Northern Ireland - Social Security and Child Support Commissioners' Decisions




 


[2005] NISSCSC C1_05_06(IB) (26 September 2005)

Decision No: C1/05-06(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992
SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
INCAPACITY BENEFIT
Appeal to a Social Security Commissioner on a question of law from a Tribunal's decision dated 13 August 2004
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal, leave having been granted by me, by the claimant, against a decision dated 13 August 2004 of an appeal tribunal sitting at Newry. That tribunal disallowed the claimant's appeal in relation to incapacity benefit. The appeal relates not to the question of whether or not the claimant was incapable of work but to the fact that the tribunal proceeded in the claimant's absence. The claimant, who is represented by Mr Brady, states that as a result of this there was a breach of her right to a fair hearing.
2. On 1 July 2004 the Appeals Service was notified by telephone by the claimant that her representative was Mr Brady. Notification of the date of hearing (13 August 2004) was sent by the tribunal clerk to the claimant on 27 July 2004. She therefore was afforded rather more than the statutory ten days notice of hearing. The claimant states that at the end of July or the beginning of August she made a telephone call to the appeals service stating that her representative was unavailable and that she wanted another date. She states that she was advised to complete the appropriate part of the notification which had been sent to her and post it in. She states that she did this on 5 August. The appeals service have no record of either the telephone call or the form being received. The tribunal heard the matter and decided to proceed (as it was entitled to do) in the claimant's absence. It disallowed her appeal. It is common case that the claimant was never told that her hearing was postponed nor was she notified of any other date. The claimant states that she did not attend the hearing because she thought it would not go ahead because the appeals service was aware that her representative was not available and she had written seeking a postponement.
3. Amongst the correspondence in this case was an undated letter from the claimant received in this office on 22 February 2005 in which she stated:

"My representative M Brady had also contacted the appeals service to say that he would not be available for a period in August 2004 as he was on holiday."

4. I directed a letter dated 23 March 2005 to be sent to Mr Brady asking that he supply details of when and by what means he contacted the Appeals Service and whether he expressly mentioned this particular case when he did so and if so did he ask for it to be postponed. There was no reply signed by Mr Brady but an undated letter which may be in his handwriting but which was signed by the claimant was received in this office on 5 April 2005. That letter states Mr Brady informed the appeals service a number of weeks in advance that he would be on holiday from 9 August 2004 and not available for representation. It does not state whether or not he mentioned this particular case to the appeals service.
5. I am, therefore, unable to determine that Mr Brady ever wrote to the Appeals Service in connection with this particular case.
6. I have also been sent, by the claimant, a part of the notification form to the claimant in relation to hearings. This part which was received by the claimant contains certain notes and amongst those notes is the following.

Question 2a

"If you do not attend and give no reason for this, the Tribunal may proceed to deal with the appeal in your absence. If you are unable to attend for some unavoidable reason on the day allocated for the hearing, tick this box and give your reasons so that the clerk, or the legally qualified member can decide whether or not to arrange another date."

7. On perusal of this part of the form it is quite apparent that a claimant is not thereby given to understand that a request for a postponement will be automatically acceded to or that another date will be arranged. This is a matter for decision by the clerk or the legally qualified panel member as the form makes clear. The claimant in this case was not notified that any other date was being arranged or that a postponement had been granted.
8. The Department, which was represented by Miss Martin of its decision making services branch opposes the appeal. She states:

"Regulation 51 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 sets out the procedures to be followed in relation to requesting and granting postponements and adjournments. If the clerk to the appeal tribunal had received the request for an adjournment as [the claimant] asserts was posted on 05.08.04, then there would have been a determination made to either grant or refuse this request for an adjournment, which would have been sent to [the claimant].

In the absence of this determination or any communication from the clerk to the contrary, [the claimant] should have realised that the appeal would go ahead on 13.08.04 as arranged, and she would have been able to request an adjournment on the day. [The claimant] did not avail of the opportunity to attend, and the Tribunal went ahead on 13.08.04."

9. I have been able to find very little authority in relation to this matter but decision CDLA/3680/97 contains some comments, albeit obiter, which are of assistance. This is a decision of Mr Commissioner Rowland in Great Britain and at paragraph 6 thereof Mr Commissioner Rowland states as follows:

"Where an application for a postponement is refused – or no reply is received to such an application – it is incumbent upon the claimant to take all possible steps to appear, or to have someone appear on his or her behalf, before the tribunal in order to assist the tribunal in considering whether there should be an adjournment. As I have already indicated, it would be helpful if this point were to be made to claimants when applications for postponements are rejected."

10. I am in agreement with Mr Commissioner Rowland that the claimant having received no reply to her adjournment request should have made every effort to attend. The claimant was not entitled to assume that her request had been granted and that being so she should have attended at the hearing when she could have sought an adjournment on the grounds of Mr Brady's non availability. The form could perhaps be amended to emphasize that claimants should not assume a hearing has been postponed and should attend unless they hear to the contrary. Even on the present form, however it does not appear to me that it was reasonable for the claimant to assume that the postponement had been granted and that the hearing would not go ahead. She had not been told that a postponement had been granted, she had not been notified of any alternative date and the form did not indicate that a request for a postponement would be granted. Indeed it stated quite clearly that a decision would have to be made "whether or not to arrange another date". A reasonable claimant would have tried to find out what that decision was.
11. I consider that the tribunal was entitled to proceed in the absence of the claimant in the circumstances. It is unfortunate that the claimant did not attend but her not doing so was in no way the fault of the tribunal. She did have the opportunity to attend and she did not take it. I do not consider that there was any breach of the right to a fair hearing in this case. The appeal is therefore disallowed.

(Signed): Moya F Brown

Commissioner

26 September 2005