been a procedural irregularity which was capable of making a material difference to the outcome or the fairness of the proceedings.  I have not addressed the manner in which the appeal tribunal addressed the substantive issues arising in the appeal.

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. 

4.	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.

5.	It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of her ongoing 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

6.	On 1 September 2015 a decision maker of the Department superseded an earlier decision of the Department and decided that the appellant was not entitled to ESA from and including 1 September 2015.  An appeal against the decision dated 1 September 2015 was received in the Department on 5 October 2015.  On 9 December 2015 the decision dated 1 September 2015 was reconsidered but was not changed.  

7.	On 7 January 2016 the appeal tribunal clerk made a submission to the LQPM indicating that the appellant had not returned a ‘hearing type enquiry form’ and had not consented to the release of her General Practitioner (GP) records.  The LQPM was asked to determine whether the appeal should proceed as a ‘paper’ hearing.  On 13 January 2016 the LQPM determined that the appeal should proceed by way of a ‘paper’ hearing. 

8.	The hearing took place on 11 February 2016 and proceeded as an appeal to be determined on the ‘papers’ alone.  The appeal tribunal disallowed the appeal and confirmed the decision dated 1 September 2015.

9.	On 26 May 2016 an application for leave to appeal to the Social Security Commissioners was received in the Appeals Service (TAS).  On 13 September 2016 the application for leave to appeal was refused by the Legally Qualified Panel Member (LQPM). 

	Proceedings before the Social Security Commissioner

10.	On 14 October 2016 a further application for leave to appeal was received in the office of the Social Security Commissioners.  On 31 October 2016 observations on the application for leave to appeal were requested from Decision Making Services (DMS).  In written observations dated 17 November 2016, Mr Kirk, for DMS, opposed the application for leave to appeal on one the grounds submitted on behalf of the appellant but supported the application on other identified grounds.  Written observations were shared with the appellant on 18 November 2016. 

11.	On 12 April 2017 I granted leave to appeal. In granting leave to appeal, I gave, as a reason that it was arguable that the decision of the appeal tribunal to proceed in the absence of the appellant was not in keeping with the principles in RGS v Department for Social Development (ESA)([2016] NICom 39), C12/14-15 (ESA)(T)).  On the same date I determined that an oral hearing of the appeal would not be required.

	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.	As was noted above, on 7 January 2016 the appeal tribunal clerk made a submission to the LQPM indicating that the appellant had not returned a ‘hearing type enquiry form’ and had not consented to the release of her General Practitioner (GP) records.  The LQPM was asked to determine whether the appeal should proceed as a ‘paper’ hearing.  On 13 January 2016 the LQPM determined that the appeal should proceed by way of a ‘paper’ hearing.  The hearing took place on 11 February 2016 and proceeded as an appeal to be determined on the ‘papers’ alone.

15.	The consequences of a failure, or in reality, an omission by an appellant in not returning a ‘hearing type enquiry form’ were addressed by a Tribunal of Commissioners in RGS v Department for Social Development ([2016] NICom 39) (‘RGS’).  The Tribunal of Commissioners began by setting out the relevant legislative provisions in paragraph 17, as follows:

	‘The procedure giving the choice to an appellant whether to have an oral hearing of his appeal is derived from the Social Security and Child Support (Decisions and Appeals) Regulations (NI) 1999 (“the Decisions and Appeals Regulations”). Of particular relevance are regulation 39 and regulation 46. These read:

	39. — Choice of hearing 

	(1) Where an appeal or a referral is made to an appeal tribunal the appellant and any other party to the proceedings shall notify the clerk to the appeal tribunal, on a form approved by the Department, whether he wishes to have an oral hearing of the appeal or whether he is content for the appeal or referral to proceed without an oral hearing.

	(2) Except in the case of a referral, the form shall include a statement informing the appellant that, if he does not notify the clerk to the appeal tribunal as required by paragraph (1) within the period specified in paragraph (3), the appeal may be struck out in accordance with regulation 46(1).

	(3) Notification in accordance with paragraph (1)–

			(a) if given by the appellant or a party to the proceedings other than the Department, must be sent or given to the clerk to the appeal tribunal within 14 days of the date on which the  form is issued to him; or

			(b) if given by the Department, must be sent or given to the clerk to the appeal tribunal–

				(i) in the case of an appeal, within 14 days of the date on which the form is issued to the appellant, or

				(ii) in the case of a referral, on the date of referral,

		or within such longer period as the clerk may direct.

(4) Where an oral hearing is requested in accordance with paragraphs (1) and (3) the appeal tribunal shall hold an oral hearing unless the appeal is struck out under regulation 46(1).

(5) The chairman or, in the case of an appeal tribunal which has only one member, that member, may of his own motion direct that an oral hearing of the appeal or referral be held if he is satisfied that such a hearing is necessary to enable the appeal tribunal to reach a decision.

	Regulation 46 provides as follows.

46. — Appeals which may be struck out

(1) Subject to paragraphs (2) and (3), an appeal may be struck out by the clerk to the appeal tribunal–
	…

		(d) for failure of the appellant to notify the clerk to the appeal tribunal, in accordance with regulation 39, whether or not he wishes to have an oral hearing of his appeal.

(2) Where the clerk to the appeal tribunal determines to strike out the appeal, he shall notify the appellant that the appeal has been struck out and of the procedure for reinstatement of the appeal as specified in regulation 47.

(3) The clerk to the appeal tribunal may refer any matter for determination under this regulation to a legally qualified panel member for decision by that panel member rather than the clerk to the appeal tribunal.

16.	The ‘hearing type enquiry form’ is known in TAS as ‘Form Reg2(i)d’. It was described in paragraph 28 of RGS, as follows:

‘The Reg2(i)d is a form approved by the Department for the purposes of regulation 39(1) of the Decisions and Appeals Regulations.  The form provides the mechanism for an appellant to notify the clerk to the tribunal whether he wishes to have an oral hearing of an appeal or whether he is content for the appeal to proceed without an oral hearing.  By regulation 39(2) and 39(3), the form must warn an appellant that if he does not notify the clerk of his wishes within 14 days, the appeal may be struck out in accordance with regulation 46(1).  The Reg2(i)d form contains such a warning.’

17.	In paragraph 29, the Tribunal of Commissioners in RGS posed the following question:

‘The question which arises in the present appeal is what should happen when the appellant does not return the completed Reg2(i)d form within 14 days, as required by regulation 39(2) and (3).  On the face of it, the appeal may be struck out.  However, where the appeal is not struck out, yet the appellant has not indicated whether or not he wishes to have an oral hearing of the appeal, how should the appeal proceed?’

18.	After undertaking an analysis of the relevant principles, the Tribunal provided the answer in paragraphs 42 to 48 as follows:

	‘42.	When the Reg2(i)d form is not returned by an appellant, the procedural rules provide for the possibility of striking out the appeal, subject to a right to apply for re-instatement.  However, TAS did not strike out the appeal.  Rather, it convened a hearing in the appellant’s absence and determined the appeal without further notice to him.  

	43.	In a system which does not routinely hold oral hearings, it can reasonably be required of an appellant that he should apply for an oral hearing.  This was the case in Schuler-Zgraggen, where the appellant did not make such an application, and where the ECtHR found that she had tacitly waived the right to a hearing.  However, the system that we are concerned with is more generally directed toward the holding of hearings as of right. It is reasonable that an appellant should be given the choice of waiving the right to an oral hearing.  However, because he did not return the Reg2(i)d form, the appellant in the present case did not exercise choice.  It is clear that the appellant had not unequivocally waived his right to an oral hearing in these circumstances.  There was no follow up correspondence when the appellant failed to return the Reg2(i)d form, which might have alerted the appellant to the course of events which was unfolding.  Whereas his case was listed as a “paper” hearing, he was not notified of that fact and was not aware of the progress of his appeal until a decision notice was received. 

	44.	The Decisions and Appeal Regulations provide in such cases for striking out an appeal, notifying the appellant of that fact and, thereby, giving him a chance to apply for re-instatement under regulation 39(5).  Nevertheless, the Decisions and Appeals Regulations are silent on what should happen if the power to strike out an appeal is not exercised.  The practice adopted by TAS in the present case was to proceed to a paper hearing in the appellant’s absence without notifying him of time and place of hearing.  However, there is no procedural basis for holding such a hearing in these circumstances under the Decisions and Appeals Regulations.  In the absence of procedural rules governing the circumstances, it would have been equally valid to have listed the appeal as an oral hearing with notification to the appellant. 

	45.	Whereas the Decisions and Appeals Regulations are silent on which of these options should have been followed, we consider that the jurisprudence of the ECtHR points to a conclusion.  On the basis of Miller v Sweden, we conclude that the appellant had a right to an oral hearing in the context of the system of ESA appeals.  On the basis of Schuler-Zgraggen v. Switzerland we consider that the appellant could have waived his right to an oral hearing by an unequivocal statement to that effect. In all the circumstances of the case, the fact that the appellant did not return the Reg2(i)d to TAS meant that he had not unequivocally waived his right to a hearing.  We conclude that the determination of his appeal without an oral hearing, in the absence of an unequivocal waiver of his right to an oral hearing, violated the appellant’s right to a fair hearing under Article 6(1) of the ECHR. 

	46.	Looking at the matter in terms of the requirements of natural justice, or procedural fairness, we note that a similar situation to the present case arose, prior to the commencement of the Human Rights Act 1998, in the case of CIB/5227/1999 before a Great Britain Social Security Commissioner.  That case was concerned with the Social Security (Adjudication) Regulations 1995 and the requirement to indicate a choice for an oral hearing, against a similar background of the appropriate form not being delivered to the claimant. Commissioner Rowland said at paragraph 7:

“The claimant in the present case was entitled to an opportunity to require there to be an oral hearing at which he could put forward his contentions.  He did not have that opportunity and the consequence was that the tribunal was unable to listen to those contentions. Regulation 1(3) of the 1995 Regulations provided that where "any notice or other document is required to be given or sent to him in person, that notice or document shall, if sent by post to that person's last known or notified address, be treated as having been given or sent on the day it was posted".  That may have the effect that the claimant is deemed to have received the clerk's direction but such deemed receipt is not the same as actual receipt.  The claimant is unable to reply to a document that he is merely deemed to have received.  The effect of regulation 1(3) is that neither the tribunal nor the regional chairman can be criticised for the approaches they took on the evidence before them. However, had the tribunal been made aware that the claimant had not actually received the clerk's direction, it would have been wholly wrong for him to proceed with the appeal at a paper hearing”.

	47.	This approach was endorsed recently by the Chief Commissioner in SD-v-Department for Social Development (ESA) [2015] NI Com 32. 

48.	In applying the principles to the present case, we agree with Commissioner Rowland’s statement of the law in CIB/5227/1999.  Regardless of the position under Article 6(1) of the ECHR, we consider that the appellant had a right to an oral hearing as a matter of natural justice in the absence of receiving the Reg2(i)d.  We are therefore further confirmed in our view that the decision of the tribunal in the present case was given in circumstances which were procedurally unfair.’
  
19.	Applying the principles in RGS to the instant case, I am satisfied that that the decision of the tribunal in the present case was given in circumstances which were procedurally unfair.  For these reasons, I find that the decision of the appeal tribunal was in error of law.

	Disposal

20.	The decision of the appeal tribunal dated 11 February 2016 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. 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, dated 1 September 2015, which superseded an earlier decision of the Department and which decided that the appellant was not entitled to ESA from and including 1 September 2015;

(ii)	the Department is directed to provide details of any subsequent claims to 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);

(iii)	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

(iv)	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

22 August 2017