UK Social Security and Child Support Commissioners' Decisions

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Cite as: [1998] UKSSCSC CDLA_3680_1997

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CDLA/3680/97

The Social Security and Child Support Commissioners

SOCIAL SECURITY ADMINISTRATION ACT 1992

APPEAL TO THE COMMISSIONER FROM A DECISION OF A DISABILITY APPEAL TRIBUNAL UPON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

This is an appeal, brought by the claimant with my leave, against a decision of the Bexleyheath disability appeal tribunal dated 26 September 1996, whereby they held that the claimant was not entitled to disability living allowance. The appeal is supported by the adjudication officer.

Notice of the hearing before the tribunal was sent to the parties on 11 September 1996. On 19 September 1996, the Disability Appeal Tribunals Central Office received by fax a request from the claimant's representative at Greenwich Community Law Centre for a postponement of the hearing before the tribunal on the ground that the representative was unable to attend the hearing. That request was refused by a full-time chairman without any reason being given and the decision was sent either to the claimant or to her representative on 20 September 1996, although by what means I do not know. The claimant neither appeared nor was represented at the hearing on 26 September 1996. The tribunal recorded:-

"The tribunal were given to understand that the appellant's representative had requested a postponement from DATCO which had been refused. There is no indication before this tribunal as to the grounds for such a request for postponement and indeed no request was forthcoming to this tribunal for a postponement or adjournment."

This was a wholly unsatisfactory state of affairs although, of course, it was not the fault of the members of the tribunal. One of the issues in the appeal was the state of the claimant's mental health. Later in their decision, the tribunal recorded:-

"The tribunal accept that the appellant gets depressed and panicky and does not sleep well and would prefer to have someone with her for reassurance."

This seems a fairly clear case in which representation for the claimant was desirable.

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. I do not know whether the full-time chairman considered the evidence in the case before refusing the postponement. Nor do I know why he refused it. Did he expect the claimant to renew her application personally before the tribunal who could have formed a view as to the extent to which she might be assisted by a representative? Did he disbelieve the representative when it was said that no-one could attend on the claimant's behalf? Did he expect the claimant to find another representative? It would have been helpful if he had indicated in a sentence or two what his reasoning was because that might have prompted some appropriate action on the part of the claimant or her representative.

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.

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 and I do not see how they can properly consider that question without knowing the ground upon which the original application for postponement was made. In my view, the failure of the Disability Appeal Tribunals Central Office to ensure that the tribunal had before them the necessary documents led to a breach of one of the rules of natural justice, audi alteram partem, because the tribunal were unable to consider the claimant's case on the issue of the adjournment. She was entitled to expect that the letter seeking a postponement would be before the tribunal. Had the tribunal in the present case been aware of the ground upon which the postponement had been requested by the claimant's representative, they might well have decided to adjourn the hearing whether neither the claimant nor a representative appeared. On that ground alone, I allow the claimant's appeal.

However, I should not be taken to consider that the tribunal would have been bound, as a matter of law, to adjourn the case had they known of the true grounds of the application for a postponement. It has never been asserted that the claimant could not in fact have renewed the application before the tribunal in person so that its merits could be considered in greater depth or so that, if it was refused, the claimant could give evidence on the substantive issue on the appeal. Where an application for a postponement is refused - or no reply is received to such an application - it is incumbent upon the claimant to take all possible steps to appear, or to have someone appear on his or her behalf, before the tribunal in order to assist the tribunal in considering whether there should be an adjournment. As I have already indicated, it would be helpful if this point were to be made to claimants when applications for postponements are rejected.

This appeal is therefore allowed on the ground that there was a breach of natural justice because the relevant documents were not before the tribunal and not on the ground that the tribunal should have adjourned the hearing. Such a breach of natural justice could, of course, be remedied by the decision of the tribunal being set aside under regulation 10(i)(a) of the Social Security (Adjudication) Regulations 1995. In the present case, before seeking leave to appeal, the claimant did sensibly apply to another tribunal for the decision of 26 September 1996 to be set aside under regulation 10. That application was refused on 30 January 1997 without an oral hearing (which is permissible but which may limit the grounds upon which an application may fairly be refused) and in a decision given in a standard form which not only did not address the question whether the tribunal had all the relevant documents before them (which is understandable because that point was not made by the claimant although it was the real issue in the case) but also failed to deal with the claimant's point that her representative had been unable to attend the hearing due to a staff shortage( which seems a clear breach on the part of the tribunal of the duty to give reasons imposed on them by regulation 10(4) of the 1995 Regulations, even if they thought the point was not by itself a compelling one).

Both parties contend that the tribunal sitting on 26 September 1996 did not give adequate reasons for not awarding the lower rate of the mobility component of disability living allowance and that the tribunal erred in not making it clear whether they had accepted that cajoling the claimant to eat and otherwise take care of herself might amount to attention in connection with her bodily functions for the purposes of the care component. There is force in those submissions, although I am conscious that not only was the claimant not present to assist the tribunal but also the Benefits Agency had not seen fit to provide a presenting officer for that purpose. As the adjudication officer accepts that cajoling a claimant may amount to attention in connection with bodily functions (relying on CA/508/92 and CDLA/895/94) and as I find the tribunal's decision to be erroneous in point of law on another ground, I need say no more about those submissions.

The parties have expressed differing views as to whether the claimant had a strong case on the written evidence before the tribunal. I prefer not to express any view myself on that question. It is enough that I am satisfied that she has an arguable case that must be considered by another tribunal.

I allow the claimant's appeal. I set aside the decision of the Bexleyheath disability appeal tribunal dated 26 September 1996 and I refer the case to a differently-constituted tribunal for determination.

(Signed)

M. Rowland
Commissioner

16 July 1998