Northern Ireland - Social Security and Child Support Commissioners' Decisions

 
R 3/04 (IB)

Mrs M F Brown

Commissioner

21.06.04 C15/03-04(IB)

Failure of clerk to appeal tribunal to issue a direction under regulation 39(1) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999

The claimant appealed against the decision of the Department finding him capable of work. He completed the standard appeal form GL24 and indicated that he wanted his appeal decided on the papers only. In the section headed "After you have made an appeal" the GL24 states:

(1) After you have appealed we will offer you an explanation of our decision.

(2) We will look at the decision again if we have not already done this. …

(3) If we do not change the decision, we will send your appeal, and an explanation of the law and facts used to make the decision, to The Appeals Service. They will also include any other important papers.

(4) You will also receive a form. You must fill in this form and send it to The Appeals Service within 14 days. If you do not, your appeal may be cancelled and will not continue further.

(5) The form also asks you questions about how you want your appeal to be looked at. You can choose between an oral hearing and a paper hearing.

The booklet then goes on to explain the nature of an oral hearing and of a paper hearing and at the end of this section states:

"If you choose a paper hearing but change your mind, you can choose to have an oral hearing. Write to The Appeals Service straight away."

The claimant was advised that as no party had requested an oral hearing arrangements would be made to have the appeal determined on the papers only. He was given the opportunity to forward further information. The appeal proceeded as a "paper hearing" and was disallowed. The claimant appealed to the Commissioner on the grounds that he did not receive notification of the appeal hearing.

Held, allowing the appeal, that:

1. the failure of the clerk to the tribunal to comply with regulation 39(1) of the Social Security and Child Support (Decision and Appeals) Regulations (Northern Ireland) 1999 rendered the decision of the tribunal erroneous in law (paragraph 16);

2. when requesting a paper hearing on GL24 the claimant was advising the Department and not the tribunal that he wanted a paper hearing (paragraph 17);

3. whether the non-compliance of regulation 39(1) is enough to vitiate a decision depends on the circumstances of the case (paragraph 17 and 21).

DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal, leave having been granted by me, by the claimant against a decision dated 28 March 2003 of an appeal tribunal sitting at Dungannon. That tribunal had disallowed the claimant's appeal in connection with incapacity credits. The tribunal decided that the claimant did not satisfy the personal capability assessment (PCA) and accordingly could not be treated as incapable of work from and including 30 January 2003. I held a hearing of the appeal which the claimant did not attend but at which Mr McNamara attended to represent the Department. I am grateful to Mr McNamara and to Mrs Gunning (who made earlier written representations) for their assistance.
2. The claimant's appeal to me was contained on an OSSC1 form received in the Commissioners' Office on 24 October 2003. The grounds for appealing were as follows:

"I think it was wrong because you disagreed with my own GP's diagnosis I have been having problems with my mental health. I did not receive notification of when + where my Tribunals was held."

3. The factual background to the case was that the claimant had appealed against a Departmental decision using the standard Departmental appeal form. The appeal was received in the Department on 5 February 2002. The form contained a series of tick boxes. Two of those boxes related to whether or not the claimant wanted an oral hearing of his appeal. He had ticked the box indicating that he wanted his appeal decided on the papers only. I am informed by Mr McNamara, and have no reason to doubt, that this form is contained in the back of advice booklet GL24, a specimen copy of which was produced to me. This booklet contains information in a section headed: -

"After you have made an appeal".

4. It states:

(1) "After you have appealed we will offer you an explanation of our decision.

(2) We will look at the decision again if we have not already done this. …

(3) If we do not change the decision, we will send your appeal, and an explanation of the law and facts used to make the decision, to the Appeals Service. They will also include any other important papers.

(4) The Appeals Service will send you one copy of all the papers.

(5) Read the appeal papers very carefully. If you do not understand something, ask the office that sent you the decision, an advice centre or a solicitor to explain.

(6) You will also receive a form. You must fill in this form and send it to the Appeals Service within 14 days. If you do not, your appeal may be cancelled and will not continue further.

(7) The form also asks you questions about how you want your appeal to be looked at. You can choose between an oral hearing and a paper hearing."

5. The booklet then goes on to explain the nature of an oral hearing and of a paper hearing and at the end of this section states:

"If you choose a paper hearing but change your mind, you can choose to have an oral hearing. Write to the Appeals Service straight away."

6. The claimant was sent a letter dated 12 March 2003 from B O'K…, Clerk to The Appeals Service, in connection with his appeal. This letter included the paragraph:

"As no party has requested an oral hearing, I will make the necessary arrangements for a paper determination. The appeal will be determined on or after 14 days from the date at the top of this letter, therefore, if you have any further information you would like the tribunal to see, please forward all relevant documents to The Appeals Service by 26/03/2003."

The letter also included an information leaflet and a set of documents containing the appeal submission prepared by the Department.

7. The hearing was held as a "paper hearing" and the claimant was not given any additional information as to when the hearing would be held.
8. The claimant was not sent a direction pursuant to regulation 39(1) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999. This paragraph reads as follows:

"Where an appeal or a referral is made to an appeal tribunal, the clerk to the appeal tribunal shall direct the appellant and any other party to the proceedings to notify the clerk to the appeal tribunal in writing whether he wishes to have an oral hearing of the appeal or referral or whether he is content for the appeal or referral to proceed without an oral hearing."

9. It was on the question of whether the tribunal had erred in law in proceeding when this direction had not been issued that I granted leave to appeal. The Department opposed the appeal both by letter dated 6 February 2004 and further submission dated 20 May 2004 (both being from Mrs Gunning) and at the hearing by Mr McNamara.
10. The claimant did not attend the hearing though he had been notified of same by letter dated 18 May 2004.
11. The Department submitted that while there had been an undoubted breach of regulation 39(1) the question then arose as to whether that non-compliance rendered the tribunal decision erroneous in law. It referred to the advice booklet GL24 and to the fact that the claimant had clearly indicated that he wanted his appeal to be decided on the papers. He referred further to the letter sent to the claimant on 12 March 2003 and submitted that if he had wanted an oral hearing the claimant could have contacted The Appeals Service at that stage and the fact that he did not do so indicated that he was happy for his case to be determined on the papers.
12. The Department referred further to a letter received on 17 April 2003 wherein the claimant requested a statement of reasons for the tribunal decision and indicated that he wished to appeal to a Commissioner. In that letter the claimant made no mention of the fact that his appeal had been decided without him being present. He had also completed two OSSC1 forms applying for leave to appeal to the Commissioner. It was only in the form completed on 21 October 2003 that he mentioned that there had been no oral hearing. Accordingly both Mrs Gunning and Mr McNamara submitted that although the procedures set out in regulation 39(1) were not complied with there was a clear indication from the claimant that he wanted his appeal to be determined on the papers only and he was in possession of a booklet which advised him about the appeal process. It was also submitted that the tribunal had obviously felt that it could decide the case on the documentary evidence before it and that the tribunal's decision was sustainable on the evidence and adequately explained.
13. With regard to the other ground of appeal the Department submitted that the claimant had been given an opportunity to provide details of how his illness affected his ability to perform certain activities but had failed to respond to that request. The medical evidence before the tribunal was a report from the claimant's General Practitioner and a report from a doctor from the Medical Support Services. The tribunal had clearly considered the evidence and its decision was sustainable on that evidence.
14. The Department therefore opposed the appeal.
15. I am in agreement with the Department as regards the second ground. The tribunal's decision was clearly sustainable on the evidence and it obviously considered both the evidence of the General Practitioner and that of the Medical Support Services' doctor.
16. As regard the ground relating to the non-compliance with regulation 39(1); this paragraph puts an obligation on the clerk to the tribunal to issue a direction. That was not complied with. While I do not fault the tribunal which was entitled to assume that preliminary procedures had been correctly carried out, nonetheless it erred in law in proceeding when this direction had not been issued. I understand from Mr McNamara that it is a regular practice not to issue the relevant direction when the claimant has in his appeal form stated that he wants a hearing on the papers. If that is correct, it is a matter of some concern, as the practice is not in compliance with the Regulations.
17. There having been non-compliance with the Regulations I had to consider whether this non-compliance vitiated the decision and in particular whether the claimant had had an adequate opportunity to seek a hearing. Certainly he had been asked by the Department if he wanted a hearing and had indicated to the Department that he wanted a paper hearing. He had also been informed by the Department that he could change his mind about having an oral hearing and had indicated no change. He may well not have attended a hearing had one been arranged. Equally, however, the provisions of regulation 39(1) are there for some reason. They are there so that the claimant has an opportunity to indicate to the tribunal (not to the Department) whether or not he wants a hearing. Regulation 39(3) provides further that the said direction shall include a statement informing the appellant that, if he does not respond in writing to the direction required under regulation 39(1) within a specified period the appeal may be struck out. In this case the claimant had indicated to the Department that he wanted his appeal determined on the papers and the tribunal clerk, at least, was aware of this. The Departmental appeal form as extracted above contains the following sentences: -

(1) "After you have appealed we will offer you an explanation of our decision …

(2) The Appeals Service will send you one copy of all the papers.

(3) Read the appeal papers very carefully …

(4) You will also receive a form. You must fill in this form and send it to the Appeals Service within 14 days. If you do not, your appeal may be cancelled and will not continue further.

(5) The form also asks you questions about how you want your appeal to be looked at. You can choose between an oral hearing and a paper hearing."

18. When the claimant informed the Department that he wanted his appeal determined on the papers, he did so without the explanation referred to above. He may also, if he read and understood the leaflet, have had a reasonable expectation that the tribunal would offer him a further opportunity to choose the method by which he wished his appeal to be determined after he had received the Department's explanation.
19. In addition in his form of appeal to me dated 21 October 2003, the claimant stated under the "Reasons for lateness" section that the tribunal had made its decision in January. This is incorrect, the decision in January was made by the Department. The tribunal made its decision in March. He also stated that he wished his case to proceed even though late:

"because I never received any notification after January I was still in receipt of Income Support after the cut off time so I assumed my case was still being dealt with."

20. In a reply to the Department received on 21 October 2003 (in response to its letter relating to entitlement to IS being stopped) the claimant stated:

"I am appealing against your decision because I was not present when decision was made. I am appealing this as my own GP cannot have wrongly diagnosed me. I was still in receipt of I.S. so did not know I no longer was going to get my Incapacity so I need this appeal to go ahead as I am entitled to Incapacity."

21. I am unable, against that background, to conclude that the claimant had waived his right to seek and therefore have an oral hearing and I cannot accept Mr McNamara's contention to that effect. I do agree that the claimant did not mention his not having had a hearing until some months after the decision was received by him (and it appears after his IS had been stopped). However, he was unrepresented and I am not prepared to conclude that this lapse of time means he had originally waived the said right and changed his mind later.
22. That being so, I consider that in this case the said procedural omission was fatal to the decision.
23. I set the decision aside with some reluctance as I consider that there was no fault on the tribunal's part and it did deal with the substantial issues adequately. Nonetheless, because the regulation was not complied with and because in this case I consider that omission was fatal to the decision, I set the tribunal's decision aside as in error of law because it proceeded without the relevant direction being sent out.
24. Mr McNamara made certain representations in relation to questions under the European Convention on Human Rights. These largely related to whether there was always a right to an oral hearing under Article 6 thereof. In light of the above and as it is agreed that, had the claimant sought an oral hearing in response to the direction under regulation 39(1) he would have had a right to one, I do not consider it necessary to deal with those submissions.
25. I did consider whether I should give the decision which the tribunal should have given. The claimant had not attended before me though he was notified of his right to do so. I was therefore somewhat inclined to give the decision. However, there is a question relating to possible mental illness here and it appears to me that the tribunal, with its medical expertise, would be the better body to deal with the matter. I therefore remit the case to a differently constituted tribunal which should conduct an oral hearing (the claimant having indicated in his grounds of appeal that the absence of such a hearing was one of the factors which made him consider that the tribunal's decision was in error of law). The claimant should be aware that if he does not attend such a hearing, the tribunal may proceed in his absence.