Decision No:  C2/00-01(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCAPACITY BENEFIT

	Appeal to a Social Security Commissioner
	on a question of law from a Tribunal's decision
	dated 18 May 1999

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by myself, by the claimant against a decision dated 18 May 1999 of a Social Security Appeal Tribunal (hereinafter called “the Tribunal”) sitting at Newry.  My decision is given in the final paragraph.

2.	The Tribunal had disallowed the claimant’s appeal against the decision of an Adjudication Officer dated 30 June 1997 to the effect that an earlier Adjudication Officer’s decision whereby the claimant was entitled to a transitional award of Incapacity Benefit was to be reviewed and Incapacity Benefit disallowed from and including 30 June 1997.  This was on the basis that the claimant had failed the All Work Test.  There was no issue as to the fact that the claimant had to satisfy this test to remain entitled to Incapacity Benefit.

3.	This appeal has a long and complicated history.  It was originally listed before a Tribunal on 30 October 1997 and the claimant’s appeal was dismissed.  An appeal was made to the Social Security Commissioner and I decided in Decision No. C41/98(IB) to set aside the Tribunal’s decision as in error of law and remit the matter to a further Tribunal.  The matter was re-listed before the Tribunal on 18 May 1999.

4.	The claimant was notified of the hearing on 23 April 1999 and returned the relevant notification slip (known as an AT6) stating that he would not be attending and wished the Tribunal to proceed in his absence but that he would be represented at the hearing by Messrs A… J D… & Company, Solicitors.  A letter from the Solicitors dated 13 May 1999 and was amongst the documents considered by the Tribunal.

5.	I set out in full the body of that letter, as it is necessary to explain the decision in this case.  The letter states:-

“Further to our client’s AT6 as returned to you, we would advise that our client relies upon our previous correspondence to you dated 23.3.99 which [sic] the enclosure of his GP’s Report of the 16.2.99, by way of submission on behalf of this rehearing on Appeal from the Commissioner.

However, should there be any ambiguity or any queries, we would respectfully request that same be adjourned in order that we may specifically address same.

We trust that you find same satisfactory.”

6.	That letter I regard as not requesting an adjournment but only as requesting one if the Tribunal had any ambiguity or queries.  It appears to me that if the Solicitor regarded the evidence he was producing as inadequate or likely to be so considered he should have sought an adjournment to obtain additional evidence.  However, he did not do so.

7.	The matter came before the Tribunal on 18 May 1999 and neither the claimant nor his Solicitor attended.

8.	Part of the Record of Proceedings made by the Tribunal Chairman is as follows:-

“Called for 11.15.  Tribunal sat 12.30.  Notified on 23.4.99 to [claimant’s address] to be represented by A D… and Co Solicitors (letter from A D… 13.5.99 on file).”

9.	Part of the reasons for the decision were as follows:-

“… It is indeed unfortunate that claimant was not present at the hearing.  There was no evidence of what effect, if any, his depression may have in terms of the mental health descriptors.  We therefore cannot note findings of fact other than to assume that they are not satisfied. …”

10.	The grounds of appeal contained on the OSSC1 form were as follows:-

“The Tribunal based its decision on an assumption, by its own admission, despite solicitors letters of 23/03/99, 13/05/99 and 20/05/99 therefore insufficient evidence.  Accordingly, in turn breaching the rules of natural justice.”

11.	The letter of 20 May 1999 of course post-dated the Tribunal’s decision and could not therefore have been taken into consideration by the Tribunal.  The letter of 23 March 1999 was a letter from the claimant’s solicitors stating as follows:-

“Further to yours of the 10th February 1999 we enclose herewith copy Medical Report from our client’s GP, Dr McC… dated 16th February 1999, by way of service upon you.

Kindly ensure that same is attached to the Tribunal Members Schedule of Evidence.

Accordingly, the Tribunal will be aware that this is a rehearing following an Appeal to the Commissioner.  The issue in question, vide Commissioners Decision as forwarded to the Independent Tribunal Service, stated that the Tribunal at the date of the original Hearing failed to take into consideration deterioration and new symptoms (being law at date of original Hearing and applicable for the purposes of this Hearing).

Accordingly, in light of Dr McC…’s report as enclosed, it is clear that [the claimant] was suffering from depression equating to the necessary descriptor points with his physical descriptor points to a sufficient level to entitle him to Incapacity Benefit and therefore we would respectfully submit that this rehearing be allowed for the period claimed.”

12.	It will be noted that the letter of 23 March 1999 made no mention of any assumptions or any adjournments.

13.	Observations on the matter were furnished by Mr Toner of the Decision Making and Appeals Unit of the Department for Social Development and I am obliged to him for his considerable assistance in the matter.  I also addressed certain queries to both Mr Toner and the claimant’s solicitor as to the meaning of the phrase in the letter of 13 May 1999 “should there be any ambiguity or any queries” and also as to who was to decide whether this was any ambiguity or any query.

14.	I received no useful response to the first of these queries from the claimant’s solicitors.  Mr Toner expressed the view that the claimant’s solicitors had meant that an adjournment was requested if their client was not to be successful.  Both were agreed that the Tribunal had the power to decide whether there was any ambiguity or any query.

15.	I would comment on this matter only to say that any request for an adjournment, which is made conditional on the claimant not succeeding, would not be a proper request for an adjournment.  In effect it would be requiring the Tribunal to reach a decision and then decide whether or not to adjourn in order that a different decision might be reached.  I am in agreement with both representatives that it was for the Tribunal to decide whether or not any query or ambiguity was raised.  If the Tribunal reasonably considered that there was no such query or ambiguity raised on the evidence then there was no need for the Tribunal to consider any request for an adjournment because one was simply not made, the condition which raised the request not having been fulfilled.  I say this because the request for an adjournment was based on the condition that there should be an ambiguity or query and I am of the view that it was for the Tribunal to decide this matter.

16.	Mr Toner contended that the Tribunal appeared to expect the solicitors to attend.  The Tribunal has specifically recorded that it had before it the letter of 13 May 1999 and as it is relatively clear from that letter that the solicitors were not going to attend, I do not think that Mr Toner is correct.  Mr Toner may consider that this is the case because the Tribunal did not sit until 12.30pm although the case was called for 11.15am.  I have been unable to ascertain why the Tribunal did not sit until 12.30pm but I would suspect it would have been because of delay in earlier cases as I find it highly unlikely that the Tribunal would have sat for 1 hour and 15 minutes awaiting the attendance of a solicitor.  I do not consider that the Tribunal operated under the mistaken impression that the solicitor was going to attend.

17.	The remaining issue then is whether or not the Tribunal should have considered that a request for an adjournment had been made.  This is dependent on whether or not the Tribunal should reasonably have considered that there were any queries or ambiguities in the evidence provided.  If it was reasonable for the Tribunal to consider that there was no such query or ambiguity to be resolved no request for an adjournment was made and no comment on it was necessary.

18.	In this case the Tribunal concluded that as there was no evidence of the effect of the claimant’s depression in terms of the activities in the mental health descriptors it was no able to allow the claim.  On the evidence before it I consider that it was entitled to reach this conclusion.  Dr McC…’s report of 16 February 1999 was, however, before the Tribunal and that report, with regard to the mental health descriptors, stated as follows:-

“… Effects on Daily Living.  I do not have exact details how depression interfered with his life style.  However, it would very likely have resulted in changes affecting all the areas you have mentioned, completion of tasks, coping with pressure and interaction with other people. …”

19.	The letter also mentions that the claimant had attended the doctor’s surgery on 12 October 1997 and was complaining of problems in relation to tearfulness, headaches, poor sleep and early morning wakening.  I should mention that Dr McC…’s letter was written in response to a letter from the solicitors of 9 February 1999.  I would strongly prefer the solicitors to have furnished this letter to the Tribunal and will allude further to this matter later.

20.	On balance I consider that this letter from Dr McC… should have raised sufficient queries in the Tribunal’s mind for it to consider the request for the adjournment.  I agree with Mr Toner that the Tribunal was under no obligation to agree to an adjournment.  If sufficient evidence is not furnished to satisfy the conditions the Tribunal is quite entitled to conclude against the claimant without adjournment further.  However it does appear to me that the request for the adjournment should have been addressed as Dr McC…’s report did raise certain queries as to possible mental health descriptor points.  Had the Tribunal considered that a request for an adjournment was made and refused it, the claimant already having had an opportunity to present his evidence, I would not have criticised the decision in any way.  However, the Tribunal did not consider the request for the adjournment and for that reason I consider that it erred in law.

21.	I set the decision aside as in error of law for that reason alone and remit the matter to a differently constituted Appeal Tribunal for rehearing.  That Tribunal should ensure that it deals with the matter either down to the date of any fresh claim for Incapacity Benefit or down to the date of hearing which ever is the sooner.  It should also have before it the solicitor’s letter of 9 February 1999 to Dr McC….  It should ensure that it deals fully with the review decision of 7 July 1997 although as I mentioned previously the onus of satisfaction of the All Work Test is on the claimant as the previous award was a transitional one.  In light of the inadequacies of the written evidence and Dr McC…’s obvious lack of detailed knowledge of the situation in relation to the mental health descriptors it may be helpful to the Tribunal to have evidence from the claimant.  While the matter is not for me, in light of this case’s history, I would hope that the case would be speedily re-listed.

(Signed):  M F Brown

COMMISSIONER

8 September 2000