CP-v-Department for Social Development (ESA)[2012] NICom 294
Decision No:  C13/11-12(ESA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

EMPLOYMENT AND SUPPORT ALLOWANCE

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 18 March 2011

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal from the tribunal sitting at Belfast on 18 March 2011, leave having been granted by the legally qualified member of the tribunal on 15 September 2011.

2.	An oral hearing of the appeal has not been requested.  I am satisfied that the proceedings can properly be determined without a hearing.

3.	I allow the appeal and remit it to a newly constituted tribunal for determination.

	REASONS

	Background

4.	The appellant claimed and was awarded employment and support allowance (ESA) from and including 28 January 2010 on the basis of “diarrhoea (under investigation)”.  On 2 June 2010 the appellant completed a questionnaire indicating problems with the physical descriptor of “Continence” under paragraph 10(a) of Schedule 2 to the Employment and Support  Allowance Regulations (NI) 2008, and with the mental descriptor of “Coping with social situations” under paragraph 19 of the same Schedule (arising from anxiety about loss of bowel control in public).

5.	On 4 September 2010, following a receipt of a report from a medical examination conducted by a healthcare professional of the Department on 9 July 2010, the Department determined that the appellant did not have limited capability for work.  The Department gave a decision superseding her entitlement to ESA from and including 13 September 2010.

6.	The appellant appealed to a tribunal but did not request an oral hearing.  The appeal was heard as a “paper hearing” (that is, without oral evidence) and disallowed on 18 March 2010.  On 24 March 2011 the appellant requested a statement of reasons for the tribunal’s decision.  This was issued to her on 9 August 2011.  On 29 August 2011 the appellant applied to the legally qualified member of the tribunal for leave to appeal to the Social Security Commissioner.

7.	Her application was grounded primarily on the basis that a written submission sent by her to the tribunal on 3 February 2011 was not referred to in the record of proceedings.  She enclosed a copy of that submission.  This was to the effect that while she had been assessed incorrectly as she experienced full evacuation of the bowel at least three times each month, she indicated that her condition was still under investigation and that she was awaiting further medical appointments.

8.	The legally qualified member granted the application for leave to appeal on 15 September 2011.  His reasons for granting leave are that “it would appear that the tribunal did not have before it the written submission from the appellant”.

9.	The appellant’s appeal was received in the Office of the Social Security Commissioners on 7 November 2011, although dated 10 October 2011.  It was considered to be out of time, but by a determination of 18 January 2012 the Chief Commissioner accepted the late appeal under regulation 13(2) of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999.

	Submissions

10.	The grounds submitted by the appellant are that:

	(i)	the document submitted by her was not before the tribunal and by implication the tribunal made a decision based on a misunderstanding of her circumstances.

11.	On 18 January 2012 the Department was invited to make observations on the appeal.  Mr McKendry has responded on behalf of the Department.  He submits that:

(i)	if the tribunal had not considered the written submission sent to it by the appellant, it had not complied with the principles of natural justice;

(ii)	the appellant’s submissions suggested that she had not fully understood the term “full evacuation” of the bowel as opposed to leakage when addressing the relevant physical descriptor;

(iii)	although the tribunal did not apply the mental health descriptors, Upper Tribunal decisions CE/3002/10 and CE/1222/10 suggested that paragraph 19 of Schedule 2 to the ESA Regulations may have been applicable.

12.	On this basis Mr McKendry supported the appeal and suggested that it should be remitted to a newly constituted tribunal for redetermination.

	Preliminary matter

13.	The ground on which the legally qualified member granted leave to appeal was that the appellant’s submission was sent to the tribunal but was not considered by it while deciding the appeal.  This has led to the present proceedings, which are relatively prolonged in nature because of the procedural requirements laid down by the Social Security Commissioners (Procedure) Regulations (NI) 1999.

14.	It occurs to me that the legally qualified member was also entitled to consider the matter under the alternative and equally relevant provision of regulation 57(1)(a) of the Social Security and Child Support (Decisions and Appeals) Regulations (NI) 1999.  By this, a legally qualified member may set aside a decision of an appeal tribunal on specific grounds.  One of these is that a document relating to the proceedings in which the decision was made was not received at an appropriate time by the person who made the decision.  The power to make a decision to set aside a tribunal decision is qualified by a requirement that it appears just to do so.

15.	The acceptance that the appellant’s submission was not received suggests that a more expeditious way to deal with this matter might have been for the legal member to set the tribunal decision aside.

16.	The regulation governing setting aside requires “an application made by a party”.  In this case, the appellant was not (in common with many applicants) displaying an informed knowledge of the relevant regulations when she wrote her letter saying “I now wish to appeal on the following grounds”.  The options open to her were to make an application for leave to appeal to the Social Security Commissioner or to apply for setting aside of the tribunal decision.

17.	Often, the application to the legal member will be expressed sufficiently broadly to encompass a setting aside application.  In other instances this might require a legally qualified member to flag up the possibility to a prospective applicant.  Nevertheless, in appropriate cases, I would commend the pragmatic practice of giving consideration to setting aside where a grant of leave to appeal is being contemplated and the circumstances overlap with the statutory grounds for setting aside.

18.	In saying this, I am echoing what former Chief Commissioner Martin said in C5/05-06(IB) at paragraph 12 – a case where a claimant did not attend a hearing and subsequently indicated that she had not received notice of hearing:

“Accordingly it seems to me that there now is “concurrent jurisdiction” to deal with circumstances, such as those in the present case, in that either a Commissioner can deal with the case as a point of law or the legally qualified member can set the decision aside.  This is the approach recommended by Mr Commissioner Williams at paragraph 53 of CDLA 5413/1999 which I have quoted at paragraph 9 herein.  (The equivalent of the Great Britain section 13(2) of the Social Security Act 1992 referred to by the Commissioner is Article 14(2) of the Social Security (Northern Ireland) Order 1998 while regulation 57 of the Decisions and Appeals Regulations in both jurisdictions are similar.) In clear cases I would commend the second approach, namely, the setting aside by the legally qualified member, as taking proceedings to the Commissioner level seems to be somewhat unsatisfactory and unnecessary… ”.

	Assessment

19.	The parties are in agreement that the fact that the tribunal proceeded to determine the appeal without consideration of the appellant’s written representations is a breach of the rules of natural justice.

20.	The House of Lords has stated that a key principle of procedural fairness is that a person who may be adversely affected by a decision will have an opportunity to make representations on his own behalf (R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531).

21.	In the context of appeal tribunals, the principles of natural justice were articulated by the GB Tribunal of Commissioners in R(S)4/82 at paragraph 26 as “an absence of personal bias or mala fides on the part of the tribunal, an obligation to base their decision on evidence, and, whether or not there was an oral hearing, to listen fairly to the contentions of all persons entitled to be represented”.

22.	In the present case, the applicant has not availed of her right to request an oral hearing.  Nevertheless she sought to influence the determination of her appeal by making written submissions.  Such written submissions are routinely placed before tribunals.  She was entitled to expect that the particular written submissions sent to the Appeals Service would be placed before the tribunal considering her appeal.

23.	The tribunal knew nothing about the written submissions.  It was therefore not at fault in any way in proceeding to determine the appeal without them.  Nevertheless, its decision is made in the face of the appellant’s legitimate expectation that her submissions would be considered by the tribunal.  I consider that the fact that the submissions were not considered is enough in itself to compromise natural justice, whether or not the tribunal knew of them.

24.	I agree with the parties that the tribunal decision is erroneous in point of law for this reason.

	Was this a material error?

25.	The gist of the appellant’s submissions is that as well as experiencing urgency in relation to bowel control, she would lose control amounting to the full evacuation of her bowel at least three times per month.  If this is substantiated, although there may be a question over what the appellant understands to be full evacuation of the bowel, then it is material to the decision of the tribunal.  I consider that it was therefore a material error of law.

	Further issue

26.	A further issue has been identified by Mr McKendry.  He notes that the tribunal has only had regard to the physical descriptor of “Continence”.  The tribunal noted the appellant’s statement relevant to the “Coping with Social Situations” descriptor – a mental health descriptor.  The tribunal considered that there was no evidence of any problem with mental health and discounted the applicability of this descriptor.

27.	Mr McKendry points to GB Commissioner’s decisions CE/3002/10 and CE/1222/10.  The Upper Tribunal judges in these cases found that there was no partitioning in the legislation requiring mental health descriptors only to be scored in relation to mental health conditions.  This is an important difference between the rules applying to ESA when compared with the previous incapacity benefit regime.  Mr McKendry therefore submits that the tribunal failed by not considering whether the “Coping with Social Situations” descriptor may have been applicable.

28.	I do not need to determine this issue in the present appeal and I do not propose to do so in the absence of oral argument.

	Conclusions

29.	I allow the appeal and I set aside the decision of the appeal tribunal of 18 March 2011.

30.	I remit the case for determination by a newly constituted tribunal.

31.	I direct that the Department shall prepare a further submission, dealing with GB Commissioners’ decisions CE/3002/10 and CE/1222/10.

32.	I direct that the appeal shall be listed as an oral hearing, in order for the appellant to have the opportunity to give evidence and to explain and amplify her written submission.

33.	I cannot and do not direct the appellant to attend.  However, I observe that it is generally to the advantage of an appellant to attend an oral hearing where the appellant, as here, bears the burden of proof.

(signed):  O Stockman

Commissioner

31 May 2012