Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1995] NISSCSC A4/95(AA) (3 June 1996)

 


Application No: A4/95(AA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS) (NORTHERN IRELAND) ACT 1992 ATTENDANCE ALLOWANCE Application by the above-named claimant for leave to appeal to the Social Security Commissioner on a question of law from the decision of the Newry Disability Appeal Tribunal dated 15 April 1994
DETERMINATION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an application by the claimant for leave to appeal against the decision of a Disability Appeal Tribunal relating to a claim for attendance allowance.
2. I arranged an oral hearing at which claimant was represented by Mr Brady and the Adjudication Officer was represented by Mr Shaw.
3. Mr Brady first raised the point that the Tribunal proceeded in the absence of the claimant, even though a previous Tribunal had been adjourned to enable the claimant herself or some member of her family or friends to attend and to give some evidence as to her condition and perhaps to provide further medical evidence.
4. Mr Brady said that there was a misunderstanding why he was not at the Tribunal because he had telephoned and been informed that the Tribunal was to be heard at 2.00 pm and that he and claimant's daughter arrived at 2.00 pm to find that the Tribunal had been at 10.00 am and that a decision had been made in his absence. He then sought to have the decision set aside but that was rejected by the Tribunal. One of his grounds of appeal was that the Tribunal should not have gone ahead in the absence of the claimant or the claimant's representative. He also argued that the medical report was against the claimant because she had told the doctor what she thought the doctor wanted to hear.
5. Mr Shaw on behalf of the Adjudication Officer said he had every sympathy with Mr Brady and that he was a professional representative and that it was most unusual for him not to appear. He was surprised that the Tribunal went ahead in his absence and that no enquiry was made as to why he was not in attendance.
6. Mr Shaw then referred to the fact that the Tribunal had read hospital notes and that no-one had seen the hospital notes other than the Tribunal. He also said that the previous award expired in May 1993, the claim was made in January in anticipation of the award running out and that the medical examination was in January 1993 and that the if hospital notes were left out then there was very little or no current medical evidence.
7. I am satisfied that the medical evidence was sufficiently current because the examination was in January and the claim was running out from May and there was no suggestion that there was any deterioration between these two dates. As far as the question of the hospital notes was concerned and that no-one other than the Tribunal saw the hospital notes, that matter has been dealt with on several occasions and I am satisfied that no injustice or breach of natural justice occurred because consent had been given for the Tribunal to see the hospital notes.
8. Turning to the fact that the matter had previously been adjourned to allow claimant's representative to produce evidence. I, like Mr Shaw, am very surprised that the Tribunal did not adjourn as Mr Brady said that he had been a representative for 14 years, had appeared in over 8,000 appeals and this is the first time that there was a misunderstanding and that the proper consideration which the Tribunal should have given on his application to have the decision set aside was not whether he was given notice of the hearing or not, but whether or not the interests of justice so required the setting aside.
9. The Notice of Determination not to set the decision aside is not a decision, there is therefore no appeal from that Determination, other than an application for judicial review but it is not a matter for me to decide.
10. The Tribunal gave reasons for its decision as:-

"Her condition has improved since she had her hip replacement

operation. She no longer needs a commode or incontinence pads.

She does not require frequent attention or supervision by day

or prolonged or repeated attention or supervision at night."

While I have every sympathy with the claimant I am satisfied that the Tribunal did not err in law and that it gave proper consideration to the evidence before it and the application must be refused. That of course does not preclude the claimant from making a fresh claim.

(Signed): C.C.G. McNally

COMMISSIONER

3 June 1996