KJ-v-Department for Social Development (II) [2011] NICom 242
Decision No:  C4/11-12(II)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INDUSTRIAL INJURIES DISABLEMENT BENEFIT

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 19 November 2010

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	Having considered the circumstances of the case, 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 19 November 2010 is in error of law.  The error of law identified will be explained in more detail below.  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.  An appeal tribunal which has a medically qualified panel member is best placed to assess medical evidence and address medical issues arising in an appeal.  Further, there may be further findings of fact which require to be made and 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 industrial injuries disablement benefit (IIDB) 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 6 May 2010 the appellant was examined by a Departmental medical adviser in connection with entitlement to IIDB.  On 13 May 2010 a decision-maker of the Department decided that (i) the appellant was suffering from a loss of faculty as a result of a relevant accident (ii) the relevant loss of faculty was impaired psychological function (iii) the degree of disablement was 2% (iv) the period of assessment commenced on 1 November 2009 and continued for life and (v) the assessment was final.  There was an error in both the original decision notice and the notification letter which was forwarded to the appellant on 19 May 2010.  These errors were rectified by the forwarding of a further notification letter to the appellant on 1 July 2010.  On 26 May 2010 the appellant, through a telephone call, requested an explanation of the decision.  A statement of reasons for the decision was forwarded to the appellant on 29 June 2010.  On 2 June 2010 a letter of appeal against the decision dated 13 May 2010 was received in the Department.  On 29 June 2010 the appellant was advised that the Department had reconsidered but not changed the decision dated 13 May 2010.

6.	The appeal tribunal hearing took place on 19 November 2010.  The appellant was not present at the oral hearing of the appeal.  The record of proceedings notes that the appellant was notified of the date, time and venue of the oral hearing on 19 October 2010 and that the appellant had replied to state that he would attend at 09.45.  The record of proceedings also indicates that the appellant was ‘still absent’ at 10.20 and that the appeal tribunal had decided to proceed in his absence at 10.20.  In the statement of reasons for the appeal tribunal’s decision it is noted that:

‘We decided to proceed in his absence as he had clearly received the notice of hearing and had not been in touch to request an adjournment or postponement.’

7.	In fact, in the papers which are before me, is a copy of a completed form, signed and dated by the appellant on 1 November 2010, and received in the Appeals Service (TAS) on 8 November 2010, in which he indicates that he is unable to come to the oral hearing and consenting to the appeal tribunal proceeding in his absence.  The appellant also indicates that he has enclosed a letter which he wished the appeal tribunal to consider.

8.	The appeal tribunal disallowed the appeal and confirmed the decision dated 13 May 2010. On 10 February 2011 an application for leave to appeal to the Social Security Commissioner was received in TAS from the appellant’s representative, Ms Kyne of the Citizens Advice Bureau.  On 17 February 2011 the application for leave to appeal was refused by the legally qualified panel member (LQPM).

	Proceedings before the Social Security Commissioner

9.	On 10 March 2011 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 21 April 2011 written observations on the application for leave to appeal were sought from Decision Making Services (DMS).  In these initial written observations, Mr Hinton, for DMS, supported the application on one of the grounds cited in the application.  Written observations were shared with the appellant and his representative on 24 May 2011.  On 29 June 2011 Mr Hinton was requested to provide a further submission on the applicability of the decision of the Tribunal of Social Security Commissioners in Great Britain in CSDLA/500/2007 to the issues arising in the present appeal.  The further written submissions were received on 7 July 2011.  In addition to commenting on the question which was directed to him, Mr Hinton indicated that he also wished to resile from the support which he had given to the application in his first written submissions.  The further observations were shared with the appellant and his representative on 20 October 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.”

	Why was the decision of the appeal tribunal in error of law?

12.	In the application for leave to appeal, Ms Kyne submitted that the decision of the appeal tribunal was in error of law, inter alia, on the basis that the appeal tribunal had not considered a further letter submitted to it by the appellant on 1 November 2010 and, further, had not addressed a specific contention raised by the appellant in his letter of appeal.  The letter dated 1 November 2010 was the letter, already referred to above, which the appellant had attached to the form in which he had indicated that he would not be attending the oral hearing of the appeal.  The specific contention that the appellant had raised in his letter of appeal was that he could not read the report of the Departmental medical adviser which had been utilised in the decision-making process giving rise to the appeal.

13.	In the initial written observations on the application for leave to appeal, Mr Hinton submitted that:

‘(The claimant) then stated that he could not read the handwriting contained within the report.  In the statement of reasons the tribunal whilst accepting the conclusions of Dr Mariswamy’s report upholding the Department’s decision has not made reference concerning (the claimant’s) complaint about the legibility of the report.  In reported decision R3/01(IB)(T) a Tribunal of Commissioners dealt with issues raised by a claimant in his letter of appeal.  I would refer to paragraphs 19 and 20 of this decision which state:

“19.  In general terms we would recommend to Tribunals the practice of identifying the issues which are specifically and expressly or by clear implication raised by the appeal letter…”

“20.  Whether or not a Tribunal accepts a claimant’s representations on an Examining Doctor’s report, whether it considers that any further information is necessary or whether an Examining Doctor should be asked for comment are all matters within a Tribunal’s province and a Tribunal has considerable discretion in this matter.  However, here it appears that issues raised expressly by the claimant were ignored.  It may be that in this case the Tribunal did not place any reliance whatsoever on the Examining Doctor’s report.  It may be that it rejected the claimant’s contentions.  We have no means of knowing.  We consider that in this case, when such very specific issues in relation to the report have been raised, the Tribunal should have commented on them in some manner.  We set the decision aside for the reason that it did not deal with this issue and the decision was not therefore understandable.”

It is quite clear that the statement of reasons made no reference to (the claimant’s) contentions regarding the legibility of the report and it would appear the tribunal did not deal with them.  Consequently the tribunal’s failure to give this issue adequate consideration renders its decision erroneous in law.’

14.	In the further written observations, forwarded on 7 July 2011, Mr Hinton submitted, however, that:

‘Whilst in my original submission I had submitted that the tribunal has erred in law in failing to deal with (the claimant’s) contention regarding the legibility of the examining doctor’s report I now wish to resile from this argument.  Subsequent to his appeal against the Department’s decision, where (the claimant) raised this issue, the Department sent out a letter which clearly outlined the findings of the doctor’s report (tab 9 of scheduled documents).  It is now my submission that this letter would have clearly explained to (the claimant) why disablement benefit was no longer payable.  The tribunal in its statement of reasons explicitly accepted the conclusions of Dr Maiswamy and the findings contained within the report therefore there was no need for it to specifically address the issue of the legibility of the report.  Furthermore as (the claimant) was aware of the reasons for disallowing his award of disablement benefit he would not have suffered any disadvantage during the course of his appeal.’

15.	I agree with Mr Hinton that the decision of the Tribunal of Commissioners in R3/01(IB)(T) is authority for the proposition that where a specific issue is raised in connection with a report of a Departmental medical officer/adviser which has formed part of the decision-making process giving rise to the appeal, that issue has to be addressed by the appeal tribunal, and the statement of reasons for the decision of the appeal tribunal must make it clear that it has addressed that issue.  Where I disagree with Mr Hinton, with respect, is in his further submission that the summary of the conclusions of the relevant medical report, forwarded to the appellant together with the statement of reasons for the Departmental decision, cured the cited defect of illegibility.

16.	There is a copy of the relevant report in the papers which are before me.  The report was completed by the Departmental medical adviser in his own hand-writing.  I am certain that the appellant was not provided with the original hand-written copy but with a photocopy of the report.  If the photocopy of the report which the appellant was received was of the same quality as the one which is in the papers which are before me then I can understand why the appellant submitted that it was illegible.  In certain places it is illegible.

17.	I accept that the Department endeavoured to provide the appellant with a summary of certain relevant sections of the medical report.  What is not clear, however, is whether there were aspects of the medical examination with which the appellant was dissatisfied and the record of which was not summarised in the typewritten synopsis subsequently provided to him.  The appeal tribunal accepted the report of the Departmental medical adviser in arriving at its conclusion that there had been an improvement in the appellant’s medical condition since the date of the previous assessment.  The appellant indicated, in the further correspondence dated 1 November 2010 that there had been no relevant change in his circumstances.  The appellant was not given an effective opportunity to challenge the entirety of the medical report as he had not been in a position to read that report.  Accordingly, I conclude that the decision of the appeal tribunal, in failing to address an issue specific to the appeal, is in error of law.

	The appellant’s other grounds for appealing to the Social Security Commissioner

18.	Having found that the decision of the appeal tribunal is in error of law on the basis of the analysis set out above, I do not have to consider the appellant’s other grounds for appealing.  I would indicate, however, that I would not have found the decision of the appeal tribunal to be in error of law on the other grounds cited by the appellant’s representative and would agree with the written observations of Mr Hinton on those other grounds.

	Disposal

19.	The decision of the appeal tribunal dated 19 November 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.

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 13 May 2010 in which a decision-maker of the Department decided that (i) the appellant was suffering from a loss of faculty as a result of a relevant accident (ii) the relevant loss of faculty was impaired psychological function (iii) the degree of disablement was 2% (iv) the period of assessment commenced on 1 November 2009 and continued for life and (v) the assessment was final;

(ii)	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.  In this regard, the appellant’s representative may wish to make submissions concerning the contents of the report of the Departmental medical adviser dated 6 May 2010; and

(iii)	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

3 January 2012