UK Social Security and Child Support Commissioners' Decisions

[2008] UKSSCSC CDLA_3093_2007 (04 February 2008)

CDLA 3093 2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I allow the appeal. For the reasons below, the decision of the tribunal is wrong in law. It is set aside. I refer the appeal to a new tribunal to consider in accordance with the directions in this decision.
2. The claimant and appellant is appealing with my permission against the decision of the Blackpool tribunal on 27 07 2007 under reference 064 07 00621
3. DIRECTIONS FOR REHEARING

A The rehearing will be at an oral hearing.

B The new tribunal should not involve any member who has previously been a member of a tribunal involved in this appeal.

C The claimant is reminded that the tribunal can only deal with the appeal as at the date of the original decision under appeal.

D If the claimant has any further written evidence to put before the tribunal, this should be sent to the tribunal within one month of the issue of this decision.

These directions are subject to any later direction by a district chairman.

REASONS FOR THE DECISION

4. The parties have agreed that I should set aside the decision of the tribunal, and refer it for rehearing, for the reasons given when I granted permission to appeal. These were as follows.
5. The main ground of appeal was that the tribunal refused to adjourn the hearing when requested to do so by the representative. It also failed to deal with this in its decision. I have before me the decision of the tribunal, the original of the record of proceedings, and the full statement of reasons. None of them give any indication that the representative asked for an adjournment at the beginning of the oral hearing. Nor do they indicate that the tribunal considered the application at that or any other stage of the proceedings. Nor do they indicate the reasons for the actions taken by the tribunal.
6. When these papers were first put before me, I asked for the views of the chairman on the grounds of appeal, including specifically this ground. The chairman accepted that an application to adjourn as made. The chairman also explained the consideration given by the tribunal to that application. I accept the chairman's account of what happened, and note that the chairman accepts that the record was silent on that aspect of the tribunal proceedings.
7. I also accept the representative's statement of the reason why the adjournment was requested. The tribunal was being asked to decide on matters relating to a decision in 2007 with no relevant medical evidence from either party since 2004. That is clearly a relevant consideration, given that the appellant was asking for renewal or increase of the award on the grounds of continuing and increased disablement. The appellant's evidence in the record of proceedings and the list of medications suggest ongoing primary medical and psychiatric care of the appellant of which there is no direct medical evidence.
8. I cannot see from any part of the tribunal record (and not merely the statement of reasons) why the tribunal formed the view that it was able to reject the application to adjourn for more up to date medical evidence. I am told, and accept, that the chairman suggested that a few questions be asked before a decision was taken on the application. That, in my view, is appropriate. In such cases a tribunal is making two decisions. The first is to start the proceedings despite being asked to adjourn – in effect either to hear the application at length or to postpone it until the substance has been explored. The second is to make a full decision without adjourning. There is nothing on the record about either decision. The application to adjourn was clearly relevant to the proceedings. It was expressly in issue. The tribunal should have recorded that the application was made somewhere in the tribunal record. And it should at least have recorded briefly its decision on the application. The absence of any note of the application or note or explanation of the tribunal's decision is itself an error of law.
9. This was a decision about renewing in 2007 an award of disability living allowance made in 2005. There was a previous award of the lower rate of the mobility component that the Secretary of State had refused to renew. There is no examining medical practitioner's report, general practitioner report or other medical evidence from any source since 2004. The tribunal expressly relied on the failure to produce medical evidence in support the claim for lower rate of the mobility component. It did so without noting that that failure is at least arguably in part because of its own procedural decision. The Secretary of State offered no new evidence to contradict the appellant's evidence. In addition to the failure to explain why it would not adjourn to admit further medical evidence, the tribunal arguably failed to explain on what evidence it relied in rejecting the appellant's new evidence and that of his wife.

David Williams

Commissioner

4 02 2008

[signed on the original on the date shown]