UK Social Security and Child Support Commissioners' Decisions

 


Commissioners file: CDLA 1761 2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I allow the appeal.
2. The claimant, and appellant, is appealing with my permission against the decision of the Darlington appeal tribunal on 16 July 2001 under register number U 44 224 2001 00474.
3. For the reasons below, the decision of the tribunal is erroneous in law. I set it aside. I refer the appeal to a differently constituted tribunal for determination in accordance with the directions given in this decision (Social Security Act 1998, section 14(8)(b) and (9)).
4. I deal with the reasons for my decision briefly, as the secretary of state's representative supports the appeal in a full submission I invited before granting permission to appeal. I agree with the submissions of both parties that the previous tribunal did not deal adequately with all the evidence before it, and in particular about the evidence of the general practitioner. I also agree that the tribunal failed adequately to deal with the claimant's own evidence about care needs fully.
5. In the application for permission to appeal the appellant's representative based one ground of appeal on article 6 of the European Convention on Human Rights and the delay in producing the written statement in this case. The precise wording of article 6(1) is that "everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law." In this case the hearing took place on 16 July 2001. Written reasons were only provided on 21 January 2002, though they purported to be made and signed on 16 July. For the appellant it was stated that there was no good reason for this delay, that an error by a clerk can be an error by the tribunal: R(IS) 11/99, and that the delay was itself a ground of appeal. The secretary of state's representative contended that the suggestion that the application of article 6(1) as argued for by the appellant was fundamentally misconceived, and also raised questions about the jurisdiction of a Commissioner to deal with delay by the appeals service. In the final submission, the secretary of state's representative invited me to give some guidance on the issue of delay in the context of article 6.
6. I have noted those submissions specifically to indicate that, save for the comments below, I have not considered them fully. The appellant and representative have now, in effect, asked for summary judgment. For that reason, I do not delay this case further to examine the previous delay! I have formed no final view about the points raised by either party. It is by no means clear that the reasonable time applies to specific parts of the process rather than the process as a whole. But reference to the Human Rights Act 1998 may not be needed to make the representative's point.
7. There is relevant statutory provision in regulation 53(4) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. A copy of a full statement is to be sent to every party "as soon as may be practical". That should be read alongside the need to make the request for it within one month, or within three months at the longest (regulation 54). If longer than three months is never allowed to a party, how can Parliament be credited with the view that it may be impracticable for the tribunal to produce the statement in less than that time? If the tribunal has failed to produce a statement in that time, has it erred in law in any event? That was not considered in R(IS) 11/99 and has not been raised by the parties here, so I note but do not decide it.
8. It also follows from regulation 53(4) that there is normally a gap between the date of signature of the decision notice and the date of signature of the statement. That gap ought to be clear from the statement itself. The date of signature of the statement should be the date when the statement was actually signed (the date of hearing appears elsewhere on the standard forms used). Current tribunal practice on this appears to be inconsistent.
9. Proper dating assists in deciding whether appeals are timely. It also gives rise to another consideration. Where there is a long gap between the decision and the statement, there is scope for points to be forgotten, especially where as here the decision was by a three-person tribunal and the statement was signed by only one of them. That is the basis behind three valid grounds of appeal in this case: an inaccuracy in the statement as compared with the record of proceedings; failure to deal with relevant evidence; and failure to make findings on issues in dispute. A long delay between the hearing and the statement may be the reason for points such as these, and is therefore directly relevant to consideration of grounds of appeal such as those in this case.
10. Returning to this case, I direct the new tribunal to which this appeal is referred as follows. I have set aside the decision of the previous tribunal, and the statement made by that tribunal should be ignored by the new tribunal. The new tribunal should consider again the refusal of the new claim for disability living allowance by the appellant made by the Secretary of State in January 2001. It should take into account all the evidence. This will also give the appellant and representative a further opportunity to attend the hearing.

David Williams

Commissioner

24 July 2002

[Signed on the original on the date shown]