[2006] UKSSCSC CIS_3811_2005 (09 May 2006)
CIS/3811/2005

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	  This supported appeal with the leave of a commissioner is allowed.  I set aside the decision of the Ashford Appeal Tribunal given on 12 July 2005 and remit the case for rehearing before a new tribunal.  The claimant’s application for the expenses of her two witnesses to attend and give oral evidence should be met by issuing witness summonses and tendering the necessary expenses referred to in regulation 43(1) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 in accordance with the directions set out below.

2.	  The claimant’s request for an oral hearing of this appeal is refused as it is unnecessary, since I am able to decide her appeal in her favour on the facts before me.  She will have an oral rehearing of her appeal before the new tribunal, when she will be able to go through the evidence and draw the tribunal’s attention to all relevant matters.  I indicate in this decision that witness summonses should be issued in respect of the two witnesses whose expenses she sought to have paid to enable them to attend before the last tribunal.  If there are any other witnesses whom she would like to ask questions, she will need to apply for witness summonses to be issued for them to attend, explaining in outline why she wants to question them.  She should make that application as soon as possible even before a new hearing date is fixed to avoid the risk of further delay.

3.	  By letter dated 14 June 2005 the claimant wrote to the tribunal that she wished to call two named witnesses to give evidence at the hearing of her appeal.  One lived in Manchester and the other in Lancaster.  It appears from the letter that a date or dates for the hearing had been notified to her, and it would seem from the Appeal Information Sheet on the tribunal file that a hearing date had been done by letter sent to her on 1 June 2005.  

4.	  The claimant asked in her letter of 14 June 2005 what help and assistance could be provided to help with travelling expenses and overnight accommodation.  The letter was received on 15 June 2005.  By letter dated 1 July 2005, the District Team Leader at the Appeals Service wrote that she knew that her colleague had told the claimant that the Appeals Service would need further information regarding who the witnesses were, their relevance to the case and why the claimant felt that they needed to be at the hearing.  This letter seems to have crossed with a letter from the claimant dated 29 June 2005, sent by recorded delivery and received on 1 July 2005, responding to a telephone request for this information on 27 June.

5.	  As pointed out in the directions given by the commissioner when he gave leave to appeal, there is no further reference on the tribunal file as to how the matter of expenses for travel and overnight accommodation was dealt with by the Appeal Service.  However, the claimant has stated that she was only notified that the expenses requested would be met at 2.30pm on 11 July 2005, the day before the hearing.  By that time, she states, it was too late to arrange for the attendance of those witnesses.

6.	  At the start of the hearing, the claimant’s husband, who spoke on her behalf, explained that they had wanted the two witnesses to give evidence.  They were stated to be willing to come but not at short notice.  The claimant’s husband stated that they had no notice that they could come.  The tribunal proceeded with the hearing.  In the statement of reasons, it is said that they were not produced to give oral evidence though the claimant’s husband stated that they were willing to do so, and they could not therefore be tested on specifics.  As legal advice had clearly been taken on the subject of the hearing it was considered that arrangements to produce them could have been made if required.  

7.	  It is also plain that the evidence that the written evidence of at least one of the witnesses was material and could have been important.

8.	  The representations of the secretary of state on this appeal state that the representative has been informed by the Appeals Service that the procedures set out that any request for a witness to attend the hearing should be referred to the chairman to decide.  On granting the request a witness summons is issued.  Finance guidance to clerks state that expenses can be paid to witnesses as for the appellant.  This would include accommodation and travel expenses where these are appropriate and reasonable.

9.	  This, as the representative of the secretary of state points out, appears to refer to regulation 43(1) of the Social Security (Decisions and Appeals) Regulations 1999, which provides as follows:

“43. (1) A chairman, or in the case of an appeal tribunal which has only one member, that member, may by summons, or in Scotland, by citation, require any person in Great Britain to attend as a witness at a hearing of an appeal, application or referral at such time and place as shall be specified in the summons or citation … but-

(a)	no person shall be required to attend in obedience to such summons or citation unless he has been given at least 14 days’ notice of the hearing or, if less than 14 days’ notice is given, he has informed the tribunal that the notice given is sufficient; and 
(b)	no person shall be required to attend and give evidence or to produce any document in obedience to such summons or citation unless the necessary expenses of attendance are paid or tendered to him.”

10.	  Current guidance to clerks, issued on 15 February 2006, states that a request for a witness to attend the tribunal hearing should be referred to the district chairman to decide whether a witness summons should be issued.  The requesting party will need to be informed if the request is granted or refused.  If it is granted, a copy of the witness summons will need to be referred to the district chairman for completion before being issued.  There are now standard forms for completion by the district chairman and for notifying the requesting party.  It is plain from the standard procedure that it is contemplated that the request may well be made before the date of the hearing is known but that the witness summons or citation will only be issued when the date is known and can be inserted in the summons or citation.

11.	I have not been told whether any similar procedure was in existence in the summer of 2005, but such a procedure was essential to enable witness summonses or citations to be issued in accordance with regulation 43(1).  It is also plain that the way the matter was dealt with by the Appeals Service in the present case did not enable a witness summons to be issued to the proposed witnesses even with an abridged timetable, and indeed no attempt was made by the tribunal or the appeals service to issue any witness summons.   

12.	The position was that either a chairman had considered the claimant’s request and decided to issue a witness summons or the request had not been put before a chairman and had been dealt with in some other manner.  The end result was that although it was considered that the evidence of the two witnesses was sufficiently important to justify the payment of their expenses, no witness summons was ever issued and the claimant was only notified of the decision that their expenses could be paid the day before the hearing.  This was plainly insufficient notice.  

13.	The tribunal either failed to appreciate that it was at least in part due to delay on the part of the Appeals Service in dealing with the claimant’s application received on 15 June 2005 that two of the witnesses were not available to give oral evidence, or failed to give sufficient weight to that fact.  As the representative of the secretary of state points out on this appeal, under article 6(1) of the European Convention on Human Rights each party must be afforded a reasonable opportunity to present his case – including his evidence – under conditions that do not place him at a disadvantage vis-à-vis his opponent (Ankerl, European Court of Human Rights, 22 February 1996, paragraph 38, as cited in CIB/2308/2001).

14.	The claimant was entitled to a reasonable opportunity to adduce the oral evidence of her witnesses. For her to have that opportunity in the circumstances, as should have been plain to those dealing with the application at the Appeals Service, an early decision was required on her application received on 15 June 2005.  It should have been treated as an application for two witness summonses and should have been placed promptly before a district or regional chairman for a decision.  That does not appear to have happened.  Instead it took nearly two weeks for further information to be sought.  That information was provided promptly, by letter of 29 June, received on 1 July, but it then took a further 10 days for somebody to communicate a decision.   No explanation was offered to the claimant at any stage of the need for witness summonses, or of the 14 days notice needed for them without the consent of the witnesses to shorter notice.  No advice was given to her to get the witnesses’ agreement to shorter notice.   There is no indication that the members of the Appeals Service dealing with the application had any idea of the time constraints that applied or of the procedures necessary.

15.	As a result of the failings of the Appeals Service in this case, the claimant did not have the opportunity to which she was entitled to adduce the oral evidence of her witnesses and for that reason the tribunal was in error of law in proceeding and its decision must be set aside and the case must be remitted for hearing before a new tribunal.

16.	When the new hearing date is fixed, a chairman should issue witness summonses for the two witnesses whose oral evidence the claimant wishes to adduce.  At least 14 days notice should be given to the witnesses and the necessary expenses of attendance should be paid or tendered to them in accordance with regulation 43(1).

17.	The appeal is allowed and I make the order set out in paragraph 1.

	(signed on the original)	Michael Mark
		Deputy Commissioner
		9 May 2006