UK Social Security and Child Support Commissioners' Decisions

 
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is given under section 14(8)(b) of the Social Security Act 1998. It is:

I SET ASIDE the decision of the Hereford appeal tribunal, held on 1 March 2004 under reference U/04/036/2004/00013, because it is erroneous in point of law.

I REMIT the case to a differently constituted appeal tribunal and DIRECT as follows.

The appeal tribunal must conduct a complete rehearing of the issues that are raised by the appeal and, subject to the tribunal's discretion under section 12(8)(a) of the 1998 Act, any other issues that merit consideration. In particular:

The appeal tribunal must investigate and determine the claimant's capacity for work on and from 13 October 2003.

The appeal tribunal must not take account of circumstances that were not obtaining at that time: see section 12(8)(b) of the Social Security Act 1998. Later evidence is admissible, provided that it relates to the time of the decision: R(DLA) 2 and 3/01.

The legal burden is on the Secretary of State to prove that the claimant no longer satisfies the conditions of entitlement for an award of incapacity benefit.

What this case is about

2. In 1989, Hazel and Yvette Genn wrote a Report for the Lord Chancellor on The Effectiveness of Representation at Tribunals. They concluded at page 247 (my emphasis):

'The evidence presented in this report leads inescapably to the general conclusion that specialist representation at tribunals increases the likelihood that those who bring their cases before tribunals will succeed. …

'Unless the activities of representatives are thought to lead tribunals into allowing unmeritorious cases, the conclusion must be that representation increases the accuracy of tribunal decision-making. Representatives do this by furnishing tribunals with the information needed to reach reasoned decisions, based on all the relevant facts of the case, and on the law which relates to the case. In investigating cases, obtaining evidence, and advocating cases, representatives are ensuring that appellants whose cases have merit, are given the best chance of succeeding before the tribunal.'

3. This case is about the functions of a representative and the duty on the tribunal to allow the representative to fulfil those functions.

How the issue arises

4. The issue arose like this. The claimant representative's was unable to attend the hearing of this appeal, because his wife had been taken ill. The claimant attended the hearing and asked for an adjournment so that she could be represented. The tribunal refused the adjournment. The chairman explained why in this passage:

'The Tribunal discussed the possibility of an adjournment but decided that all necessary evidence could be obtained from the appellant. We realise that [she] might have felt happier to have someone with her but she wanted to proceed and agreed that she felt able to do so. We therefore decided against the adjournment.'

The chairman recorded the claimant's comments during the discussion whether to adjourn. I assume that most of them were in answer to questions from the tribunal. The chairman did not record what the tribunal said to the claimant, but it is possible to identify what lay behind some of the questions. The tribunal asked questions about the evidence that would be produced, because the claimant had ticked the pre-hearing enquiry form to say that she had further evidence. She told the tribunal that her representative had told her to do this just in case. It is clear from the claimant's final comment recorded by the chairman that she did not understand the functions that a representative performs. She said:

'I don't know what I expected him to do.'

How the tribunal went wrong in law

5. The chairman's explanation of why the tribunal did not adjourn shows that it went wrong in law in two ways: it failed to take account of the full range of functions of a representative and the claimant's consent to proceed was not properly informed. The two mistakes are linked, because the tribunal's view of the functions of a representative affected the basis on which the claimant consented to proceed without her representative.

The functions of a representative

6. A representative fulfils at least three functions.
7. First, the representative acts as a companion for the claimant, and may provide confidence in a strange environment. The Genn Report shows that the presence of a companion, even one who has no knowledge of the law, increases the chances of a claimant's success at a hearing (page 68).
8. Second, the representative may assist the tribunal in gathering the evidence from the claimant. Sometimes the tribunal may be as able as the representative to obtain the relevant evidence. But a representative who is familiar with the claimant's case may be able to elicit evidence that the claimant does not realise is relevant and does not emerge from the tribunal's questions.
9. Third, the representative may make submissions on the law and may draw issues of evidence, fact or law to the attention of the tribunal.
10. The legislative basis for exercising those functions is regulation 49(8) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999:

'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 he represents is entitled.'

11. However, the rights and powers conferred by this paragraph may have to be reconciled with other rights and powers. Those relevant to this case are the tribunal's power to adjourn (regulation 51(4)) and the chairman's control of procedure (regulation 49(1)). The legal mechanism by which the reconciliation is effected is the requirement that the tribunal and the chairman must exercise their discretions judicially. As Mr Justice Collins expressed it in R v Social Security Commissioner, ex parte Bibi (unreported 23 May 2000):

'18. … I appreciate that there is no absolute right to representation, but there is an absolute right to be dealt with fairly. …'

In other words, when deciding whether to adjourn to allow a representative to attend, a tribunal must take into account the full functions that the representative may fulfil for the claimant. And the chairman must so organise the procedure at the hearing that a competent representative is able to operate effectively.

12. In this case, the tribunal's reasoning shows that it did not act judicially in refusing the adjournment. It assumed that the only role of the representative, if he attended, would be to elicit evidence from the claimant. And its emphasis on the evidence gathering function misled the claimant into believing that that was a representative's sole function. It is clear from the claimant's comment that she did not know what role a representative would perform. In those circumstances, the tribunal was not entitled to rely on the claimant's consent to proceed, as it was evidently misinformed.
13. To put it another way: the discretionary powers of adjournment and control of the proceedings must be exercised in a way that furthers their purpose. The purpose of the power to adjourn is to ensure that the parties have a fair hearing. The purpose of the chairman's control of the tribunal's procedure is to ensure good order and efficiency in the use of tribunal time. Proper representation is conducive to a fair hearing. And good order and efficiency is compatible with allowing a competent representative to operate effectively. The tribunal's reasons show that it did not have regard to the purposes underlying those provisions in exercising the power to adjourn and in providing the claimant with an informed basis for making a decision whether to proceed.

Conclusion

14. In CIB/1009/2004, Mr Commissioner Rowland commented:

'28. I sense that relations between the [representative's organisation] and the tribunals are not all that they ought to be. I express the hope that those in a position to do so will take some steps to promote greater mutual understanding.'

I respectfully agree with all that Mr Rowland said in that decision. I have seen too many cases recently in which tribunals have exercised their power to adjourn to allow a representative to attend too restrictively or chairmen have sought to restrict and constrain unreasonably a representative's contribution to the hearing. The Genn Report confirmed what was, and remains, common experience, that good representation enhances the quality of the decision-making in a tribunal. Tribunals and their chairmen must allow representatives the opportunity to fulfil their proper role.

15. I allow the appeal and direct a rehearing.

Signed on original on 26 October 2004

Edward Jacobs Commissioner