PLH                                                                            Commissioner's File:  CIB 4673/01

SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for:  		Incapacity Benefit
Appeal Tribunal: 	Chester
Tribunal Case Ref:  	U/06/065/2001/00478
Tribunal date:		23 July 2001
Reasons issued:		17 September 2001

1.	The decision of the Chester tribunal sitting on 23 July 2001 is conceded by the Secretary of State to have been erroneous in law, and for the reasons given below I accept that concession, set aside the tribunal decision and in accordance with section 14(8)(b) Social Security Act 1998 remit the case for rehearing and redetermination by a differently constituted tribunal. A complete rehearing before another tribunal is necessary because the material placed by the Secretary of State before the previous tribunal was, it now appears, incomplete.  The tribunal is the appropriate body to deal with the medical and factual issues that have in consequence to be gone into once again, and as the course I am taking will give the claimant the opportunity he is seeking to make out his case on those issues at the rehearing I decline his application for a separate oral hearing of this present appeal before me which is not needed in those circumstances.
2.	The reason the tribunal decision has to be set aside and the job started again afresh is that – as made clear for the first time only in the Secretary of State’s written submission on this appeal dated 24 September 2002 at pages 111-112 – there was a breach of natural justice in the procedure before the tribunal, albeit not one in any way the fault of the tribunal themselves.  This was that although the Secretary of State’s written submission to them had referred in passing to the claimant having had previous medical assessments, nowhere did he make it clear that (as now stated) these were assessments for the specific purposes of the “all work test” and had moreover resulted in the claimant satisfying that test and being found incapable of work.  As the Secretary of State’s representative now correctly points out, that did result in a failure, albeit an accidental and blameless one so far as the tribunal were concerned, to consider the case properly since the medical evidence relating to those earlier tests ought to have been obtained and the question of whether anything had really changed addressed: cf. what was said by the Commissioner in case CDLA 187/01, which I agree is equally applicable to earlier assessments of incapacity.  As so often, this is a case where the much greater expense of a complete rehearing could easily have been avoided by the Secretary of State sending a properly instructed and competent representative to appear before the tribunal and give them the assistance they were entitled to expect, in particular by drawing to their attention the true position about the claimant’s earlier tests and awards (which certainly did not appear with anything like sufficient clarity in the original written submission).   
3.	The presence of a representative for the Secretary of State to argue the case properly should also have gone some way to avoid the strongly held impression of this claimant that the tribunal were hostile and unreceptive to the submissions he was trying to make, since without an opposing party to do the perfectly legitimate task of questioning and probing his case they were forced into a more “confrontational” role themselves.  Whether as a result they failed to afford him a fair hearing at all, as he strenuously alleges, is not necessary for me to decide; I record simply that I do not consider the material before me on this issue does demonstrate any real breach of natural justice such as to warrant setting aside the decision for that reason, and some at least of what the claimant says is obviously exaggerated.  For example he claims several times that he was “not allowed to say anything for myself” at the hearing, when it is quite clear from the chairman’s contemporaneous note and the claimant’s own comments elsewhere that he did give evidence, and put forward detailed contentions in the course of a 35 minute hearing; and the tribunal obviously paid attention to these and referred to them in the statement of reasons for their decision.
4.	Accordingly for the reasons given in paragraph 2 above but not the further ones put forward by the claimant, this appeal is allowed and the case remitted for rehearing.

(Signed)
P L Howell
Commissioner
21 November 2002