ADR-v-Department for Social Development (DLA) [2011] NICom 191
Decision No:  C9/11-12(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Application by the claimant for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 3 February 2010

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	Having considered the circumstances of the case and any reasons put forward in the request for a hearing, I am satisfied that the application can properly be determined without a hearing.  I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.

2.	The decision of the appeal tribunal dated 3 February 2010 is in error of law.  Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

3.	For further reasons set out below, I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given.  This is because there is detailed evidence relevant to the issues arising in the appeal, including medical evidence, to which I have not had access, and there may be further findings of fact which require to be made.  Further I do not consider it expedient to make such findings, at this stage of the proceedings.  Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.  In referring the case to a differently constituted appeal tribunal for re-determination, I direct that the appeal tribunal takes into account the guidance set out below.

4.	It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of his entitlement to disability living allowance (DLA) remains to be determined by another appeal tribunal.  In accordance with the guidance set out below, the newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal.

	Background

5.	On 20 August 2009 a decision-maker of the Department decided that the appellant satisfied the conditions of entitlement to the lowest rate of the care component of DLA for the period from 17 November 2009 to 16 November 2011.  On 19 September 2009, and following receipt of a telephone call disputing the decision, the decision dated 20 August 2009 was reconsidered but was not changed. On 30 September 2009 a letter of appeal was received in the Department.

6.	The substantive oral hearing of the appeal took place on 3 February 2010.  The appellant was not present at this oral hearing and neither was a presenting officer from the Department.  The circumstances giving rise to the appellant’s non-attendance will be explored in greater detail below.  The appeal tribunal disallowed the appeal and confirmed the decision dated 20 August 2009.

7.	On a date which is not apparent from a badly copied letter, the appellant made an application for the decision of the appeal tribunal to be set aside.  On 24 March 2010 the application to have the decision of the appeal tribunal set aside was refused by the legally qualified panel member (LQPM).  On 8 June 2010 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS).  On 12 July 2010 the application for leave to appeal was refused by the LQPM.

	Proceedings before the Social Security Commissioner

8.	On 16 September 2010 a further application for leave to appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners.  On 2 November 2010 the legal officer directed TAS to produce copies of all letters and documentation which were sent to the appellant concerning the date of hearing.  On receipt of the relevant documentation, the legal officer directed TAS to produce details of any procedures whereby an appellant might receive a ‘reminder’ letter concerning the date, time and venue of the oral hearing of his appeal.

9.	For the purposes of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999, as amended, the application for leave to appeal was late.  On 15 December 2010 however, I accepted the application for special reasons.  On 17 January 2011 observations were sought from Decision Making Services (DMS) and these were received on 15 February 2011.  Mrs Hulbert, for DMS, opposed the application on most of the grounds submitted by the applicant but supported the application on one of the grounds.  The written observations were shared with the appellant on 8 March 2011.

	Errors of law

10.	A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.

11.	In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals.  As set out at paragraph 30 of R(I) 2/06 these are:

“(i)	making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);
(ii)	failing to give reasons or any adequate reasons for findings on material matters;
(iii)	failing to take into account and/or resolve conflicts of fact or opinion on material matters;
(iv)	giving weight to immaterial matters;
(v)	making a material misdirection of law on any material matter;
(vi)	committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …

Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’).  Errors of law of which it can be said that they would have made no difference to the outcome do not matter.”

	Was the decision of the appeal tribunal in error of law?

12.	In the written application for leave to appeal to the Social Security Commissioner, the appellant has submitted that the decision of the appeal tribunal was in error of law on the basis that he was not present at the oral hearing of his appeal and, accordingly, did not have the opportunity to ‘state his case’.  Further, the appellant submitted that he did not receive ‘… a reminder notice as was the case in previous appeals I attended.’  He submitted, therefore, that his case was decided on paper and ‘… not by fact.’

13.	In the file of papers which is before me is a copy of a Form REG2(i)(d) completed and signed by the appellant on 20 November 2009.  In this form, the appellant has ticked a box indicating that he wished to have an oral hearing of the appeal and requesting TAS to inform him of the date, place and time of the hearing.

14.	As was noted above, the legal officer directed TAS to produce copies of all letters and documentation which were sent to the appellant concerning the date of hearing.  On receipt of the relevant documentation, the legal officer directed TAS to produce details of any procedures whereby an appellant might receive a ‘reminder’ letter concerning the date, time and venue of the oral hearing of his appeal.

15.	The documentation which was produced in response to the request by the legal officer included correspondence dated 8 January 2010 from TAS to the appellant.  In this correspondence the appellant was given details of the date, time and venue of the oral hearing of the appeal.  He was also given further details of what the appeal tribunal hearing would entail and was asked, following consideration of yet more information, to complete a form indicating, inter alia, whether he would be attending the appeal tribunal hearing.  The appellant completed the relevant form on 12 January 2010 and ticked the relevant box to indicate that he would be attending the appeal tribunal hearing.

16.	It is clear, therefore, that the appellant did form an intention to attend an oral hearing of his appeal and communicated that intention to the appeal tribunal.

17.	What happened at the appeal tribunal hearing?  The appellant was not present.  That is confirmed by an entry in the appropriate section of the first page of the record of proceedings for the appeal tribunal hearing.  Thereafter, in the record of proceedings, and the statement of reasons for the appeal tribunal’s decision, there is no reference to the appellant’s stated intention to attend the oral hearing of his appeal or to whether the appeal tribunal gave consideration to his absence from the oral hearing of the appeal.  I shall return to those aspects below.

18.	What happened after the oral hearing of the appeal?  The appellant wrote to TAS about his non-attendance at the oral hearing of the appeal.  In undated correspondence he indicated that he ‘… did not realise that my appeal was to be heard on 3/2/10 as I was awaiting notification from the Appeal Services [sic] of that date following receipt of the attendance letter which I returned to you.  I would like and did request an oral hearing therefore I would like this case to be heard again.’  This correspondence was treated as an application to set aside the decision of the appeal tribunal dated 3 February 2010 under regulation 57 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, and the matter was put before the LQPM of the appeal tribunal in that context.  On 24 March 2010 the LQPM determined that the application to set aside the decision would be refused.  The LQPM gave the following reasons for that refusal:

‘The appellant received notification of the hearing date and completed a form indicating he would attend an oral hearing.  The appellant failed to attend.’

19.	In the documentation which was produced in response to the request by the legal officer was confirmation by TAS that ‘It is not, and never has been, the policy of the Appeals Service to issue ‘reminder’ letters to appellants in respect of their date of hearing.’  I accept this and, accordingly, reject the appellant’s assertion that his non-receipt of a ‘reminder’ notice of the date, time and venue for the oral hearing of his appeal, was contrary to a TAS policy of issuing such ‘reminder’ letters.  In any event, I am wholly satisfied that the appellant knew that the oral hearing of his appeal was to be held on 3 February 2010 at Cleaver House Belfast.  I am unclear as to why the appellant, when the purported ‘reminder’ letter did not arrive, did not clarify with TAS whether or not the oral hearing of the appeal would be likely to proceed.

20.	What concerns me about this issue is the lack of reference, in the record of proceedings for the appeal tribunal hearing, and the statement of reasons for the appeal tribunal’s decision, to the appellant’s stated intention to attend the oral hearing of his appeal or to whether the appeal tribunal gave consideration to his absence from the oral hearing of the appeal.

21.	In circumstances such as arise in the instant case, where an appellant who has previously indicated that he/she wishes to attend an oral hearing of the appeal and who subsequently does not attend, it will be safest and best practice for the LQPM of an appeal tribunal to undertake the following course of action.  Firstly, the LQPM should ask the clerk to the appeal tribunal to ensure that the appellant has not arrived at the appeal tribunal venue and is not inadvertently waiting in a different part of the building.  Secondly, the LQPM should check with the clerk to the appeal tribunal whether, subsequent to the initial notification of an intention to attend, there has been a further notification from the appellant of a change in that intention and/or a request for a postponement or adjournment of the appeal.  Thirdly, the LQPM should confirm the listed time of the appeal hearing with the clerk to the appeal tribunal and should, as part of the case management process, permit an extension of time in order to see whether the appellant does in fact appear at the appeal tribunal venue, albeit late.  If, after that process has been undertaken, the appellant does not attend, the appeal tribunal, as a whole, should give consideration as to whether it is appropriate to proceed in the appellant’s absence, and give consideration as to whether an adjournment should be given in order to permit the appellant to attend.

22.	As I noted in DSS-v-Department for Social Development ((DLA) [2010] NICom 3 C3/10-11(DLA)), in an oral hearing where the appellant has not attended and where the appeal tribunal is considering exercising its judicial discretion to make a decision which is less favourable to the appellant, it is essential that the appeal tribunal is satisfied that an appellant has had sufficient notice of the appeal tribunal’s intention to consider making a decision which is less favourable, which will be likely to involve adjourning the appeal, and providing an appropriate description of the appeal tribunal’s powers and the appellant’s options in light of those powers.

23.	Finally, and most importantly, the LQPM should ensure that a record of the action undertaken is entered into the record of proceedings for the appeal tribunal hearing.  There should, in addition, be a brief reference to the reasons why the appeal tribunal decided to proceed in the absence of the appellant, in the statement of reasons for the appeal tribunal’s decision.

24.	Will the decision of an appeal tribunal be in error of law where, as in the instant case, the record of proceedings and the statement of reasons are silent on the issue of the appellant’s stated intention to attend the oral hearing of his appeal and whether the appeal tribunal gave consideration to his absence from the oral hearing of the appeal?  In my view, much will depend on the circumstances of each individual case.  In the instant case, it is my view that an issue of natural justice arises.  It seems to me that the appellant was entitled to know why the appeal tribunal had made a decision to proceed in his absence when he had signalled a clear intention to attend.  Knowledge of the reasons why the appeal tribunal did proceed might assist the appellant in making a decision as to whether to apply to have the decision of the appeal tribunal set aside under regulation 57 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.

25.	I am conscious that the appellant, subsequent to the appeal tribunal hearing, did make an application to have the decision of the appeal tribunal set aside.  The reasons given by the LQPM for refusing that application might indicate that the appeal tribunal, on the day of the oral hearing of the appeal, did take notice of the appellant’s stated intention to attend and did, once he did not, in fact, appear, give consideration to whether to adjourn the appeal.  Equally, however, it is possible that it was at the setting aside stage that the issue of proceeding in his absence was first considered.

26.	Accordingly, and with a degree of reluctance, based on the appellant’s failure to be more pro-active in clarifying whether the appeal would proceed on 3 February 2010, I find that the decision of the appeal tribunal is in error of law on the basis of the commission or permitting of a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings, and I set the decision aside.

27.	I have noted that in the written observations on the application for leave to appeal, Mrs Hulbert, for DMS supports the application on this ground.

	Disposal

28.	The decision of the appeal tribunal dated 3 February 2010 is in error of law.  Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

29.	I direct that the parties to the proceedings and the newly constituted appeal tribunal take into account the following:

(i)	the decision under appeal is a decision of the Department, dated 20 August 2009, which decided that the applicant was entitled to the lowest rate of the care component of DLA from 17 November 2009 to 16 November 2011;

(ii)	the Department is directed to provide details of any subsequent claims to DLA and the outcome of any such claims to the appeal tribunal to which the appeal is being referred.  The appeal tribunal is directed to take any evidence of subsequent claims to DLA into account in line with the principles set out in C20/04-05(DLA);

(iii)	the appellant will wish to consider what was said at paragraph 77 of C15/08-09(DLA) concerning the powers available to the appeal tribunal and the appellant’s options in relation to those powers;

(iv)	it will be for both parties to the proceedings to make submissions, and adduce evidence in support of those submissions, on all of the issues relevant to the appeal; and

(v)	it will be for the appeal tribunal to consider the submissions made by the parties to the proceedings on these issues, and any evidence adduced in support of them, and then to make its determination, in light of all that is before it.

(signed):  K Mullan

Chief Commissioner

26 July 2011