Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2009] NISSCSC C37_08_09(DLA) (02 July 2009)

Decision No: C37/08-09(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 29 April 2008
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. Having considered the circumstances of the case I am satisfied that the appeal can properly be determined without a hearing.
2. The decision of the appeal tribunal dated 29 April 2008 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 there is evidence, including medical evidence, which was before the appeal tribunal but which is not before me. Additionally, 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 30 November 2006 a decision-maker of the Department decided that there were grounds to supersede an earlier decision of the Department dated 22 February 2002.
7. Further, the decision-maker decided that the appellant was not entitled to DLA from and including 30 November 2006.
8. Following receipt of a request to that effect, the decision dated 30 November 2006 was reconsidered on 1 May 2007 but was not changed.
9. An appeal against the decision dated 30 November 2006 was received in the Department on 3 May 2007.
10. The appeal was first listed for oral hearing on 16 January 2008. The appellant was not present. The appeal tribunal considered undated correspondence from the appellant in which she referred to the unavailability of her general practitioner (GP) records. Based on this correspondence, the appeal was adjourned in order for the GP records to be before the appeal tribunal.
11. The appeal was re-listed for oral hearing on 1 April 2008. Once again the appeal was adjourned. On this occasion, the appellant was not present but was represented by her son and a friend. While the GP records were available, neither the son nor the friend had the necessary authority to view the records. Accordingly, the appeal was adjourned for the necessary authority to be obtained.
12. The appeal was re-listed for oral hearing on 29 April 2008. On 21 April 2008, a form completed and signed by the appellant was received in The Appeals Service (TAS). This was a standard template form in which the appellant is asked to indicate her intentions with respect to attendance at the listed oral hearing of the appeal. The appellant ticked Box 2a which states 'I am unable to come to the hearing and would like another date arranged because …' The appellant added 'I would like to get some advice as to what to do regarding my appeal.'
13. The completed form was put before a legally qualified panel member (LQPM) as an application for a postponement of the oral hearing of the appeal. On 21 April 2008, the LQPM determined that:

'The appeal was received on 30.05.07. This is the third time of listing. I cannot accept that it is reasonable for her now to request a postponement so that she can get some advice almost 11 months after she appealed. Postponement refused.'

14. I should say at this stage that the decision made by the LQPM on the application for a postponement was entirely proper and cannot be faulted.
15. On the basis of the refusal of the application for postponement, the appeal remained listed for oral hearing on 29 April 2008. The appellant did not attend the oral hearing and was not represented. The Department was also not represented. The record of proceedings for the appeal tribunal hearing records:

'Clerk to the Tribunal

Mrs Keenan returned the AT6 form on 21 April 2008. She wanted another date for the appeal hearing stating that she needed to get advice about her appeal.

A Chairman on 21 April 2008 refused this request on the basis that it had been 11 months since she had lodged her appeal so that she had sufficient opportunity to consult and seek advice.

Notice of this refusal was sent to the [claimant] on 21 April. She did not reply and has not attended. The hearing was listed for 10.30 am.

The Tribunal decided to proceed at 10.45 am.

The Tribunal therefore considered the appeal submission and appendices (including [the claimant's] appeal letter received in May 2007 and several subsequent letters), the medical records and the papers relating to the DLA awards from 2001.'

16. The appeal tribunal went on to disallow the appeal and to confirm the decision of the Department dated 30 November 2006
17. On 4 September 2008, an application for leave to appeal to the Social Security Commissioner was received in TAS.
18. On 15 September 2008, the application was refused by the LQPM.

Proceedings before the Social Security Commissioner

19. On 20 October 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.
20. On 25 November 2008 observations were sought from Decision Making Services (DMS) and these were received on 17 December 2008. DMS opposed the application. An addendum to the observations was received on 16 January 2009.
21. Observations were shared with the appellant on 19 January 2009. On 24 February 2009 a further submission in reply to the observations was received from the appellant.
22. On 27 March 2009, I accepted the late application for special reasons. On that date, I also granted leave to appeal. In granting leave to appeal, I stated, as a reason, that an arguable issue arose as to whether the appeal tribunal gave adequate consideration to an adjournment of the appeal.
23. Further submissions were received from the appellant on 23 April 2009 and from the Department on 18 May 2009.

Errors of law

24. 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.
25. 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

26. Regulation 51 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, provides that:

Postponement and adjournment

"51. (1) Where a person to whom notice of an oral hearing is given wishes to request a postponement of that hearing, he shall do so in writing to the clerk to the appeal tribunal stating his reasons for the request, and the clerk to the appeal tribunal may grant or refuse the request as he thinks fit or may pass the request to a legally qualified panel member who may grant or refuse the request as he thinks fit.

(2) Where the clerk to the appeal tribunal or, as the case may be, the legally qualified panel member refuses a request to postpone the hearing he shall—

(a) notify in writing the person making the request of the refusal; and

(b) place before the appeal tribunal at the hearing both the request for the postponement and notification of its refusal.

(3) The legally qualified panel member or the clerk to the appeal tribunal may of his own motion at any time before the beginning of the hearing postpone the hearing.

(4) An oral hearing may be adjourned by the appeal tribunal at any time on the application of any party to the proceedings or of its own motion. …"

27. Regulation 51 clearly sets out a difference between postponement and adjournment and it is generally accepted that postponement is applicable before the commencement of a hearing while adjournment is the relevant process after a hearing has begun.
28. In CDLA/3680/97, consideration was given to the relationship between postponement and adjournment by a Commissioner in Great Britain. In that case, there had also been an unsuccessful application for a postponement of a listed oral hearing of an appeal. The appellant neither appeared nor was represented at the subsequent oral hearing of the appeal. The appeal tribunal proceeded in the absence of the appellant. Commissioner Rowland stated the following, at paragraphs 3 to 5:

'3. I appreciate that chairmen and tribunals are under pressure to resist applications for postponements and adjournments because they have financial implications for the Independent Tribunal Service. No doubt there are many such applications that can properly be refused, but the overriding consideration must be the requirements of justice…

4. When the case came before the tribunal, they had to consider whether they should determine the case before them in the absence of the claimant. That is an issue that always arises when a claimant does not appear. It will seldom detain a tribunal for long if the claimant has not asked for a postponement and, indeed, I would not usually regard a tribunal as having erred in law if no mention is made in their decision of any consideration of adjourning because there will not usually be the slightest reason why a tribunal should adjourn a case merely because a claimant has failed to appear. However, different considerations arise where a request for a postponement has been made. The fact that it may have been considered and refused by a chairman does not relieve the tribunal of the responsibility of considering whether to adjourn the proceedings. In effect, a claimant who has failed to attend a hearing following a refusal of a postponement must be taken to have renewed that application to the tribunal. Of course, the fact that a postponement has already been refused is a material fact the tribunal can take into account when considering whether to adjourn the case, as can any comment made by the chairman when refusing the postponement which should have prompted the claimant to attend, but a chairman's refusal will not always be conclusive, particularly if the claimant has had little time to act upon it. The tribunal is faced with the new fact that the claimant has actually failed to attend, whatever the hopes of the chairman might have been, and they are likely to have a greater grasp of the background to the case than a chairman considering the question of a postponement on an interlocutory application. Furthermore, if they proceed, they may have to consider what inferences to draw from the failure of the claimant to attend.

5. Therefore, where there has been an unsuccessful application for a postponement, the question whether the case should be adjourned must be considered afresh by the tribunal …'

29. The decision in CDLA/3680/97 was considered by Commissioner Brown in C5/01-02(IB). At paragraph 5, Commissioner Brown held that CDLA/3680/97 was authority for the principle that:

'…non-attendance following refusal of a postponement application must be taken as a renewal of that application.'

30. In the present case there was an unsuccessful application for a postponement of the oral hearing prior to the listed date. On the listed date, the appellant did not attend the oral hearing and was not represented. On the basis of the principles in CDLA/3680/97, as confirmed in C5/01-02(IB), the non-attendance must have been taken as a renewal of that application, and the prior consideration of the postponement application by the LQPM did not relieve the tribunal of the responsibility of considering whether to adjourn the proceedings. The appeal tribunal was under a duty to consider afresh an application for an adjournment.
31. Did the appeal tribunal in the present case consider an application for an adjournment? I have already set out above what was contained in the record of proceedings. The first four paragraphs are a factual account of the background to the earlier postponement application and its determination by the LQPM. The section is headed 'Clerk to the Tribunal', and, although I cannot be certain, I am assuming that what is recorded in the first four paragraphs was narrated to the appeal by the clerk. Additionally, and, again, although I cannot be certain, the appeal tribunal, or at least its legally qualified chairman may have considered the contents of the TAS administrative file to confirm what had been narrated.
32. Paragraph 5 contains a decision. The decision is recorded as 'The Tribunal decided to proceed at 10.45 am'. I have to be certain that in arriving at the decision, the appeal tribunal considered, in the absence of the appellant, and following an earlier unsuccessful application for a postponement, whether to adjourn the appeal tribunal hearing. I am not satisfied that it did. I am of the view that the appeal tribunal formed the view that it was bound by the earlier decision of the LQPM on the application for a postponement. Of course, and as Commissioner Rowland in CDLA/3680/1997, confirms, the 'fact that a postponement has already been refused is a material fact the tribunal can take into account when considering whether to adjourn the case, as can any comment made by the chairman when refusing the postponement which should have prompted the claimant to attend.' The appeal tribunal must consider the matter afresh, however, and, more importantly, must give an indication in the record of proceedings for the appeal tribunal hearing or the statement of reasons for the appeal tribunal's decision, that it has considered the matter and must set out its reasons for or for not adjourning. That task is not an onerous one but is one which must be performed.
33. In the present case there is an indication that the appeal tribunal was aware of the earlier unsuccessful application for an adjournment. There is no clear indication, however, that it considered a fresh application for an adjournment, and set out its conclusions with respect to that application.
34. I am satisfied that the failure to indicate that it had considered an application for an adjournment, and to state its conclusions on that application, amounted to an irregularity capable of making a material difference to the outcome or the fairness of proceedings.

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

35. 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

36. The decision of the appeal tribunal dated 29 April 2008 is in error of law. The error of law identified will be explained in more detail below.
37. 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.
38. 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 there is evidence, including medical evidence, which was before the appeal tribunal but which is not before me. Additionally, 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.
39. I would ask the appellant to note the following. The decision under appeal in this case is a decision of the Department dated 30 November 2006, as reconsidered on 1 May 2007. The appeal was lodged on 30 May 2007. It is not in the interests of the appellant for the hearing and the determination of the appeal to be delayed further. On receipt of this decision, the appellant will learn that her appeal has been referred to a differently constituted appeal tribunal for re-determination. If she wishes to have representation before that appeal tribunal she must be proactive in obtaining such representation, in informing TAS of the name and correct postal address for that representative, and in ensuring that both she and her representative are prepared for the oral hearing of the appeal, when next listed.
40. I am unsure as to whether there have been subsequent claims to DLA, since the date of the decision under appeal. If there have, then full details of these should be made available to the newly constituted appeal tribunal. 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).

(Signed): K Mullan

COMMISSIONER

2 July 2009