Northern Ireland - Social Security and Child Support Commissioners' Decisions

KEN-v-Department for Social Development (DLA) [2012] NICom 344

 

Decision No:  C30/12-13(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 26 January 2012

 

 

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.  I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.

 

2.     The decision of the appeal tribunal dated 26 January 2012 is in error of law.  The error of law identified will be explained in more detail below.  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.

 

3.     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.  An appeal tribunal which has a medically qualified panel member is best placed to assess medical evidence and address medical issues arising in an appeal.  Further, there may be further findings of fact which require to be made and 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.

 

4.     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.

 

5.     It is imperative that the claimant’s notes that while the decision of the appeal tribunal has been set aside, the issue of the claimant’s 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.

 

6.     It is important to note the following.  This appeal turns entirely on its own facts.  The issue arising in this appeal is a narrow one and my decision must be seen in that context.  This decision must not be regarded as a precedent on the application of regulation 40(1) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, and, more particularly, on the withdrawal of an appeal by an authorised representative.

 

7.     After reading this decision, the claimant’s appointee should have a detailed knowledge of the procedural rules relating to the conduct of an oral hearing of an appeal.  The effect of my decision is that the decision of the Department dated 2 August 2011 which decided that there were no grounds to supersede the decision of the appeal tribunal dated 15 April 2011, remains extant.  The further effect of my decision is that a differently constituted appeal tribunal will hear and determine an appeal against the decision dated 2 August 2011.  It is entirely a matter for the appointee whether she wishes to avail of representation in connection with the remitted appeal.  I would encourage her to seek such representation.

 

         Background

 

8.     On 15 April 2011 an appeal tribunal decided that the claimant satisfied the conditions of entitlement to the lower rate of the mobility component of DLA from 18 September 2010 to 17 September 2013.  On 19 April 2011 a telephone call was received in the Department from the claimant’s appointee which was treated as an application for a supersession of the decision of the appeal tribunal dated 15 April 2011.  On 16 May 2011 a completed ‘DLA 434’ form was received in the Department from the claimant’s appointee.  A factual report was completed by the claimant’s general practitioner (GP) on 22 July 2011.  On 2 August 2011 a decision-maker of the Department decided that there were no grounds to supersede the decision of the appeal tribunal made on 15 April 2011. On 26 August 2011 a request for a reconsideration of the decision dated 2 August 2011 was received in the Department.  On 31 August 2011 the decision dated 2 August 2011 was reconsidered but was not changed.  On 16 September 2011 a letter of appeal was received in the Department.

 

9.     An oral hearing of the appeal took place on 26 January 2012.  The basis of the application for leave to appeal which is before me is that procedural irregularities took place at the oral hearing of the appeal which rendered the decision of the appeal tribunal as being in error of law.  The issue of whether such procedural irregularities did occur will be explored in more detail below.

 

10.   On 31 January 2012 a request for a copy of the record of proceedings (ROPs) for the appeal tribunal hearing was received in the Appeals Service (TAS).  On 15 March 2012 a copy of the ROPs was forwarded by a clerk to TAS to the claimant’s appointee.

 

         Proceedings before the Social Security Commissioner

 

11.   On 23 April 2012 an application for leave to appeal to the Social Security Commissioners was received in the Office of the Social Security Commissioners.  The application was on the standard Form OSSC1 and was accompanied by a number of other documents.  On 21 May 2012 the legal officer wrote to the clerk to TAS requesting clarification concerning standard practice in TAS with respect to the purported withdrawal of an appeal.  On 19 June 2012 a reply was received from the clerk to TAS.  On 20 June 2012 the claimant’s appointee was requested to provide clarification concerning a withdrawal form which she had indicated she had signed on the day of the oral hearing of the appeal.  On 26 June 2012 a reply was received from the appointee.  Also on 20 June 2012 the clerk to TAS was asked to provide clarification concerning certain aspects of the oral hearing which had taken place on 26 January 2012.  On 17 July 2012 the claimant’s appointee was provided with copies of the e-mail exchange with the clerk to TAS and was asked to provide her comments on these documents.  On 31 July 2012 a reply was received from the claimant’s appointee together with copy correspondence from her representative.

 

         Errors of law

 

12.   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.

 

13.   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.”

 

         What happened at the oral hearing of the appeal on 26 January 2012?

 

         The ROPs

 

14.   Within the file of papers which is before me there is a copy of the ROPs for the oral hearing which took place on 26 January 2012.  It is in the standard Form ‘AT3D’DAT’ utilisied for the making of a ROPs of an appeal where the social security benefit at issue is DLA.  The first page of the completed Form AT3D’DAT contains details of who is recorded as being present at the oral hearing of the appeal.  Opposite the entry ‘Appellant Present’ the answer ‘No’ is recorded.  The appellant’s representative is recorded as being ‘Cllr Paul Girvan’.  A presenting officer of the Department is recorded as being present and is named. Opposite the entry ‘Witnesses’ the name of the claimant’s appointee has been recorded.

 

15.   In the section headed ‘Documents Considered’ the following is recorded:

 

         ‘Appeal papers’

         ‘GP notes and records’

 

16.   In the main section of the ROPs the following is recorded:

 

         ‘GP notes and records re asthma from January 2011

         1.6.11           Cough for 3 weeks peak flow was quite good

         23.8.11        Seen re feet talon tightening and cleaning of toes and referred to Orthopaedics

         1.9.11           Cough for past 2 weeks

         11.10.11      Cough persistent since June – not short of breath and no wheeze

         19.10.11      Still cough despite antibiotics

         28.10.11      Annual review asthma nurse – asthma limiting activities but no disturbing sleep – day symptoms 1-2 per month

                              Peak flow readings fairly good

                              Physio 4 years ago for talon problems

                              Orthopaedic referral is recent and no recent mental health referral

                              No record of constipation or soiling from January 2010 to date

                              No mention of Raynaud’s since August 2010 which does not suggest significant condition

                              No record of self harm other than one record in 2009 of thoughts of self harm

                              December 2011 – referral to chest physician

                              Representative returned to room after decision re evidence or lack of it regarding deterioration at date of decision but rather post decision

                              Appellant withdrew appeal’

 

17.   In the file of papers which is before me is a copy of a form ‘ORAL/WITH’.  It is signed and dated by the legally qualified panel member (LQPM) of the appeal tribunal on 26 January 2012.  The completed form refers to the claimant by name and refers to no other person; that there was an appeal tribunal hearing in Cleaver House, Belfast on 26 January 2012; and, just above the LQPM’s signature, states:

 

‘I confirm that the above named withdrew the appeal orally at the above hearing’

 

         What the claimant’s appointee submits occurred at the oral hearing

 

18.   The application for leave to appeal to the Social Security Commissioner is based on a submission by the claimant’s appointee that the appeal tribunal did not observe the rules of natural justice.  More particularly, the appointee submitted that had the rules of natural justice been applied it would have permitted her, as the claimant’s appointee to:

 

         (i)      present his case on his behalf;

         (ii)     ensure his rights and interests were not adversely affected; and

         (iii)    a fair opportunity to answer his case.

 

19.   The appointee also submitted that the ROPs for the appeal tribunal hearing was ‘… too vague for anyone to interoperate [sic]’ and:

 

‘It also contains untruths. I f the Tribunal had used all the paperwork available to them e.g. appeal papers and not only as it would appear GP records many of the untruths they have made contained in this record of proceedings would have been explained throughout.  As if again they had given me the chance to appear in front of them I believe many of these issues could have been verified.’

 

20.   Accompanying the application for leave to appeal was a lengthy statement, as follows:

 

‘In order for clarification of this appeal it is necessary for me as (the claimant’s) appointee to state the following: -

 

On 26 January 2012 I was present with Mr Paul Girvan, MLA at Clever House [sic], Belfast waiting to attend a hearing in relation to my son’s Disability Living Allowance.  While sitting in the waiting room Mr Paul Girvan, MLA was approached by the Clark to the Tribunal who stated that the Tribunal wished to have preliminary talks with him.  He went into the Tribunal while I waited on being called upon to present my son’s case.

 

Mr Paul Girvan returned to the waiting area and stated to me various points which the Tribunal had raised with him.  They are as follows: -

 

1.         There was an issue about the dates not being correct.  I asked him to inform me which dates they were referring to, he could not elaborate on same and I could not understand where this would have arisen from as my son’s claims had been in relation to change of circumstances and the dates had to be relevant as it would not be possible to apply for a reconsideration under the fact that there had been a change of circumstances unless a change had occurred.

2.         He also stated that the Tribunal had stated to him, that he (the claimant) was on a further medication in relation to his asthma and that this would now place him onto a higher level on the scale used by Decision makers to identify asthma conditions and that the Tribunal had advised him to withdraw and to put in a new claim for his care needs which he would be entitled to due to his further medication.

3.         Mr Paul Girvan, MLA also informed me that the Tribunal had picked up that there was a possibility that my son may have aspergers and that they would advise again that the appeal should be withdrawn and to get a diagnoses for aspergers.

 

He also stated that they had advised that the appeal should be withdrawn as we were not going to get anywhere.  As it appeared to be a totally bias situation which denied (the claimant) his right to a fair hearing after what Mr Paul Girvan had informed me I could see to push on (the claimant’s) behalf would be pointless and felt that the matter would need to go to another authority for (the claimant) to obtain justice.  I reluctantly signed the withdrawal form.  Mr Paul Girvan, MLA returned to the room of the Tribunal and upon returning to me Mr Paul Girvan, MLA informed me that the legally qualified member of the Tribunal had informed him that it was a wise decision to have withdrawn.

 

Also at the end of this situation I was finding myself in as I was in the waiting room waiting on Mr Paul Girvan, MLA to return from the room the Tribunal was in and I could see that he was accompanied by the Clark to the Tribunal and a female.  I asked him who the female was and he replied that it was the representative from DLA branch.  This person was in with the Tribunal the whole time Mr Paul Girvan, MLA was with them and I believe that this would have been a very unfair situation as my son’s case was not supported by me during this time but that the Department obviously had the chance to support their case.

 

I would also like to point out the untruths in relation to my situation contained within the following documents from the Tribunal: -

 

1.         Page which I have marked A for reference.  (The claimant) was not present to have been able to withdraw the appeal orally.  The appeal was not withdrawn orally at the hearing.

2.         Record of Proceedings.  I was not a witness to anything which went on inside the room of the Tribunal as I was not invited in.  I was in attendance on the date of the Tribunal as my son’s appointee and I feel this point in itself shows how uninterested this Tribunal was in relation to this case.  I also did not receive any notes in relation to rights of appeal against this decision as they were not enclosed.

 

I would like to point out that I have no Statement of Reasons as I believed it would be sent with my request for a Record of Proceedings.”

 

21.   The page which the appointee wished to mark as ‘A for reference’ was the form ORAL/WITH’ referred to above.

 

22.   As was noted above, the legal officer sought clarification of the appointee’s statement that she had ‘… reluctantly signed the withdrawal form.’  The appointee’s reply was that she did not have a copy of the relevant form and did ‘… not know who the originator of the form was.’  As was also noted above, the clerk to TAS was requested to provide further clarification as to the procedures which should be adopted when an appeal is withdrawn at the oral hearing stage and to whether, in the instant case, the appointee did sign a form of withdrawal.  The response from the clerk to TAS was as follows:

 

‘… I would firstly like to paste an extract from our procedural guide on how to deal with withdrawal requests at the hearing.

 

Withdrawal at an oral hearing

An appellant/Rep can withdraw an appeal at any time during an oral hearing

OR

If, immediately before a hearing commences (i.e. in the waiting room)

an appellant/Rep state a wish to withdraw an appeal then they should be escorted to the hearing room so that the hearing may commence and the LQM can record the withdrawal on Form Oral/With

·                     The legal member will sign and date Form Oral/With

·                     Issue Form WITH 2d to any party not present at the hearing

·                     Update the TAS Database with the date on which the case has been withdrawn and record Code 2, Withdrawn, in the Clearance Type field

·                     Note the PA date, and PA the Tribunal File

 

The appellant indicated that she had signed a form to withdraw the appeal, however there is no record of this on the file.  Our normal procedure when a case has been withdrawn at the hearing stage is as highlighted above, the appellant/Appointee/Representative/Departmental Officer are brought to the Tribunal room where they state their wish to withdraw orally and the LQM will complete the ORAL/WITH form, both signing and dating this.  In this case this has been completed, which means that this case has been validly withdrawn.’

 

23.   In light of the submissions made by the appointee that she was not, at any stage, present in the appeal tribunal hearing room on 26 January 2012, the clerk to TAS was requested to clarify the position.  The reply from the clerk was as follows:

 

‘After checking the AT3D’DAT from 26/1/2012, it appears that (the appointee) was present in the tribunal room during the hearing. (The LQPM) notes her as withdrawing the appeal in his record of proceedings notes.’

 

24.   As was noted above, the appointee was given the opportunity to comment on the responses which had been made by the clerk to TAS.  The appointee, in correspondence dated 28 July 2012 and received on 31 July 2012, responded by stating that:

 

‘… I wish to state that the TAS is incorrect with their interpretation made in their email dated 9 July 2012. I did raise the untruths as recorded in the AT3D’Dat (Record of Proceedings) in my submission to the Commissioners.

 

I enclose for your information a letter from Alderman W Paul Girvan, MLA who has confirmed that I was not present at any time in the hearing. I hope this clarifies the matter?’

 

25.   Attached to the correspondence dated 28 July 2012 was a letter from Alderman Girvan which reads as follows:

 

‘… I wish to state that I represented the above named at his DLA Appeal.  I can confirm that (the claimant’s mother) (the appointee) attended on the day as a witness to the Tribunal, but was not present at any time in the hearing room, but remained in the waiting room.’

 

         Analysis

 

26.   In C28/08-09 (DLA), I said the following, at paragraph 73 of my decision:

 

‘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.’ 

 

27.   In the instant case, it is not clear from the ROPs precisely what occurred during the course of the oral hearing of the appeal.  At first glance, the completed first section of Form AT3D’DAT would suggest that the appointee, the appointee’s representative and the presenting officer were present in the appeal tribunal room during the course of the oral hearing.  They are all named as individuals within that section.  The substantive section of the ROPs records that the ‘… Representative returned to the room after decision re evidence …’  It is not clear from that entry whether the representative had been in and out of the room and what transpired during the course of the time when he was in the room.  Further the ROPs notes that the ‘… Appellant withdrew appeal’.  Again it is not clear how that outcome came about.

 

28.   It seems to me that the principles of accuracy and clarity in the completion of ROPs extends to the completion of other forms relevant to appeal tribunal proceedings.  In the instant case, and as was noted above, the LQPM completed, signed and dated form ‘ORAL/WITH’ on 26 January 2012.  That form was not completed in an accurate manner.  The form includes the name of the claimant and no-one else and the LQPM signs a declaration to the effect that ‘I confirm that the above named withdrew the appeal orally at the above hearing.

 

29.   I have no reason to doubt the appointee’s account of the movement in and out of the appeal tribunal room on the day of the oral hearing of the appeal.  Although I cannot be certain I suspect that what transpired was as follows.  The decision under appeal to the appeal tribunal was a decision of the Department dated 2 August 2011 which decided that there were no grounds to supersede a decision of an appeal tribunal dated 15 April 2011.  The request for a supersession of the decision dated 15 April 2011. The basis for the supersession, evident in a completed Form DLA 434, was submitted to be a change of circumstances, namely a deterioration in the claimant’s medical condition.

 

30.   The appeal tribunal, as is usual in appeal proceedings involving a Departmental decision relating to entitlement to DLA, had access to the claimant’s GP records.  The appeal tribunal was in a position to peruse the GP records in advance of the commencement of the oral hearing.  Having perused those GP records, the appeal tribunal decided that any evidence of a deterioration post-dated the decision under appeal.  Accordingly under the provisions of Article 13(8)(b) of the Social Security (Northern Ireland) Order 1998, as amended, which provides that in deciding an appeal, an appeal tribunal must not take into account any circumstances not obtaining at the time the decision appealed against was made, was precluded from taking into account any evidence of deterioration subsequent to 2 August 2011.

 

31.   The appeal tribunal decided to draw the matter of the evidence to the attention of the parties to the proceedings.  In respect of how this was achieved, I have no reason to doubt the account of the appointee that:

 

         (i)      the clerk to the appeal tribunal, at the request of the appeal tribunal, invited the appointee’s representative but not the appointee to go to the appeal tribunal room;

 

         (ii)     the representative went to the appeal tribunal room, returned and outlined what he had been informed of by the appeal tribunal;

 

         (iii)    the appointee eventually agreed to withdraw the appeal;

 

         (iv)    the representative returned to the appeal tribunal room and indicated withdrawal; and

 

         (v)     at stages (ii) and (iv) it was very likely that the Departmental representative was also in the appeal tribunal room.

 

32.   I am reminded that the clerk to TAS submitted that the completed form AT3D’DAT was proof that the appointee was physically present in the appeal tribunal room during the course of the oral hearing.  With respect to the clerk, I do not accept that the fact that the appointee’s name appears in the first section of the completed form AT3D’DAT means that she was present during the course of the oral hearing.  The first section of the form provides details of who attended the appeal tribunal venue.  It is usually completed in advance of the commencement of the oral hearing by the clerk to the appeal tribunal.

 

33.   Does any of this matter, however?

 

34.   Regulation 40(1) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, provides that:

 

‘40 (1) An appeal may be withdrawn by the appellant or an authorised representative of his or, as the case may be, a referral may be withdrawn by the Department either—

 

(a) at an oral hearing; or

(b) at any other time before the appeal or referral is determined, by giving notice in writing of the withdrawal to the clerk to the appeal tribunal.’

 

35.   Regulation 49(8) of the 1999 Regulations provides that:

 

‘A person who has the right to be heard at a hearing may be accompanied and may be represented by another person whether having professional qualifications or not and, for the purposes of the proceedings at the hearing, any such representative shall have all the rights and powers to which the person whom he represents is entitled.’

 

36.   I accept that Alderman Girvan was an authorised representative for the purposes of regulation 40.  Accordingly, it is arguable, and strongly arguable, that the appeal has been validly withdrawn.  Where an appeal is validly withdrawn then the appeal tribunal, and onward a Social Security Commissioner, have no jurisdiction to consider it – see the decision of the Court of Appeal for England and Wales in Rydqvist v Secretary of State for Work & Pensions ([2002] EWCA 947; [2002] 1 WLR 3343).  The only possible remedy for the appellant, having changed his/her mind about the withdrawal is to make a further appeal against the same decision – see R(IS) 5/94.

 

37.   I am concerned, however, at the failure of the appeal tribunal to involve the appointee in the formal withdrawal process.  As was noted above, those responsible for the administration of appeal tribunals have produced a ‘Procedural Guide’ as to the correct practice and procedure to be adopted in connection with, inter alia, oral hearings of appeals.  The guidance given in connection with the withdrawal of appeals was set out above. One aspect of that guidance was that:

 

‘If, immediately before a hearing commences (i.e. in the waiting room) an appellant/Rep state a wish to withdraw an appeal then they should be escorted to the hearing room so that the hearing may commence and the LQM can record the withdrawal on Form Oral/With

·                     The legal member will sign and date Form Oral/With’

 

38.   In its application to the present case, the clerk to TAS submitted that:

 

‘The appellant indicated that she had signed a form to withdraw the appeal, however there is no record of this on the file.  Our normal procedure when a case has been withdrawn at the hearing stage is as highlighted above, the appellant/Appointee/Representative/Departmental Officer are brought to the Tribunal room where they state their wish to withdraw orally and the LQM will complete the ORAL/WITH form, both signing and dating this.  In this case this has been completed, which means that this case has been validly withdrawn.’

 

39.   With respect to the clerk, while I accept that the LQPM completed a form ‘ORAL/WITH’ (albeit technically not accurately) I do not accept that the appointee was escorted to the appeal tribunal hearing room for the purposes of formal completion of the withdrawal process.

 

40.   It is important to remember, however, that regulation 49(1) of the Social Security (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, provides that the procedure for an oral hearing shall be such as the chairman (or LQPM) shall determine.  I can understand, therefore, why a clerk to an appeal tribunal would follow the instructions of the LQPM even where those instruction run contrary to what the clerk is supposed to follow in the Procedural Guide.

 

41.   Attention turns, therefore to the procedure adopted by the LQPM.  I repeat that I cannot understand why the LQPM did not involve the appointee in the withdrawal process.  The appointee was present in the appeal tribunal venue in a waiting room in a corridor close to the appeal tribunal room.  It is now clear, from the submissions attached to the application for leave to appeal, that the appointee had serious concerns about the withdrawal of the appeal.  She did not understand what her representative was endeavouring to explain to her following his first interaction with the appeal tribunal.  She could not comprehend why there was a difficulty with dates and what was being said about changes in her son’s medical condition.  She was perplexed at any suggestion of withdrawal of the appeal.  She wished, ultimately, to appear at the appeal tribunal to present a case on behalf of her son.  She submits that, in the end, she felt forced to agree to the withdrawal of the appeal.  The LQPM, and the appeal tribunal, of course, did not know anything of this.  It seems to me, however, that a straightforward invitation to the appointee to come into the appeal tribunal, followed by an explanation to her of the appeal tribunal’s conclusions with respect to the evidence which was before it; the relevance of the date of the decision under appeal; and the withdrawal rule and the implications of its application in the instant case, might have permitted the appointee to air her concerns, ask questions and make an informed decision as to whether she agreed to withdrawal.

 

42.   I have taken into consideration that Alderman Girvan may not have had the same experience of appeal tribunal practices and procedures and the procedural and substantive rules relating to social security benefits.  I would add, however, that I am of the view that it was incumbent on the representative if, as submitted, the appointee had serious concerns about withdrawal to draw such concerns to the attention of the appeal tribunal.

 

43.   Although regulation 40(1) of the Social Security (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, permit withdrawal by an authorised representative, it will always be best and safest practice, where the appellant is present, but has not otherwise been involved in any preliminary discussions about withdrawal, for the appeal tribunal to invite the appellant to the appeal tribunal room, explain the withdrawal rule and the consequences of its application and, most importantly ask the appellant whether that outcome has been understood and consented to.

 

44.   The issue is a very narrow one but I am satisfied that the failure to involve the appointee in the formal withdrawal process amounts to a procedural or other irregularity which was capable of making a material difference to the outcome or the fairness of proceedings sufficient to amount to an error of law.  I would repeat, however, that this case turns entirely on its own facts.  The issue is a narrow one and my decision must be seen in that context.  I would not necessarily have arrived at the same conclusion in a case where the representative had greater experience of appeal tribunal practice and procedure and the procedural and substantive rules of social security law.

 

45.   I am obliged to add the following. Regulation 9(1) of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999, as amended, provides that an application to a Commissioner for leave to appeal against the decision of an appeal tribunal may be made only where the applicant has sought to obtain leave from the chairman and leave has been refused or the application has been rejected.  In the instant case, I accept that the appointee endeavoured to make an application for leave to appeal to the LQPM but was informed by an officer in TAS that there was no further course of action open to her through that route.  Accordingly, there has been no refusal of leave to appeal by the LQPM nor any rejection of an application by him.  I am certain, however, that had an application for leave to appeal been placed before the LQPM then it would have been rejected.

 

46.   Regulation 27 of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999, as amended, provides that:

 

‘Any irregularity arising from failure to comply with the requirements of these Regulations shall not by itself invalidate any proceedings, and the Commissioner, before reaching its decision, may waive the irregularity, or take steps to remedy it.’

 

47.   I apply regulation 27 so as to permit consideration of this application.

 

         Disposal

 

48.   The decision of the appeal tribunal dated 26 January 2012 is in error of law.  The error of law identified will be explained in more detail below.  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.

 

49.   I direct that the parties to the proceedings and the newly constituted appeal tribunal take into account the following:

 

         (i)      the decision under appeal is a decision of the Department, dated 2 August 2011 which decided that there were no grounds to supersede a decision of an appeal tribunal dated 15 April 2011.  In turn the decision of the appeal tribunal was that the claimant had an entitlement to the lower rate of the mobility component of DLA from 18 September 2010 to 17 September 2013;

 

         (ii)     the appointee will wish to consider what was said at paragraph 77 of C15/08-09(DLA) concerning the powers available to the appeal tribunal and the appellant’s options in relation to those powers;

         (iii)    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; and

 

         (iv)    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):  Kenneth Mullan

 

Chief Commissioner

 

 

 

21 November 2012