Commissioner’s files: CIB 2751 2002 and CS 3202 2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1	I allow the appeals. 

2	This decision concerns two appeals by the claimant that were heard by appeal tribunals chaired by the same chairman and which I directed be heard together by the Commissioner.  The claimant and appellant is appealing with my permission against two decisions of the Stockport appeal tribunal. The first was on 11 March 2002 under file reference U 40 125 2001 02641, and the second was on 12 April 2002 under file reference U 40 125 2001 02049.

3	For the reasons below, both decisions of the tribunal are erroneous in law. I set both aside. Both appeals are referred to a new tribunal for a full rehearing in accordance with section 14 (8) and (9) of the Social Security Act 1998. Both appeals are to be referred to a district chairman for interlocutory directions in the light of this decision.

Background to the appeals 

4	The two appeals arose from separate claims by the claimant for separate benefits because of her ill health. The first appeal (“the March appeal”) was about whether the claimant was capable of work judged by what is now the personal capacity assessment. Her general practitioner told the Benefits Agency that the claimant suffered from agoraphobia, ?asthma, and anxiety, but that she was unable to take any medication for her problems as they seemed to make things worse. An examining medical practitioner confirmed the diagnoses of agoraphobia and breathing difficulties and a bad reaction to all medication. The second appeal (“the April appeal”) was about a claim for severe disablement allowance arising form the same problems. 

5	Because of her client’s problems, the claimant’s representative asked for a domiciliary hearing for the claimant of both the March appeal and the April appeal. The request was accompanied by a letter from the general practitioner confirming agoraphobic symptoms. The letter confirmed that the claimant was a new patient and that “she did come to the surgery to make her acquaintance.” Her request was turned down by a district chairman on a ruling that applied only to the March appeal. 

The tribunal decisions 

6	The March appeal was listed for an oral hearing, and the representative attended, but not the claimant. The tribunal told the representative, rather than discussed with her, that it would be considering the request for a domiciliary hearing along with a request from the representative to adjourn for additional evidence. The statement of reasons deals with the results of that consideration as follows:

“About 6 weeks before the hearing there had been a request for a domiciliary hearing but this had been refused. In preview, before starting the hearing, we considered the request again. We noted from the letter dated 21/1/02 from the appellant’s general practitioner ... that she had gone to his surgery to make his acquaintance and had told him at length about her complex history. We reasoned that if the appellant were able to keep an appointment with [the general practitioner] and to talk to him at length she would be able to attend a tribunal hearing and talk to the tribunal. We decided that the interests of justice did not require us to adjourn for a domiciliary hearing.”     

The tribunal did not adjourn, and gave a full reasoned decision. As part of this, it had to deal with the agoraphobia. The tribunal reasoned:

“We also found that the appellant was not suffering from any specific mental disease or disablement. [The examining medical practitioner] noted a diagnosis of agoraphobia but he had been sent out to the appellant’s home to carry out the medical examination for the IB85 report because the appellant had stated in her IB50 self-assessment form that she would be unable to attend a medical examination centre because of the agoraphobia. However, the appellant was able to keep an appointment with [the general practitioner] to make his acquaintance and to tell him all about her medical history. She also goes out, by car, to the post office every week. A person suffering from true agoraphobia would not be able to go out at all and someone suffering from frequent spells of agoraphobia would not be able to keep and appointment with the doctor reliably or to go out regularly to the post office.”

7	The April appeal was heard at the same location by a tribunal chaired by the same chairman a month later. It raised the same issues of a domiciliary hearing. There were two key differences between the two hearings. One was that the tribunal did raise the question of a domiciliary hearing at the beginning of the April appeal hearing. The representative had supported the application for a domiciliary hearing by further evidence of other domiciliary facilities offered to the claimant by public services.  She specifically invoked the European Convention on Human Rights in support of the application. But, due to a mix up which the chairman appears to have forgotten when preparing the statement of reasons, the claimant’s representative did not attend this hearing and the only representative present was the secretary of state's representative. The other is that the tribunal in the April appeal, unlike that in the March appeal, had the power to conduct a medical examination of the claimant. It clearly could not do that if she was not present.  

8	The April tribunal noted the same evidence from the general practitioner as noted in the March appeal, recording: “We did not see why, if she chose, she could not come, by taxi, to the venue and speak to the tribunal.” It added a note about the claimant’s phobia about doctors, commenting: “As she says that she has a phobia of doctors, we did not see how she would welcome a domiciliary visit with two consultants sitting talking to her in her own home, any better than coming to the tribunal for the hearing.” The ruling of the April tribunal was that:

“We refused the request for a domiciliary hearing. As the request had already been made once and refused, there could be no reasonable expectation on the part of the appellant that it would be granted and we did not consider that the interests of justice required us to adjourn to give the appellant a further opportunity to attend. Indeed, [the representative] did not request us to do so.” 

9	The last sentence of that ruling appears to make sense only if the named representative was present at the hearing. As already noted, she was not there. The request “already made once” appears to be the request made before the March appeal applied to the April appeal. The ruling about the domiciliary visit made for the March appeal is in the April appeal papers. The request for a domiciliary visit was repeated in a letter written immediately after, and referring to, the March appeal hearing, but to which there appears to have been no separate reply ahead of the April hearing.  That letter invoked the European Convention on Human Rights Article 6 in support of the application.  I agree with the secretary of state's representative that the tribunal erred in relying on the previous ruling of the chairman in this way, but I do not decide the case on that basis. 

Grounds of appeal   

10	The claimant and her representative put in lengthy statements of grounds of appeal against the March decision challenging the facts, the analysis of her condition, and the procedure used by the tribunal. They included a statement that the claimant did, indeed, suffer from true agoraphobia and could not venture out on her own or at regular times. She also pointed out that the general practitioner’s surgery was manageable only on some days and was much nearer than the tribunal centre. “To compare the two is absolute nonsense and intrinsically unjust.” There was a separate full statement of grounds of appeal against the April decision. In addition, the representative pointed out the error in the statement of reasons about her attending. 
I indicated that I gave permission to appeal by reference only to the issue of unfairness of the nature of the hearings. I drew attention to the request being supported by reference to the European Convention on Human Rights. 

The views of the Secretary of State 

11	The secretary of state's representative supported both appeals in a single submission. He did so by reference to the way the tribunals handled the issue of a domiciliary hearing and alternative ways of seeking further evidence about the claimant.  The appeal against the March decision was supported for the following reason:

	“I submit that, having set itself to determine whether the interests of justice required it to adjourn for a domiciliary hearing to be arranged, it was incumbent on the tribunal to give the question the same thorough consideration as any other application. I submit that before implying that the claimant, in her reported state of health, was able to attend the tribunal but had decided not to do so, the tribunal should have found facts as to whether it was reasonable to compare her attendance at her general practitioner’s surgery, speaking to one person, with attendance at a tribunal hearing. I submit that the tribunal failed to make adequate findings in this respect, and while acknowledging that the efficient running of the hearings system is one of the elements to be considered by a tribunal, I submit that its decision should be set aside. I would also support the Commissioner’s provisional view that the tribunal was wrong in law in failing to discuss the question with the claimant’s representative, which might have assisted the tribunal to find the relevant facts on which to found its decision.”    

12	The appeal against the April decision was supported as follows:

	“... there were considerable obstacles to the tribunal’s refusal of the request for a domiciliary hearing. I submit that the claimant’s article 6(1) right to a hearing, which the tribunal must guarantee is fair, should have underpinned its consideration of the application. I submit that, in deciding, despite the explicit and authoritative evidence of the provision of other services on a domiciliary basis, that the claimant could attend the hearing “if she chose”, the tribunal not only excluded her from the hearing with which it proceeded, but also made assumptions regarding some of the medical issues that were before it. As is noted by the Commissioner, the tribunal also deprived itself of the evidence of the medical examination that it would usually have before it.”     

Natural justice or fundamental rights?

13 	When granting permission to appeal I commented that it was not clear that the Human Rights Act 1998 (incorporating the European Convention into British law) awards any further rights to an appellant than those given by common law. But both parties referred to the European Convention on Human Rights and Fundamental Freedoms and the fundamental rights that the Convention recognises. The secretary of state's representative justified that approach as follows:

“I would suggest that as the Strasbourg case law is both more specific and more accessible to representatives of the Secretary of State, and probably to lay appellants, it is not unreasonable to frame any argument on issues relating to the fairness of hearings within that case law.”

14	The approach of the secretary of state's representative raises the same issue, but from an entirely different perspective, as was recently raised by a Commissioner in CJSA 5100 2001. In that case the Commissioner decided that the claimant in that case had not had a fair hearing under the European Convention on Human Rights from an appeal tribunal. The Commissioner explained:

“5	I chose to explain my decision in terms of the claimant’s Convention right to a fair hearing under article 6(1) of the European Convention on Human Rights  and Fundamental Freedoms. In particular, I rely on the equality of arms principle that has developed in the jurisprudence of the Strasbourg authorities as part of that right. It requires that the procedure followed by the tribunal must strike a fair balance between the parties so that none is at a disadvantage as against the others...

6	I could, no doubt, have reached the same conclusion under domestic principles of natural justice. However, the Human Rights Act 1998 provides a convenient opportunity for Commissioners to rebase their decisions on procedural fairness in fresh terms. In my view, this would be desirable. I am sure that tribunals are familiar the principles of natural justice. However, increasingly the cases that come to me suggest that they are not applying them. If there is a common theme in those cases, it is that the tribunal has not provided a procedural balance between the parties. The introduction of the language of balance would provide a touchstone for tribunals.”     

15	I agree with the sentiments expressed in CJSA 5100 2001. My view is fortified by submissions I regularly see from experienced lay representatives based on the European Convention. It is further fortified in a way that I had not anticipated by the experienced secretary of state's representative in this case.  Unassisted claimants regularly misunderstand what is meant by “natural justice” as do some lay representatives. My own experience suggests that the secretary of state's representative is right about the accessibility to non-lawyers of European principles and case law about a “fair hearing” as against the English and Welsh (and, separately, Scottish) case law about “natural justice”.  Commissioners and tribunals have a jurisdiction where individuals are rarely represented by lawyers and where public authorities often do not call on help from lawyers. So the views of lay representatives are important. Further, the claimant is entitled to any rights she has under Article 6 of he European Convention on Human Rights  by way of the Human Rights Act 1998,  not case law. I therefore refer in this case to the rights I consider to be derived under Article 6 of the Convention.   
  
The right to a fair hearing

16	The Secretary of State, who is responsible for the organisation of appeal tribunals, conceded that the European Convention on Human Rights is the starting point for considering these appeals. Article 6(1) provides as relevant: “everyone is entitled to a fair and public hearing...” The European Court of Human Rights has indicated that the effect of Article 6(1) :
“is, inter alia, to place the “tribunal” under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties, without prejudice to its assessment of whether they are relevant to its decision” (Kraska v Switzerland, (1994) 18 EHRR 188, paragraph 30). 

17	The general issue of “fair and public” oral hearings does not arise directly in most tribunal cases. There is a standard procedure for a party to ask for an oral hearing. If a party asks, then “the appeal tribunal shall hold an oral hearing” (Social Security and Child Support (Decisions and Appeals) Regulations 1999,  regulation 39(4). Further, the general rule is that the oral hearing is in public: regulation 49(6) (recently amended to strengthen the duty to hear cases in public). The specific question that arises here is whether the tribunal can hold a fair oral hearing without a party present where that absence is due to specific problems suffered by the claimant in a case where those specific problems are directly relevant to the issue that the tribunal is deciding in that case.  

18	The starting points in considering a fair hearing must be (a) Article 6 of the Convention and (b) the relevant procedural rules of the tribunal. The Social Security and Child Support (Decisions and Appeals) Regulations 1999 are silent as to domiciliary visits, or more generally about the location of a tribunal hearing. Nonetheless, it has long been recognised that some hearings must be held as “domiciliary hearings”, and the publicity about appeal tribunals raises the point. The question whether an individual claimant should have a domiciliary visit when one is requested is therefore left to the judicial discretion of the tribunal.

Was the refusal of a domiciliary hearing in March fair?

19	It makes obvious sense that, as in the March appeal, the matter is first considered by a chairman at an interlocutory stage. But what of the arguable case for a domiciliary hearing where the application is rejected? If the issue has been raised, as here, with appropriate supporting evidence and as part of the appeal, but is not allowed at the interlocutory stage, then it remains for the tribunal to determine it as part of the appeal. This was recognised by the March tribunal. But that is not the end of the matter. I agree with the secretary of state's representative that the decision requires the same proper consideration as any other decision of the tribunal as part of its judicial function. 

20	This means that the issue must be raised with and discussed with any representative present. The tribunal must also take its decision bearing in mind that, following Kraska, it is for the parties to decide what is, or is not, relevant evidence for a tribunal to hear, and that the tribunal should not prejudge that issue. The March tribunal did not discuss the issue with the representative, although it could have done so. Nor did it give the representative a chance to challenge the assumptions of fact (it made no express findings) on which the tribunal made its ruling about the domiciliary visit. Nor did it take any other step to obtain further evidence about the claimant’s problems before reaching its assumptions about her. In doing so, it unavoidably prejudged the issue of whether the claimant did or did not have “true agoraphobia”. It assumed her failure to attend was wilful rather than as a result of her condition at the time of the hearing, although whether that was in fact so was of course central to the claimant’s substantive appeal. That was a failure to give the issue a fair hearing. The decision of the March tribunal must be set aside. 

21	I emphasise that this is not a decision by me that the claimant was entitled to a domiciliary hearing in March, nor do I take the secretary of state's representative as arguing for that conclusion. I do not consider that Article 6 can be read as requiring a domiciliary hearing in all cases where a claimant asks for one for a relevant reason. The test must be that of fairness between the parties and in the public interest, with the principle in Kraska and the principle of equality of arms in mind. It is a matter of judgment, and there may be other substantive and procedural ways in which the tribunal can ensure a fair hearing without a domiciliary hearing in a particular case. 

Was the refusal of a domiciliary hearing in April fair?

22	The April tribunal faced a different decision. A decision to refuse a domiciliary hearing  may prejudge the appeal by limiting the evidence that the claimant can advance at the hearing. Additionally, at the April hearing the tribunal would have conducted a medical examination of the claimant as a standard part of the hearing if the appellant had attended. That is an important additional element about the conduct of the hearing that was not relevant at the March appeal. Had the tribunal hearing taken place, there would have been a medical examination of the claimant by the tribunal member(s) that would have enabled them to investigate and take an expert view on the precise issue that led to the claimant’s non-attendance, including whether she had “real” agoraphobia. Further, the interlocutory ruling to which the April hearing was referred was related to the March appeal, and there is no evidence that the chairman making the ruling considered the issue of a medical examination. The tribunal in April did not take these points into account.  It also failed to deal expressly with the points raised in the letter after the March decision, and in particular the reference to the European Convention on Human Rights.   To use the language of the April tribunal, the claimant had a legitimate expectation of an oral hearing and a fair hearing, including a medical examination by the tribunal itself. 

23	The April appeal is one of a narrow band of cases coming to appeal tribunals where (a) the claimant makes an application for a domiciliary hearing supported by medical and other supporting evidence, (b) the medical and other supporting evidence puts the claimant’s disabilities directly in issue both as to the decision under appeal and as to the attendance at the tribunal, and (c) an oral hearing would normally include a medical examination of the claimant.  In those cases, the decision about a domiciliary hearing may confront the tribunal with a dilemma. If it refuses the domiciliary hearing, it may thereby prevent itself from both receiving and evaluating the claimant’s full evidence about the dispute that forms the substance of the appeal. In that narrow band of cases, a tribunal must think carefully about its procedure, including whether there are other ways of redressing both the failure to receive the claimant’s oral evidence and the failure to examine the claimant. For example, it might obtain a new consultant’s report or report from a general practitioner or other independent evidence, or (in future cases) it might consider using a video link. Alternatively it might invoke its powers to determine a matter of special difficulty. If so, section 7(4) of the Social Security Act 1998 allows the tribunal to require another medical member to provide assistance to the tribunal in dealing with the question. That medical member could visit the claimant and then advise the tribunal, so avoiding the full tribunal having to attend the claimant’s home.

24	The April tribunal refused a domiciliary visit. It refused to adjourn to allow the claimant to get extra evidence, whether on the claimant’s requested terms or otherwise. And it did not consider getting extra evidence itself or using any other powers to address the evidential problem it confronted. I agree with the secretary of state's representative that in so doing the tribunal erred in law. It excluded directly relevant evidence on the issue of the agoraphobia but failed to provide for any alternative method of redressing the loss of evidence. As a result, it approached the question it was asked to decide in a way that raises doubts as to the fairness of its answer. Further, it did it by reference in part to the ruling made ahead of the March appeal but without dealing with the specific points made for the claimant as to the April appeal.  I must set aside that decision also.

25	That, again, is not a direction that the April tribunal had no option but to hold a domiciliary hearing.  It is again a matter of judicial discretion, though one that must have in mind the additional element of the medical examination. The secretary of state's representative comments that there may be ”considerable obstacles” in the way of a tribunal dealing with the issue fairly without a domiciliary hearing. I agree but, as I have indicated, that is not the only solution. 

What is a domiciliary hearing?

26	It has been assumed that “domiciliary hearing” means a hearing at the home of the claimant. The April tribunal drew attention to this as part of its thinking. Is that assumption correct? Two other points may be relevant when considering the interaction of Article 6 of the European Convention on Human Rights with domiciliary hearings. First, can a domiciliary hearing properly be a “public hearing”? How does the requirement in Article 6(1) , read with the requirements of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, now apply? Second, do issues under Article 8 of the Convention (right to respect for private and family life) also arise? Does the tribunal have the right to assume that it can attend the claimant’s home if there are reasons to bring the hearing to the claimant rather than the reverse, and that it can hold a public hearing there? The new form of regulation 49(6) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 includes a clear reference to Article 8 of the Convention, so may provide a solution. But should the hearing be near, rather than at, the claimant’s home as is, I understand, the practice in Northern Ireland so allowing a different solution?    

								David Williams
								Commissioner

								10 December 2002
[Signed on the original on the date shown]