Northern Ireland - Social Security and Child Support Commissioners' Decisions

BLR-v-Department for Social Development (ESA) [2016] NICom 11

Decision No: C17/15-16(ESA)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

EMPLOYMENT AND SUPPORT ALLOWANCE

 

 

Appeal to a Social Security Commissioner

on a question of law from a Tribunal's decision

dated 25 March 2015

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1. The decision of the appeal tribunal dated 25 March 2015 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.

 

2. 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. 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.

 

3. It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of his entitlement to employment and support allowance (ESA) 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

 

4. The decision under appeal to the appeal tribunal was a decision of the decision-maker of the Department, dated 6 June 2014, which was that, as the Department had decided that the appellant did not have limited capability for work, his entitlement to incapacity benefit (IB) did not qualify for conversion into an award of ESA from and including 21 June 2014. The appeal was received in the Department on 1 July 2014. On 18 July 2014 the decision dated 6 June 2014 was looked at again but was not changed.

 

5. The substantive oral hearing of the appeal took place on 25 March 2015. The appellant was not present. The reason for his absence and the appeal tribunal's decision to proceed in his absence are considered in more detail below. There was no Departmental Presenting Officer present. The appeal tribunal disallowed the appeal and confirmed the Departmental decision dated 6 June 2014.

 

6. On 8 July 2015 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS). On 4 August 2015 the application for leave to appeal was refused by the Legally Qualified Panel Member (LQPM).

 

Proceedings before the Social Security Commissioner

 

7. On 7 September 2015 a further application for leave to appeal was received in the Office of the Social Security Commissioners. On 21 September 2015 observations on the application for leave to appeal were sought from Decision Making Services (DMS), In written observations received on 1 October 2015, Mr McKendry, for DMS, opposed the application on certain of the grounds submitted on behalf of the applicant but supported the application on another ground. Written observations were shared with the applicant and her representative on 5 October 2015. A response to the written observations was received from the appellant on 21 October 2015.

 

8. On 16 December 2015 I granted leave to appeal. In granting leave to appeal, I gave as a reason that an arguable issue arose as to whether the appeal tribunal gave proper consideration to an adjournment of the appeal tribunal hearing before continuing the proceedings in the absence of the appellant. On the same date, I determined that having considered the papers that the appeal could properly be determined without an oral hearing.

 

Errors of law

 

9. 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. What is an error of law?

 

10. 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."

 

Analysis

 

11. In his comprehensive and constructive written observations on the application for leave to appeal, Mr McKendry made the following submission:

 

'In support of his application for leave to appeal (the claimant) contended that, in relation to the second appeal hearing he did not receive any notification ".. either by telephone or writing that this request had been refused.." He further took issue with the HCP report.

 

The SORs makes no reference of (the claimant's) request for a postponement. Form AT10(p)D shows that the LQM "refused by phone" (the claimant's) request for a postponement. It is not evident as to whether this was directly to (the claimant) or to the Clerk to the Tribunal. Irrespective of this there was evidence before the tribunal of (the claimant's) request for the postponement.

 

I would refer the Commissioner to a Northern Ireland decision of Commissioner Mullan in C37/08-09(DLA). Commissioner Mullan held that where an application for postponement has been refused, then a failure to attend the oral hearing by the appellant must be treated as an application for adjournment. In that case - because the tribunal failed to consider an application for adjournment, he held that it had erred in law. I would refer to the following extracts from C37/08-09(DLA):

 

"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 ..."

 

Commissioner Mullan then considered a decision of NI Commissioner Brown:

 

"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."

 

Commissioner Mullan concluded at paragraph 34 of his decision:

 

"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."

 

... In light of this case law, given that (the claimant) had taken issue with the contents of the HCP's report and the fact that nowhere in the SORs is that issue addressed I would submit that the tribunal failed in its inquisitorial role in not considering to adjourn and as such would support (the claimant's) application for leave to appeal.'

 

12. I accept Mr McKendry's submissions and, for the reasons which he has set out, agree that the decision of the appeal tribunal is in error of law.

 

13. The circumstances of this are parallel to those which arose in C37/08-09 (DLA). In the instant case the appellant returned a form relating to his intentions in connection with an arranged oral hearing of his appeal to TAS, where it was received on 18 March 2015. On that form the appellant had ticked a box to indicate that he was unable to come to the arranged oral hearing and would like another date arranged. The reason given by the appellant was that:

 

'I am committed to a long standing appointment on this date.'

 

14. In the file of papers which is before me is a copy of an internal TAS Form AT10(p)D. The form is a submission to the LQPM of the appeal tribunal. The submission relates to the request by the appellant to arrange another date for the oral hearing of the appeal. The clerk to the appeal tribunal has transposed this into an application for a postponement. The submission sets out the reason for the application for a postponement and the LQPM is asked whether the hearing might be postponed. On the second page of Form AT10(p)D there is a section in which the LQPM can set out his/her decision in connection with the query which has been raised. In this section, as has been noted by Mr McKendry, someone has recorded:

 

'Refused by phone'

 

15. The second page of the form is signed and dated on a date in March 2015. I say 'a date; but it is unclear what that date is. It looks like it could be '27 ^th' March but I could not be certain. What I am certain of is that the form was signed and dated by the same LQPM who heard and determined the appeal on 25 March 2015. The signature and hand-written date are very similar to those which are on the appeal tribunal's decision notice, in the statement of reasons for the appeal tribunal's decision and on the determination which refused leave to appeal to the Social Security Commissioner. In addition Form AT10(p)D is directed to the LQPM by name and the named LQPM is that of the LQPM of the appeal tribunal which heard and determined the appeal.

 

16. Although I cannot be certain, what I suspect has happened is that the clerk to the appeal tribunal has received the appellant's application for a postponement and has contacted the LQPM by telephone. The LQPM has indicated his refusal of the application and the Clerk has recorded that on the appropriate section on form AT10(p)D. I suspect that the completed Form AT10(p) was placed before the LQPM on a date after 19 March 2015 when it was signed and dated by him.

 

17. I should emphasise that I find no fault with what had transpired to that date. The clerk acted appropriately and the LQPM was entitled to arrive at the decision on the application for a postponement which he did. Thereafter, however, what happened is problematic, in two aspects. The first is that there is no evidence before me that the appellant was informed that the response to his application for a postponement of his appeal tribunal hearing was ever communicated to him. In his application for leave to appeal to the Social Security Commissioner the appellant has submitted that:

 

'The appeal was heard in my absence, adjournment was requested, but no notification was received stating this was declined.'

 

18. That submission suggests that notification of the refusal of the application for a postponement was not received. This is important because it is critical that parties to the proceedings are informed of the outcome of interlocutory decisions on applications relating to those proceedings. In the instant case the appellant might have assumed that the appeal tribunal hearing had been postponed. Had he been informed of the true position he might have made alternative arrangements to attend the oral hearing of the appeal, or send a representative on his behalf, either to renew an application for an adjournment or participate in the substantive hearing.

 

19. The second and more critical aspect of what occurred after the refusal of the postponement action concerns the failure by the appeal tribunal to return to the absence of the appellant at the appeal tribunal hearing. There is no reference, in the record of proceedings for the appeal tribunal hearing or in the statement of reasons for the appeal tribunal's decision, to the absence of the appellant and, more particularly, whether the appeal tribunal gave consideration of any further procedural action as mandated by C37/08-09 (DLA). To return to what was stated in that 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.'

 

20. As in C37/08-09 (DLA) I have to conclude that the failure by the appeal tribunal 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. That mandates the setting aside of the appeal tribunal's decision on the basis that it is in error of law.

 

21. I set aside the decision of the appeal tribunal with a strong degree of reluctance given the appeal tribunal's careful and judicious management of the other aspects of the appeal, and its circumspectly prepared statement of reasons. It is clear, however, that an appeal tribunal must give as careful consideration to the procedural issues arising in the appeal as it does to the substantive matters.

 

22. 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 submitted by the appellant.

 

Disposal

 

23. The decision of the appeal tribunal dated 25 March 2015 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.

 

24. 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 6 June 2014, which decided that as the Department had decided that the appellant did not have limited capability for work his entitlement to IB did not qualify for conversion into an award of ESA from and including 21 June 2014 ;

 

(ii)        in his submission in response to the written observations from Mr McKendry, the appellant has indicated that he has, since the date of the decision under appeal, submitted a renewal claim to ESA which was successful and that he is now in receipt of that benefit. The Department is directed to provide details of any subsequent decision-making activity in connection with ESA and the outcome of any such decision-making to the appeal tribunal to which the appeal is being referred. The appeal tribunal is directed to take any evidence of subsequent decision-making into account in line with the principles set out in C20/04-05(DLA);

 

(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) K Mullan

 

Chief Commissioner

 

 

 

28 January 2016