Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2009] NISSCSC C28_09_10(DLA) (14 September 2009)

Decision No: C28/09-10(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 18 September 2007
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. Having considered the circumstances of the case, I am satisfied that the application can properly be determined without a hearing.
2. I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.
3. The decision of the appeal tribunal dated 18 September 2007 is in error of law. The error of law identified will be explained in more detail below.
4. 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.
5. 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. This is because there is detailed evidence relevant to the issues arising in the appeal, including medical evidence, to which I have not had access, and there may be further findings of fact which require to be made. Further I do not consider it expedient to make such findings at this stage of the proceedings. Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.
6. In referring the case to a differently constituted appeal tribunal for re-determination, I direct that the appeal tribunal takes into account the guidance set out below.
7. 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. In accordance with the guidance set out below, the newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal.

Background

8. This application has a detailed and complicated background.
9. The decision under appeal is a decision of the Department, dated 20 September 2006 which decided that, on an original claim, the appellant should not have an entitlement to DLA from and including 16 June 2006. There was no reconsideration.
10. The appeal was received in the Department on 2 November 2006.
11. A first oral hearing of the appeal took place on 3 May 2007. The appeal was adjourned to enable the appellant to obtain a consent form for the release of her general practitioner (GP) records to the appeal tribunal and for her to be given a copy of the appeal submission.
12. On 18 June 2007, a letter was received in the Appeals Service (TAS), from the appellant, which stated 'I wish to withdraw the above appeal and apologise for any inconvenience.'
13. On 19 June 2007 a further oral hearing of the appeal took place. The appellant was present. The record of proceedings (ROPs) for the appeal tribunal hearing notes that the appeal tribunal considered the letter which had been received in TAS on 18 June 2007. It is also noted that the appellant had stated that:

'1 The letter had been prepared by her former Representatives, Citizens Advice Bureau.

2 She consulted with a new Representative and decided to proceed with the appeal.

3 She does wish to proceed.'

14. The appeal tribunal then went on to consider the issue of the availability of the appellant's GP records. The following was recorded in the ROPs in relation to this issue:

'Her medical notes and records have not been received. She thought they would be here and told the General Practitioner to release them. She was referred to Form AT16 wherein General Practitioner states he is unwilling to release the notes "after discussion with patient". She accepts she did speak to her General Practitioner about this and does wish to have some documents withheld. Tribunal would like to see her medical notes and records. She will discuss the matter with her General Practitioner. (Some documents will be withheld). We viewed DAT2 consent form dated 03.05.07. Appellant countersigned the form with today's date in the presence of the Clerk.'

Thereafter, the ROPs notes that the appeal was adjourned.

15. In the file of papers which has been made available to me, there is a copy of a letter which was sent to the applicant on 3 May 2007. The letter is a standard form letter from TAS to appellants with forthcoming appeals relating to DLA, and is given the notation 'DAT2 Consent'. The practice and procedure with respect to 'DAT2 Consent' letters will be explored in more detail below. In summary, however, the letter gives information concerning the release of GP records to the appeal tribunal and seeks the consent of the appellant to such a release. On the actual 'DAT2 Consent' letter dated 3 May 2007, it is noted that the appellant's GP is 'Dr Do ...'.
16. Accompanying the 'DAT2 Consent' letter is a further standard form from TAS headed 'Consent Form'. Once again, this form is a standard one which is forwarded to appellants with forthcoming appeals relating to DLA. Once again, the practice and procedure with respect to 'Consent Forms' will be explored in more detail below. In summary, however, the form gives more detailed information concerning the release of GP records to the appeal tribunal and seeks the consent of the appellant to such a release, in full or limited form, or permits the recipient to refuse consent to the release of the records. In the 'Consent Form' in the file of papers before me a box has been ticked which is opposite the option 'There are parts of my notes, which I do not wish to release to the Appeal Tribunal. I will discuss this with my doctor'. The 'Consent Form' is signed and dated twice by the appellant, on 3 May 2007 and 19 June 2007. The latter date is, of course, the date of the adjourned oral hearing when the issue of consent to the release of GP records was discussed at length.
17. There is additional correspondence on the file relating to telephone conversations between TAS and the appellant and TAS and her representative.
18. A further appeal tribunal hearing was arranged for 18 September 2007. What occurred on 18 September 2007 will be discussed and analysed in greater detail below. For the moment, it is sufficient to note that the ROPs for the hearing record that the appeal tribunal had before it, as documentation, the appeal submission, what are described as 'previous Records of Proceedings' and a letter dated 18 September 2007 from the appellant. The ROPs do not record that the appeal tribunal had before it the GP records, or any part of those records, relating to the appellant.
19. On the file of papers before me, there is a copy of a letter, dated 18 September 2007, and headed 'HIAT 18/9/07'. In the letter, there is a request for the appeal tribunal hearing, set for 18 September 2007 to be adjourned as her 'Social Worker is unable to attend'. I am assuming that 'HIAT' stands for 'handed in at tribunal'.
20. The appeal tribunal hearing went ahead on 18 September 2007. The ROPs notes that the appellant was not present. The Department was represented. The legally qualified panel member (LQPM) of the appeal tribunal noted receipt of the letter dated 18 September 2007 seeking an adjournment. The ROPs note that the appeal tribunal considered all of the relevant documentation but:

'… decided to proceed with the appeal. This appeal had previously been adjourned on 2 occasions (3.5.2007 and 19.6.2007) ….'

21. The appeal tribunal disallowed the appeal, and confirmed the decision dated 20 September 2006.
22. On 21 November 2007, a letter was received in TAS in which a request is made to have the decision of the appeal tribunal set aside. The basis of the application was stated to be that the appellant did not have representation; that she was unaware that she could attend the appeal tribunal hearing without representation; that she did attend on the day of the appeal tribunal hearing but did not know that she could leave evidence relevant to her appeal without that being done by a representative; and that she had been disadvantaged as a result.
23. On 12 December 2007, the application to have the decision of the appeal tribunal set aside was refused by the LQPM.
24. On 17 January 2008, a request for a statement of reasons (SORs) for the appeal tribunal's decision was received in TAS.
25. On the file of papers which is before me, there is a letter from TAS, dated 5 March 2008, which indicates that the SORs were issued to the appellant on that date.
26. On the file there is a record of a telephone conversation between an officer in TAS and the appellant concerning the sending out of the SORs.
27. On 16 July 2008, a further letter was received in TAS, from the appellant, in which a request is made for the 'case to be re-considered'.
28. On 18 July 2008, a Form 'AT10' was placed before the LQPM, relating to the letter dated 16 July 2008. A further direction was issued by the LQPM, seeking clarification as to the appellant's intentions and reasons why she had delayed contacting TAS.
29. In response a letter was received from the appellant in which she indicated that she wished to appeal to the Commissioner. She gave further details of actions which she states took place on the day of the hearing, and outlined reasons why her contact with TAS was late.
30. Although I cannot be certain about this, the letter referred to in the previous paragraph appears to have been treated as an application for leave to appeal to the Social Security Commissioner.
31. On 15 August 2008, the application for leave to appeal was refused by the LQPM.
32. On the file of papers before me, there is a memorandum, dated 27 September 2008, from the LQPM setting out various matters. The memorandum appears to be unsolicited, in that it was not drafted in response to a specific request. The significance of this memorandum will be explored in more detail below.

Proceedings before the Social Security Commissioner

33. On 18 September 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. In the application, the appellant submits that the appeal tribunal erred in law in that:

(i) the appeal tribunal considered medical evidence obtained without the consent of the appellant; and

(ii) the appellant had attended the appeal tribunal venue on the day of the oral hearing and had handed in a letter to the LQPM of the appeal tribunal. The letter was seeking a postponement of the appeal on the basis that the appellant's representative was unable to attend. The appellant had not been informed by the LQPM that she did not have to remain present in order that a decision on the postponement application could be made.

34. On 5 November 2008, I directed that further information and documentation be obtained from TAS, which was subsequently supplied. The significance of that additional information and documentation will be discussed in greater detail below.
35. On 20 November 2008, I accepted the application for special reasons.
36. On 8 January 2009 observations were sought from Decision Making Services (DMS) and these were received on 18 February 2009. DMS opposed the application.
37. Observations were shared with the appellant on 18 February 2009.
38. On 13 March 2009, a further submission was received from the appellant.
39. On 17 June 2009, I directed the production of a statement from the Head of Administration of TAS relating to the procedures within TAS relating to the obtaining of consent for the release of GP records in appeals relating to DLA; the procedures for obtaining those medical records from an individual GP; the procedures for the vetting of those medical records on the day of the appeal tribunal hearing; and the procedures for the handling of those medical records on the day of the appeal tribunal hearing.
40. On 3 July 2009, a reply was received from the Head of Administration of TAS. The significance of that reply will be explored in more detail below.

Errors of law

41. 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.
42. 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 instant case

(i) General Practitioner records

43. As I noted in C15/08/09 (DLA), at paragraph 80:

'My understanding is that in appeals involving DLA in Northern Ireland, there is a procedure which results in the GP records relating to the appellant being made available to the appeal tribunal in the majority of cases. The procedure is consent based and relies on the agreement of both the appellant and the GP to the release of the records for consideration by the parties to the proceedings and the appeal tribunal. The withholding of consent by either the appellant or the GP will mean that the records will not be released. Of course, GP records may be made available in appeals relating to other social security benefits, although such availability is not routine.'

44. To supplement my understanding of the practice and procedure which results in GP records being made available in the majority of appeals relating to Disability Living Allowance, I directed the production of a statement from the Head of Administration of TAS on the issue. My direction was that the statement should not address how specific procedures were applied in the instant case, but should deal with the following, in general terms:

(i) the procedures for obtaining the consent of the appellant to the release of GP records;

(ii) once such consent has been obtained, the procedures for obtaining the consent of the GP for the release of the records;

(iii) the system for the forwarding of the records to TAS, and their retention pending the appeal tribunal hearing;

(iv) The procedures for the exclusion of a medically qualified panel member (MQPM) from the hearing of an individual appeal where that MQPM is, or has been, the GP of the appellant, or otherwise has a conflict of interest in the appeal;

(v) the procedures for the vetting of the records on the day of the hearing of the appeal for the purposes of determining whether or not they contain medical evidence which could be deemed to be harmful;

(vi) the procedures for the vetting of the medical records, as in (v) above, by another MQPM, in advance of a hearing session, for example, where the records for a pm session are vetted by the MQPM from the morning session;

(vii) the procedures for the exclusion of a MQPM from the vetting process at (v) and (vi) above, where that MQPM is or has been the GP of the appellant, or otherwise has a conflict of interest in the appeal;

(viii) the procedures for the release, for the purpose of viewing, of the GP records on the day of the hearing, to the parties to the proceedings, and representatives of those parties;

(ix) the procedures for ensuring that the medical records are not viewed on the day of the hearing by any individual who does not have the right to view them.

45. In response, the Head of Administration stated the following:

"i. When acknowledging receipt of a Disability Living Allowance appeal, a DAT 2 consent form is issued along with the Reg2 (re oral hearing) and submission papers. The DAT2 form gives the appellant the choice of frill or partial release of their GP records or to refuse consent as they feel appropriate. If no response is received to the initial DAT2 form, one reminder will be issued to the appellant before the case passes for listing.

ii. When the appeal is being convened (listed for hearing on a specific date) a letter (AT16DAT'd) is issued to the relevant GP advising that partial or full consent has been given and asking for the records to be sent to The Appeals Service, a copy of the completed consent form is enclosed with the request. This letter advises the GP that the release of the notes or records is entirely at the GP's discretion.

iii. The Appeals Service provides the surgery with a first class reply label for forwarding the medical records. When they are received in The Appeals Service they are recorded on two separate systems to note their receipt and then kept in a locked cabinet and only removed when the Clerk to the Appeal Tribunal is attending the hearing.

iv. When the appeal is received in The Appeals Service, the submission is vetted to establish if the GP listed in the papers is one of the Medically Qualified Panel Members (MQPM) involved in appeal tribunals or if the surgery which the appellant attends has a GP listed who acts as a MQPM and if this is the case then the file is marked to bar this particular GP from being involved with this case. In addition when the appeal papers are sent out to members they are expected to check the papers and alert The Appeals Service if there is any reason why they feel it would be inappropriate for them to sit on the Tribunal for this appeal. If it only becomes apparent at the hearing that the appellant is known to the MQPM, then it is for the Legally Qualified Member to decide how to proceed.

v. The MQPM will vet the GP records on the day of the hearing and decide if any evidence could be deemed harmful and if so refer this to the Legally Qualified Member to make a determination on harmful medical evidence and, if appropriate, who it should be withheld from.

vi. There are occasions where The Appeals Service ask a MQPM who is not due to hear the appeal to vet medical records i.e. where a party wishes to inspect the records prior to the hearing date or where for expediency a MQPM in a morning session vets the records for the afternoon session. The MQPM involved in the actual appeal will still examine these records to assist in the decision making process but not for identifying potentially harmful medical evidence.

vii. If the MQPM is not already barred from the appeal as outlined at (iv) above then it would be for the member to alert the Clerk to the Appeal Tribunal if there is any reason why they should not vet the records.

viii. The perusal of GP records, by the parties to the proceedings and/or representatives of those parties, is strictly supervised by the Clerk to the Appeal Tribunal who will ensure that the person viewing has proper authority to do so and will sit with them throughout the viewing to ensure no records are removed or photocopied or tampered with in any way.

ix. The Legally Qualified Member and the Clerk to the Appeal Tribunal will ensure that the GP records are not viewed by anyone who is not a party to the proceedings or does not have written authority to do so. For example, if a husband attends a hearing on behalf of his wife then the records will not be made available to him unless he has written authority from his wife that she wishes him to have access to her GP records."

46. How were these practices and procedures implemented in the present case?
47. In the instant case, and as was noted above, there is no indication in the ROPs for the substantive appeal tribunal hearing which took place on 18 September 2007, that the appeal tribunal had access to the appellant's GP records, in full or in part. It is usual for the ROPs to be so endorsed by the LQPM, where there has been such access.
48. In the SORs for the appeal tribunal's decision, there is an indication that the appeal tribunal did have such access. In paragraphs 2 and 3 of the numbered reasons for the decision, there is reference to 'her medical notes and records'.
49. To clarify whether the appeal tribunal did have such access, I sought production of any Form 'Per1' which had been completed on the day of the appeal tribunal hearing. As will be noted in more detail below Form 'Per1' is utilised to record the outcome of the 'vetting' process referred to in points (v) to (vii) of the statement from the Head of Administration. Such a form would only be completed where the GP records had been available to the appeal tribunal. A completed Form Per1 was made available to me, which confirmed that the appeal tribunal had access to a Form AT16, GP 'other notes and print-outs'.
50. Points (i) to (ii) in the statement provided by the Head of Administration relate to the provision of consent to the release of the GP records, both by the appellant and by the GP. In the instant case, the issue of the appellant's consent to the release of her full GP records was, at a minimum, problematic.
51. As was noted above, at the adjourned oral hearing on 19 June 2007, the appeal considered, in some detail, the issue of the availability of the appellant's GP records. The following was recorded in the ROPs in relation to this issue:

'Her medical notes and records have not been received. She thought they would be here and told the General Practitioner to release them. She was referred to Form AT16 wherein General Practitioner states he is unwilling to release the notes "after discussion with patient". She accepts she did speak to her General Practitioner about this and does wish to have some documents withheld. Tribunal would like to see her medical notes and records. She will discuss the matter with her General Practitioner. (Some documents will be withheld). We viewed DAT2 consent form dated 03.05.07. Appellant countersigned the form with today's date in the presence of the Clerk.'

52. As was also noted above, in the file of papers which has been made available to me, there is a copy of a letter which was sent to the applicant on 3 May 2007. The letter is a standard form letter from TAS to appellants with forthcoming appeals relating to DLA, and is given the notation 'DAT2 Consent'. On the actual 'DAT2 Consent' letter dated 3 May 2007, it is noted that the appellant's General Practitioner is 'Dr Do …'.
53. Accompanying the DAT2 Consent letter is a further standard form from TAS headed 'Consent Form'. Once again, this form is a standard one which is forwarded to appellants with forthcoming appeals relating to DLA. In the 'Consent Form' in the file of papers before me, a box has been ticked which is opposite the option 'There are parts of my notes which I do not wish to release to the Appeal Tribunal. I will discuss this with my doctor. The 'Consent Form' is signed and dated twice by the appellant, on 3 May 2007 and 19 June 2007. The latter date is, of course, the date of the adjourned oral hearing when the issue of consent to the release of GP records was discussed at length.
54. It is clear, therefore, that the appellant did not wish for her complete medical records to be made available to the appeal tribunal, and there were parts of them which she did not wish to have released. She wished to discuss the matter of the release of the medical records with her own GP. The relevant 'Consent Form' is endorsed to that effect, and on two occasions.
55. In my view, any subsequent appeal tribunal would have to be satisfied that the relevant and significant limitation on the consent had been complied with. The appeal tribunal would have to be clear that the GP records which were before it had cleared the consent limitation placed on them by the appellant.
56. In the instant case, there is no indication that the appeal tribunal had addressed, or rather re-addressed the issue of the appellant's consent to the release of her GP records, for perusal by the appeal tribunal. I say re-addressed as the composition of the appeal tribunal at the substantive appeal tribunal hearing, on 18 September 2007, was the same as that on the date of the adjourned appeal tribunal hearing on 19 June 2007. At that latter adjourned hearing, the issue of the limited consent was raised, and re-emphasised by the appellant. Accordingly, the appeal tribunal was alert to the issue.
57. As was noted above, the ROPs for the substantive appeal tribunal hearing which took place on 18 September 2007 makes no reference to the availability of the appellant's GP records at all. Further, there is no indication that the appeal tribunal assured itself that the GP records which were before it satisfied the consent limitation placed on the release of those records by the appellant. I am satisfied that the failure of the appeal tribunal to address the issue of the consent to the release of the GP records amounts to a 'procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings' and is, therefore, an error of law.
58. There is, additionally, a second procedural irregularity with respect to the management of the relevant GP records in this case.
59. Points (v) to (vii) in the statement from the Head of Administration relate to the vetting of GP records on the day of the appeal tribunal hearing. As is noted in point (v) the purpose of the vetting is to determine whether there exists within the GP records any evidence which could be deemed to be harmful, and to assist the LQPM to decide whether such evidence should be withheld from the appellant, under regulation 42 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.
60. As is noted at (v) and (vi) above, the vetting of the medical records is usually undertaken by the MQPM who is part of the appeal tribunal which will hear and determine the appeal to which the GP records relate. In some instances, however, the clerk to the Appeals Service may ask another MQPM to view the records. One such instance might be where, for expediency, a MQPM in a morning session is asked to vet the records for the afternoon session.
61. As is noted at (iv) above, where an appellant's GP, or where another doctor within the appellant's GP's surgery is an MQPM with TAS, then the relevant administrative file is marked so as to 'bar' that MQPM from serving on the appeal tribunal which will hear and determine the appeal.
62. As is noted at (vii) above, where an MQPM is not already barred from hearing an individual appeal, then that member should alert the clerk to the appeal tribunal if there is any reason why that member should not peruse the GP records as part of the vetting process.
63. Finally, when the GP record vetting process has been completed, the MQPM, and LQPM where relevant, will complete appropriate sections of a TAS form 'Per1', which records the outcome of the vetting process.
64. As was noted above, I sought production of any Form 'Per1' which had been completed on the day of the appeal tribunal hearing. The completed Form Per1 which was made available to me is annotated at the bottom to indicate that the relevant GP records were 'vetted by Dr Do ... prior to hearing' and 'not vetted by Dr De ..., appellant did not attend'.
65. I sought further clarification concerning the completion of the Form 'Per1' from TAS, and the precise identity of Dr Do .... I did so as I had noted that in the 'DAT2 Consent' letter dated 3 May 2007, it is noted that the appellant's GP is 'Dr Do ...'. In e-mail correspondence dated 18 March 2009, TAS confirmed that the appellant's appeal had been listed for oral hearing on the afternoon of 18 September 2007. The relevant GP records had been vetted by Dr Do ... who had served as the MQPM during an appeal tribunal session during a morning session on 18 September 2007. Finally, and more significantly, the Dr Do ... who had vetted the GP records was the appellant's GP.
66. Point (vii) in the statement from the Head of Administration indicates that an MQPM who is not already barred from hearing an individual appeal, then that member should alert the clerk to the appeal tribunal if there is any reason why that member should not peruse the GP records as part of the vetting process. There is no indication in the present case, that the issue of whether it was appropriate for Dr Do ..., the appellant's GP, should vet her medical records for the purposes of an upcoming appeal tribunal hearing, was addressed.
67. More significantly, I regard it as highly unsatisfactory that an individual GP, already involved in the routine medical care and treatment of an individual, should play any part in judicial proceedings relating to the determination of the rights of that individual. I would, accordingly, recommend that rather than placing the onus on an individual MQPM to alert the clerk to TAS that there is a reason why he or she should not vet the medical records of a patient of his or hers, that TAS should implement an administrative policy, backed up by appropriate procedures to ensure that the MQPM does not become involved in the vetting process. In the instant case, there was no reason why the MQPM involved with the actual appeal, Dr De ..., should not have vetted the GP records, when, according to point (vi) of the statement from the Head of Administration, he or she would have considered the records in any event.

A further procedural aspect – the handling of the appeal proceedings

68. As was noted above, in the application for leave to appeal to the Social Security Commissioner, one of the grounds on which the appellant submits that the appeal tribunal erred in law was that the appellant had attended the appeal tribunal venue on the day of the oral hearing and had handed in a letter to the LQPM of the appeal tribunal. The appellant submitted that the LQPM knew who she was as she had she had introduced herself to him. The relevant letter was seeking a postponement of the appeal on the basis that the appellant's representative was unable to attend. The appellant submitted that she had not been informed by the LQPM that she did not have to remain present in order that a decision on the postponement application could be made.
69. On the file of papers before me, there is a memorandum, dated 27 September 2008, from the LQPM. The memorandum appears to be unsolicited, in that it was not drafted in response to a specific request. The LQPM states that he wishes to address various issues raised by the appellant in her application for leave to appeal. More specifically, the LQPM states:

'… On the day in question the appellant's appeal was listed for hearing during an afternoon session at the Central Library, Derry. I had been chairing a morning session at the same venue. I was alone in the hearing room and was engaged in some paperwork. I left the room at approximately 12.30 p.m. A lady approached me just outside the hearing room and handed me a sealed envelope. She asked me to give it to the Clerk. She spoke my name and may have identified herself. I did not engage in any conversation with her as it would have been wholly inappropriate to do so. She turned and left and I returned to the hearing room. The Clerk had gone to lunch. I viewed the letter. It was dated 18 9 07 and was from the appellant herself….'

70. The memorandum goes on to refute other aspects of the grounds cited by the appellant in the application for leave to appeal to the Social Security Commissioner.
71. Firstly, it is difficult to understand why the LQPM, on being approached by an individual outside of the appeal tribunal hearing room did not give an indication to that individual that all matters relating to individual appeals should be addressed to the clerk to the appeal tribunal. While he is correct to indicate that it is not appropriate for a member of an appeal tribunal to engage in a party to the proceedings in conversation outside of the formal appeal tribunal hearing, in the circumstances described by the LQPM in his memorandum, I do not see why he could not have given a polite but straightforward indication to the individual before him that she should come back and speak to the clerk to the appeal tribunal.
72. Secondly, and much more significantly, it is difficult to understand why the interaction which the LQPM had with the appellant was not recorded in the ROPs for the appeal tribunal hearing. The ROPs does record that the appeal tribunal had access to a letter from the appellant, dated 18 September 2007. It does not record the circumstances under which that letter came to be before the appeal tribunal. There is no indication that the other members of the appeal tribunal were aware that the appellant had been in attendance at the appeal tribunal venue. Additionally, and absent the difference of opinion between the LQPM and the appellant as to what was said and heard during the interaction, there is no indication whether the interaction between the LQPM and the appellant had any part to play in the appeal tribunal's decision to continue with the appeal tribunal in the absence of the appellant.
73. It cannot be emphasised enough that any interaction, intervention, or action which relates to an appeal tribunal session or oral hearing of an individual appeal, should be accurately recorded in the ROPs for the appeal tribunal hearing, or otherwise noted by the clerk to the appeal tribunal, in a session report. In the present case, a note of the relevant interaction in the ROPs may have avoided the detailed submissions relating to this issue which the appellant made in her application for leave to appeal.
74. Thirdly, it is not clear why the LQPM prepared and forwarded the memorandum relating to the submissions made by the appellant in her application for leave to appeal. The determination of an application for leave to appeal to the Social Security Commissioner involves consideration as to whether the decision of the appeal tribunal was or was not in error of law and, if it was, its appropriate disposal. It may also involve a determination that the application is to be rejected. The LQPM had already made a determination that the application for leave to appeal should be refused. Additionally he had made a determination to refuse an application to set aside the decision of the appeal tribunal, that application having being made on similar grounds to the application for leave to appeal to the Social Security Commissioner.

Disposal

75. The decision of the appeal tribunal dated 18 September 2007 is in error of law.
76. 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.
77. 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. This is because there is detailed evidence relevant to the issues arising in the appeal, including medical evidence, to which I have not had access, and there may be further findings of fact which require to be made. Further I do not consider it expedient to make such findings, at this stage of the proceedings. Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.
78. It is essential that the appellant, in advance of the next oral hearing of the appeal tribunal clarifies with her GP whether or not she consents to the release to all, part, or none of her GP records. Having undertaken that clarification with her GP, the appellant must give an equally clear indication to TAS whether she wishes for any part of her GP records to be before the appeal tribunal.
79. It is essential that the appellant, if she wishes to have representation at the next oral hearing of her appeal, organises that representation in sufficient time for the notified time and date of the oral hearing, and gives a clear indication to TAS of any nominated representative.
80. The decision under appeal is a decision of the Department, dated 20 September 2006, which decided that, on an original claim, the appellant should not have an entitlement to DLA from and including 16 June 2006.
81. It is not clear whether there have been any subsequent claims to DLA, and the outcome of those claims. The Department is directed to give further details of any further claims to DLA in advance of the next oral hearing of the appeal.
82. The appeal tribunal is directed to take any evidence of subsequent claims to DLA into account in line with the principles set out in C20/04-05(DLA).
83. It will be for both parties to the proceedings to make submissions, and adduce evidence in support of those submissions, on all of the issues relevant to the appeal.
84. It will be for the appeal tribunal to consider the submissions made by the parties to the proceedings on these issues, and any evidence adduced in support of them, and then to make its determination, in light of all that is before it.

(signed) K Mullan

Commissioner

4 September 2009