Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2007] NISSCSC C15_07_08(DLA) (03 December 2007)

Decision No: C15/07-08(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998 DISABILITY LIVING ALLOWANCE Application by the claimant for leave to appeal and appeal to a Social Security Commissioner on a question of law from a Tribunal's decision dated 31 January 2007
DECISION OF THE SOCIAL SECURITY COMMISSIONER

I grant leave to appeal on the grounds that the tribunal decision is erroneous in point of law. I treat the application as an appeal and I am satisfied that it can be properly determined without an oral hearing.

I have concluded that the appellant was not given a fair hearing to which he was entitled under Article 6 of the Human Rights Act. This was not due to any failure by the tribunal. It was not known on the day of hearing on 31 January 2007 that the appellant, who gave evidence, was suffering from a very serious illness which was diagnosed following a hospital admission and a major operation in April 2007. His ability to give evidence may have been affected and therefore the assessment of his credibility may have been different had his medical condition been known to the tribunal. The decision of the tribunal is therefore set aside and the appeal is remitted for rehearing before a completely different tribunal.

It is unnecessary for me to comment in detail on the other issues raised in the appeal by the claimant and the Department. However, I would like to draw the attention of the parties to the following matters. In the application by the appellant's solicitor, there are two errors in the citation from Regulation 6(2) of the Social Security and Child Support (Decision and Appeals) Regulations. In paragraph 6(2)(a)(i) the final word is "or" not "and". In Regulation 6(2)(b)(i) for the word "where" the word "or" should be substituted.

In the transcript of the tribunal decision there are a number of typographical errors which should have been corrected before the decision was promulgated.

In the case summary, it is recorded that the claimant requested a reconsideration of the decision dated 26 June 2006 and on 18 July, the decision was reconsidered but not changed. That was a revision decision made with regard to this case and subsequently the claimant made an appeal. The tribunal therefore had jurisdiction to consider the facts to that date and not 26 June as is asserted in the submission.

(Signed): C MacLYNN

DEPUTY COMMISSIONER

3 December 2007