MM-v-Department for Communities (ESA) [2017] NICom 27

Decision No: C16/16-17(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 7 March 2016

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 7 March 2016 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.

2.	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.

3.	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 the support component of Employment and Support Allowance (ESA) 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 7 August 2015 a decision maker of the Department decided that the appellant was entitled to ESA as he had limited capability for work but was not entitled to the support component of ESA as he did not have limited capability for work-related activity.  An appeal against the decision dated 7 August 2015 was received in the Department on 20 October 2015.  On 15 December 2015 the decision dated 7 August 2015 was reconsidered but was not changed.

6.	The appeal tribunal hearing took place on 7 March 2016.  The appellant was not present.  The background circumstances for his non-attendance at the oral hearing are set out in more detail below.  There was no Departmental Presenting Officer present.  The appeal tribunal disallowed the appeal and confirmed the decision dated 7 August 2015.

7.	On 25 May 2016 correspondence was received in the Appeals Service (TAS) from the appellant’s mother.  In this correspondence the appellant’s mother sought to challenge the decision of the appeal tribunal.  On 26 May 2016 the clerk to TAS wrote to the appellant’s mother indicating that a valid application for leave to appeal to the Social Security Commissioner needed to be signed by the appellant or his authorised representative.  A further application for leave to appeal, signed by the appellant, was subsequently received in TAS.

8.	On 4 July 2016 the application for leave to appeal was refused by the Legally Qualified Panel Member (LQPM).

	Proceedings before the Social Security Commissioner

9.	On 9 August 2016 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 13 September 2016 observations on the application for leave to appeal were requested from Decision Making Services (DMS).  In written observations received on 11 October 2016, Ms Lovell, for DMS, supported the application.  Written observations were shared with the appellant on 12 October 2016.  On 3 November 2016 correspondence was received from the appellant’s mother.

10.	On 12 January 2017 I accepted the late application for special reasons.  On 15 March 2017 I granted leave to appeal.  In granting leave to appeal I gave, as a reason, that it was arguable that the determination of the appeal tribunal to proceed in the appellant’s absence amounted to a breach of natural justice.

	Errors of law

11.	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.  What is an error of law?

12.	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.”

	The error of law in the instant case

13.	The appeal was listed for an oral hearing.  The clerk to TAS has indicated that the ESA Appeals Officer, as a party to the proceedings, had asked for an oral hearing of the appeal.  The clerk also noted that the appellant had not replied to the ‘hearing type’ enquiry.

14.	In the record of proceedings for the appeal tribunal hearing, the following was recorded:

‘Appellant not in attendance.  He has been notified to [appellant’s home address] on 10 February 2016.  No reply has been received.  Citizens Advice Bureau have also been notified and no reply has been received.  The case was listed for 10.30 am.  The panel considered the written submissions and decided to proceed with the appeal in the absence of the Appellant.  Panel proceeded with this case shortly after 10.45 am as it appeared that the Appellant was not going to attend.  The panel was satisfied that sufficient information and evidence was available to enable a decision to be made.’

15.	In the statement of reasons for the appeal tribunal’s decision, the following is recorded:

‘The appeal hearing was listed for 7 March 2016.  The appellant and his Representative were properly notified of the date of hearing.  There was no prior indication from either the Appellant or his Representative of an intention to attend.  Neither the appellant or his Representative attended on the day of the hearing and no information was provided to the Tribunal of an inability to attend.  The Tribunal considered the material which was available in the written submissions and decided that sufficient information was available to enable a decision to be made.  In the circumstances the panel proceeded with the appeal in the absence of the Appellant.’

16.	I would note, at this stage, that I find no fault with the manner in which the appeal tribunal proceeded on the day of the appeal tribunal hearing.  The appeal tribunal’s determination to proceed in the appellant’s absence was wholly justified on the basis of the circumstances pertaining on the day of the appeal tribunal hearing and in light of the information which was at that stage available to the appeal tribunal.

17.	That is not the end of the matter, however.  In the application for leave to appeal which was subsequently received in TAS the appellant set out the following ground of appeal:

‘On the morning of the appeal I was too ill to attend.  The hearing went ahead without me being present and I believe that this breached my right to a fair trial.’

18.	The application and this ground of appeal were placed before the LQPM.  As was noted above, the LQPM refused the application.  It is somewhat surprising that the LQPM refused the application without suggesting that further enquiries were made of the appellant concerning the nature of his illness, the reasons why no contact was made with TAS to indicate an inability to attend and whether corroborative evidence was available to confirm the relevant circumstances.  I query that because, as was noted above, one of the reasons given by the appeal tribunal for its decision to proceed in the appellant’s absence was that ‘… no information was provided to the Tribunal of an inability to attend.’  While that was correct as of the date of the hearing, the additional information about an inability to attend provided in the application for leave to appeal should, in my view, have put the LQPM on alert as to a potential breach of the rules of natural justice.

19.	In any event, the application was refused but is now renewed before me.  In C22/00-0(IB), Commissioner Brown stated the following, at paragraphs 13 to 15:

‘13.	I am impressed and influenced by the fact that while there may be some confusion between the 27th and 29th September the doctor did see the claimant either shortly before or on the day of the Tribunal and advised her that she was not fit to attend.  It is unfortunate and the claimant is to be faulted in that she herself did not advise the Tribunal of this but appears to have left the matter to her doctor.  Nonetheless, in the light of the doctor’s statement and of his having seen her so close to the time of the Tribunal I must accept that the claimant was unfit to attend the Tribunal.

14.	I must therefore ask myself whether or not there was a breach of the rules of natural justice in the Tribunal, albeit unwittingly and without fault, deciding to proceed in this case.  The claimant had obviously had numerous chances of attending a Tribunal and had not attended and it is obvious that a Tribunal cannot endlessly adjourn.  Sooner or later a decision must be made.  However, in light of the fact that the claimant’s condition was likely to improve so that she could attend and indeed it appears that it did improve, I am of the view that the Tribunal in all probability would have adjourned had it known the circumstances which I now know.  I should state that if I was dealing simply with a situation of a claimant informing her doctor after the Tribunal that she had been ill and was unable to attend I would have been less impressed.  It is the evidence from the doctor of attendance on either the 27th or 29th September 1999, before the Tribunal and his express contemporaneous advice that the claimant was unfit to attend, which impresses me.

15.	With hindsight therefore and without faulting the Tribunal I set the decision aside as in error of law …’

20.	In the instant case, and despite what was not obviously stated by the LQPM in the refusal of the application for leave to appeal, I am of the view that had the appellant, on or shortly before the appeal tribunal hearing date, made TAS and/or the appeal tribunal aware of the reasons why he would be unable to attend the appeal tribunal hearing, and emphasised his desire to be present to give oral evidence, then the appeal tribunal in all probability would have adjourned.  I have no reason to doubt that the appellant was genuinely unable to attend the oral hearing due to ill-health.  I have the advantage of now having corroborative evidence from his mother of that fact, as set out in her correspondence to my office received on 4 November 2016.  I also have her apologies for failing, on the day of the oral hearing, to contact TAS to alert the appeal tribunal to the relevant circumstances.

21.	There has been an inadvertent breach of the rules of natural justice and the decision of the appeal tribunal is set aside.

	Disposal

22.	The decision of the appeal tribunal dated 7 March 2016 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.

23.	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 7 August 2015, in which a decision maker of the Department decided that the appellant was entitled to ESA as he had limited capability for work but was not entitled to the support component of ESA as he did not have limited capability for work-related activity;

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

(iii)	the appeal is to be listed for an oral hearing.  The appellant and any family member or representative must make every effort to attend the oral hearing and, in the event of an inability to do so, must alert TAS at the earliest opportunity.  It is in the interests, however, of the appellant for the appeal to be determined;

(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

31 May 2017