Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2009] NISSCSC C25_08_09(DLA) (25 June 2009)

Decision No: C25/08-09(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998 DISABILITY LIVING ALLOWANCE Appeal to a Social Security Commissioner on a question of law from a Tribunal's decision dated 2 August 2007 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. Having considered the circumstances of the case and any reasons put forward in the request for a hearing, I am satisfied that the appeal can properly be determined without a hearing.
2. The decision of the appeal tribunal dated 2 August 2007 is in error of law. The error of law identified will be explained in more detail below.
3. Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.
4. For further reasons set out below, I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given, as the appellant has now to be given the opportunity to have representation and/or to submit additional evidence for consideration. Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.
5. It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of her entitlement to disability living allowance (DLA) remains to be determined by another appeal tribunal. The newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal.

Background

6. On 2 November 2006, a decision-maker of the Department decided that the applicant was not entitled to DLA from and including 22 October 2006. The decision was made on the basis of a renewal claim to DLA.
7. A letter disputing the decision dated 2 November 2006 was received in the Department on 12 November 2006.
8. Further evidence was received in the Department on 20 November 2006.
9. On 23 March 2007, the decision dated 2 November 2006 was reconsidered but was not changed.
10. An appeal against the decision dated 2 November 2006 was received in the Department on 19 April 2007.
11. The appeal tribunal hearing took place on Thursday 2 August 2007.
12. The record of proceedings for the appeal tribunal hearing records that the appeal tribunal had before it:

(i) the appeal submission and scheduled documents;

(ii) the appellant's general practitioner records;

(iii) previous papers;

(iv) a letter from the appellant dated 22 July 2006, stated as having been received on 24 July 2007;

(v) a letter from the appellant dated 2 July 2007, and

(vi) Form Reg 2(i)(d).

13. All of the latter documents are important in relation to the issue of whether the appellant wished to be present at an oral hearing and whether she wished a representative to be present.
14. The appeal tribunal disallowed the appeal, and confirmed the decision dated 2 November 2006.
15. On 18 January 2008 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS).
16. On 25 January 2008, the application for leave to appeal was refused by the legally qualified panel member (LQPM).

Proceedings before the Social Security Commissioner

17. On 4 March 2008, a further application for leave to appeal to the Social Security Commissioner was received in the Office of the Social Security Commissioners and Child Support Commissioners (OSSC).
18. On 8 May 2008 observations were sought from Decision Making Services (DMS) and these were received on 23 May 2008. DMS opposed the application.
19. Observations were shared with the appellant on 29 May 2008.
20. There followed a lengthy exchange of correspondence between OSSC, the applicant and DMS.
21. On 8 July 2008, the late application was accepted for special reasons by the Chief Social Security Commissioner.
22. On 3 February 2009, I granted leave to appeal. In granting leave to appeal, I stated that an arguable issue had arisen as to whether there was a procedural irregularity capable of making a material difference to the outcome or the fairness of proceedings.

Errors of law

23. A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.
24. In R(I)2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals. As set out at paragraph 30 of R(I)2/06 these are:

"(i) making perverse or irrational findings on a matter or matters that were material to the outcome ('material matters');

(ii) failing to give reasons or any adequate reasons for findings on material matters;

(iii) failing to take into account and/or resolve conflicts of fact or opinion on material matters;

(iv) giving weight to immaterial matters;

(v) making a material misdirection of law on any material matter;

(vi) committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …

Each of these grounds for detecting any error of law contains the word 'material' (or 'immaterial'). Errors of law of which it can be said that they would have made no difference to the outcome do not matter."

The error of law in the present case

25. On 25 June 2007, a Clerk to TAS wrote to the appellant utilising a standard template TAS letter 'Reg2d'. The purpose of this correspondence was to request the appellant to indicate whether she wished to have an oral hearing of her appeal or whether she was content to proceed without an oral hearing. In order to indicate her intentions, the appellant was asked to complete and return Form Reg2(i)(d).
26. On 2 July 2007, a completed Form Reg2(i)d was received in TAS. The appellant, who had signed and dated the form, had ticked a box indicating that she was content for the appeal to proceed without an oral hearing.
27. Also on 2 July 2007, further correspondence was received in TAS from the appellant. In this correspondence, the appellant stated:

'Please find enclosed my appeal documents. I will be content with an appeal heard on the papers as I do not feel that I would be able to cope with sitting in front of a tribunal in view of my condition. …'

28. In the appeal papers before me, there is a further letter from the appellant. This letter is dated 22 July 2006, but I am certain that 2006 should read 2007. This is because the letter is addressed to the 'Panel' and the appeal was due to be heard on 2 August 2007. The letter is also in chronological sequence in the file and follows on from the letter dated 2 July 2007.
29. In this letter, the appellant stated, amongst other things:

'Let me apologise for not being able to attend this tribunal but as I stated in my previous letter I could not cope with sitting in front of a panel as I feel that I am being judged and I have not done anything wrong … I have been referred to the community addiction team and I am receiving counselling at present. Rita O'Hagan who I am seeing has also referred me … Due to circumstances beyond her control my representative Rita O'Hara (Community Addiction Team, Everton Complex, Crumlin Road, Belfast …) is unable to attend the hearing on my behalf but she has requested that you call her or request a letter from her and she will let you have her opinion on my condition. I have informed …, Clerk of the Appeals of the situation.'

30. It is now clear that the reference to Rita O'Hara is a mistake on the part of the appellant. Her Community Psychiatric Nurse, who was also her nominated representative, was called Rita O'Hagan.
31. TAS did attempt to make contact with Rita O'Hagan. On 16 July 2007, a Clerk to the Appeals Service wrote to Ms O'Hagan, utilising a standard template TAS letter 'AT7d'. This letter informs Ms O'Hagan about the date and time of the appellant's appeal tribunal hearing, and informs Ms O'Hagan that should she wish to forward any evidence, or other submission, in connection with the appeal, she should do so at least one week before the date of the appeal tribunal hearing. Unfortunately the letter sent to Ms O'Hagan was sent to the wrong address, and used the incorrect post-code, a fact now accepted by the Department. The incorrect address includes the Crumlin Road but makes no reference to the Everton Complex.
32. In submissions in connection with her appeal to the Social Security Commissioner, the appellant has accepted that Ms O'Hagan would not have attended the oral hearing of her appeal, as a representative, as this was not within her remit. Further, she stated that in order for Ms O'Hagan to complete an official medical report in support of her appeal to the appeal tribunal, Ms O'Hagan would have had to have received formal notification of the date and time of the appeal tribunal hearing, and a formal request for the medical report would have had to have been made. She submitted that this process was explained to the Clerk to TAS. As the AT7d letter was sent to the wrong address, it did not arrive with Ms O'Hagan until after the date of the appeal tribunal hearing, too late for her to complete a medical report on which the appellant would have relied.
33. I am satisfied that the appellant was of the view that official notification of the date and time of the oral hearing of her appeal would have been forwarded to Ms O'Hagan. I am satisfied that the appellant was of the view that TAS would have made an official request for a medical report from Ms O'Hagan, and that had this medical report been completed by Ms O'Hagan, then it would have been before the appeal tribunal. Although I am satisfied that the appellant was of the view that an official request would have been made by TAS, she was nonetheless, mistaken in that view. As I understand it, the Appeals Service would not action such a request but would place the information concerning it before the appeal tribunal. Additionally, the AT7d letter which was sent to Ms O'Hagan did mention the possibility of further evidence being forwarded by Ms O'Hagan to the appeal tribunal for its consideration.
34. It is clear that while TAS did endeavour to forward official notification of the date and time of the appeal tribunal hearing to Ms O'Hagan, and inform her that she could forward evidence to the appeal tribunal, it was sent to the wrong address. Accordingly, Ms O'Hagan was denied the opportunity to make representations or supply evidence on behalf of the appellant.
35. The appeal tribunal proceeded on the basis that the appellant was not in attendance and her representative was not in attendance. The record of proceedings for the appeal tribunal hearing confirms that the appeal tribunal was in receipt of all of the correspondence from the appellant concerning her representative. It is not clear whether the appeal tribunal had sight of the AT7d letter which was sent to Ms O'Hagan, or was aware of the communication between the appellant and the Clerk to TAS. Had the appeal tribunal been on notice of the correspondence and communication, it might have been considered whether additional evidence from Ms O'Hagan was necessary.
36. I am satisfied that the administrative error in failing to forward the AT7d letter to the correct address amounted to a procedural irregularity capable of making a material difference to the outcome or the fairness of proceedings. It is probable, in my view, that had Ms O'Hagan received proper notification in advance of the hearing then she would have given consideration to the preparation of a medical report for consideration by the appeal tribunal.

The appellant's other grounds for appealing to the Social Security Commissioner

37. Having found that there was a procedural irregularity which was capable of making a material difference to the outcome or the fairness of the proceedings, I do not have to consider the appellant's other grounds for appealing. I would indicate, however, that I would not have found the decision of the appeal tribunal to be in error of law on the other grounds cited by the appellant.

Disposal

38. The decision of the appeal tribunal dated 2 August 2007 is in error of law. Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.
39. I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given, as has now to be given the opportunity to have representation and/or to submit additional evidence for consideration. Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.
40. The appellant is to note that in advance of the next hearing of the appeal, she is to ensure that TAS is to know the name and correct postal address of any nominated representative. Further, the appellant is to note that she must not assume that additional evidence will be obtained on her behalf by TAS or the appeal tribunal. If there is evidence, in the form of medical reports or otherwise, which the appellant would wish to be placed before the appeal tribunal, she must take appropriate action herself to see that this is obtained and forwarded in time.

(signed): K Mullan

Commissioner

25 June 2009