Northern Ireland - Social Security and Child Support Commissioners' Decisions

JG-v-Department for Social Development (ESA) [2015] NICom 61

Decision No: C28/14-15(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 20 January 2014

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1. The decision of the appeal tribunal dated 20 January 2014 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. 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.

 

3. It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of her entitlement to 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

 

4. The decision under appeal to the appeal tribunal was a decision of the decision-maker of the Department, dated 27 March 2012, which decided that as the Department had decided that the appellant did not have limited capability for work her entitlement to incapacity benefit (IB) did not qualify for conversion into an award of ESA from and including 12 April 2012. The appeal was received in the Department on 17 April 2012. On 21 November 2012 the decision dated 27 March 2012 was looked at again but was not changed.

 

5. The background to the listing of the appeal will be discussed in more detail below. An oral hearing took place on 20 January 2014. The appellant was not present. The circumstances surrounding her absence will be discussed in greater detail below. There was no Departmental Presenting Officer present. The appeal tribunal disallowed the appeal and confirmed the Departmental decision dated 27 March 2012.

 

6. On 20 June 2014 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS). On 30 July 2014 the application for leave to appeal was refused by the Legally Qualified Panel Member (LQPM).

 

Proceedings before the Social Security Commissioner

 

7. On 26 August 2014 a further application for leave to appeal was received in the Office of the Social Security Commissioners (OSSC). On 7 October 2014 observations on the application for leave to appeal were sought from Decision Making Services (DMS) and these observations were received on 6 November 2014. In these initial written observations, Mr Donnan, for DMS, opposed the application on the grounds submitted on behalf of the appellant. Written observations were shared with the appellant on 6 November 2014. On 3 December 2014 written observations in reply were received from the appellant which were shared with Mr Donnan on 11 December 2014. On 5 January 2015 a further submission was received from Mr Donnan. In this further submission, Mr Donnan resiled from his earlier position and now supported the application for leave to appeal. The further submission was shared with the appellant on 14 January 2015. On 26 January 2015 a further submission was received from the appellant.

 

8. On 20 March 2015 I granted leave to appeal. In granting leave to appeal, I gave, as a reason that an arguable issue arose as to whether the appeal tribunal was in error in failing to consider whether to adjourn the appeal. I also directed that having considered the papers which were before me, the appeal could properly be decided without an oral hearing. Further correspondence was received from the appellant on 26 March 2015 and 13 April 2015.

 

9. The Legal Officer wrote to the appellant to clarify the nature of the Commissioner's powers should I decide that the decision of the appeal tribunal was in error of law. The appellant was also requested to provide a copy of correspondence which she had submitted to TAS in January 2014. The appellant supplied a copy of the correspondence which was received in OSSC on 30 June 2015 and shared with Mr Donnan by the Legal Officer on 27 July 2015. Mr Donnan provided a further submission on 30 July which was shared with the appellant on 10 August 2015. The file was forwarded to my office in early September 2015. At that stage the appeal had to join a lengthy list of cases awaiting decision. The final decision has been promulgated to the parties at the earliest opportunity since the case was referred to me.

 

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. What is an 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."

 

Analysis

 

12. In his initial written observations, Mr Donnan set out the following background to the listing of the appeal for oral hearing on 20 January 2014:

 

'I note that prior to the hearing in this case, (the claimant) had made four applications for postponement of the hearing ....

 

Details of these applications and the Legally Qualified Member's (LQM's) decision in respect of each one are not available within the appeal papers and so this office has taken the opportunity of requesting copies of same. These have since been provided by the Appeals Service and are enclosed with these observations.

 

It can be seen from these additional papers that in relation to the hearings scheduled for 31/01/13, 25/04/13 and 08/10/13, the LQM decided each time to allow (the claimant's) request for postponement. His decisions are dated 25/01/13, 15/04/13 and 01/10/13 respectively.

 

However, in relation to the fourth application for the hearing due to be held on 20/01/14 to be postponed; the LQM refused this application on 08/01/14 and directed that the appeal should proceed. A copy of the letter notifying (the claimant) of this decision is also enclosed - dated 10/01/14. It confirms that this was issued to her address of ...

 

(The claimant) was therefore given appropriate notice of this latter decision and of the fact that the appeal hearing would continue to be held on 20/01/14 at 2.30 p.m. The Record of Proceedings shows that she did not attend the hearing however.'

 

13. I have copies of all four applications for postponement which were made by the appellant. The first application was received on 23 January 2013. The stated reason for seeking the postponement was:

 

'I am waiting on information which I had requested from ...'

 

14. The application for postponement was granted by the LQPM on 25 January 2013. The second application for a postponement was received on 9 April 2013. On this occasion the stated reason for seeking the postponement was:

 

'Papers requested under Data Protection Act 1998 to date have not been received and are needed for hearing.'

 

15. The application for postponement was granted on 15 April 2013. The third application for a postponement was received on a date after 22 September 2013. The stated reason for seeking the postponement was similar to that for the second application. The application for postponement was granted on 1 October 2013.

 

16. The final application for postponement was received on 2 January 2014. On this occasion the stated reason for seeking the postponement was:

 

'I still do not have the papers I requested to build my case.'

 

17. This application for postponement was placed before an LQPM on 8 January 2014. On this occasion the LQPM determined that that the application for postponement should be refused and that the appeal should proceed. I would note that I find no fault with the determination of the application by the LQPM. I am assuming that the LQPM had before him the history of the postponements and the decision to refuse the application in light of that background is wholly rational. The appellant was informed of the determination by the LQPM on 10 January 2014 and was also informed that the oral hearing of the appeal would continue on 20 January 2014.

 

18. In his further submission dated 5 January 2015 Mr Donnan has set out the following:

 

'In light of (the claimant's) latest submission regarding the stance she took in not attending the oral hearing, I would refer the Commissioner to a Northern Ireland decision of Commissioner Mullan in C37/08-09(DLA). I apologise for not raising this in my original observations, but it was only through (the claimants) raising this point that led me to discover this decision in my research.

 

Commissioner Mullan held that where an application for postponement has been refused, then a failure to attend the oral hearing by the appellant must be treated as an application for adjournment. In that case - because the tribunal failed to consider an application for adjournment, he held that it had erred in law. I would refer to the following extracts from C37/08-09(DLA):

 

28. In CDLA/3680/97, consideration was given to the relationship between postponement and adjournment by a Commissioner in Great Britain. In that case, there had also been an unsuccessful application for a postponement of a listed oral hearing of an appeal. The appellant neither appeared nor was represented at the subsequent oral hearing of the appeal. The appeal tribunal proceeded in the absence of the appellant. Commissioner Rowland stated the following, at paragraphs 3 to 5:

 

'3. I appreciate that chairmen and tribunals are under pressure to resist applications for postponements and adjournments because they have financial implications for the Independent Tribunal Service. No doubt there are many such applications that can properly be refused, but the overriding consideration must be the requirements of justice...

 

4. When the case came before the tribunal, they had to consider whether they should determine the case before them in the absence of the claimant. That is an issue that always arises when a claimant does not appear. It will seldom detain a tribunal for long if the claimant has not asked for a postponement and, indeed, I would not usually regard a tribunal as having erred in law if no mention is made in their decision of any consideration of adjourning because there will not usually be the slightest reason why a tribunal should adjourn a case merely because a claimant has failed to appear. However, different considerations arise where a request for a postponement has been made. The fact that it may have been considered and refused by a chairman does not relieve the tribunal of the responsibility of considering whether to adjourn the proceedings. In effect, a claimant who has failed to attend a hearing following a refusal of a postponement must be taken to have renewed that application to the tribunal. Of course, the fact that a postponement has already been refused is a material fact the tribunal can take into account when considering whether to adjourn the case, as can any comment made by the chairman when refusing the postponement which should have prompted the claimant to attend, but a chairman's refusal will not always be conclusive, particularly if the claimant has had little time to act upon it. The tribunal is faced with the new fact that the claimant has actually failed to attend, whatever the hopes of the chairman might have been, and they are likely to have a greater grasp of the background to the case than a chairman considering the question of a postponement on an interlocutory application. Furthermore, if they proceed, they may have to consider what inferences to draw from the failure of the claimant to attend.

 

5. Therefore, where there has been an unsuccessful application for a postponement, the question whether the case should be adjourned must be considered afresh by the tribunal ...'

 

Commissioner Mullan then considered a decision of NI Commissioner Brown:

 

29. The decision in CDLA/3680/97 was considered by Commissioner Brown in C5/01-02(IB). At paragraph 5, Commissioner Brown held that CDLA/3680/97 was authority for the principle that:

 

'...non-attendance following refusal of a postponement application must be taken as a renewal of that application.'

 

30. In the present case there was an unsuccessful application for a postponement of the oral hearing prior to the listed date. On the listed date, the appellant did not attend the oral hearing and was not represented. On the basis of the principles in CDLA/3680/97, as confirmed in C5/01-02(IB), the non-attendance must have been taken as a renewal of that application, and the prior consideration of the postponement application by the LQPM did not relieve the tribunal of the responsibility of considering whether to adjourn the proceedings. The appeal tribunal was under a duty to consider afresh an application for an adjournment.

 

Commissioner Mullan concluded at paragraph 34 of his decision:

 

34. I am satisfied that the failure to indicate that it had considered an application for an adjournment, and to state its conclusions on that application, amounted to an irregularity capable of making a material difference to the outcome or the fairness of proceedings.

 

I have enclosed a copy of this decision in full. In light of my recent discovery of this case law, I would resile from my earlier observation that I would not support (the claimant's) application for leave. It appears to me that her circumstances would be the same as the appellant in C37/08-09(DLA). Namely, that the tribunal in this case was similarly under a duty to consider an application for adjournment and in failing to do so, its decision was reached in light of a procedural irregularity which may have made a material difference to the outcome or fairness of (the claimant's) appeal.'

 

19. I would note, at this stage, that the appellant wrote to TAS on 15 January 2014. A copy of the relevant correspondence is in the file of papers which is before me. The appellant's correspondence of 15 January 2014 was in response to the notification sent to her on 10 January 2014 that her fourth application for a postponement of the oral hearing had been refused and that the oral hearing would proceed on 20 January 2014. In her correspondence of 15 January 2014 the appellant makes a further reference to her requests for information which she considered to be essential for her appeal and then stated:

 

'The failure to provide the above mentioned information and documentation has left me in a position in which I cannot prepare and effectively present my case to the Appeal Tribunal on 20 January 2014. To present my case under the above circumstances would place me at a substantial disadvantage when compared to the other party. Equally so, I believe the insistence of the Appeals Service that the appeal hearing continue on 20 ^th January 2014 has impacted on my rights to a fair hearing and is breach of Article 6 ECHR.'

 

20. In the file of papers which is before me is a copy of the record of proceedings for the appeal tribunal hearing. The appellant was not present at the oral hearing which, in light of the pre-hearing correspondence, is not unsurprising. There was no Departmental Presenting Officer present. Thereafter, the record of proceedings consists of the straightforward statement that the appeal tribunal considered the Department's written submission.

 

21. In the file of papers which is before me there is also a copy of the statement of reasons for the appeal tribunal's decision. It is thorough and detailed and addresses the substantive issues arising in the appeal. Unfortunately, however, it does not set out whether the appeal tribunal, as it was mandated to do so by the principles which were set out by me in paragraphs 28 to 34 of C37/08-09(DLA), considered whether to adjourn the proceedings. Based on the decision of Mrs Commissioner Brown in C5/01-02(IB), the non-attendance of the appellant had to be considered as a renewal of the failed application for a postponement, but at this stage as a parallel application for an adjournment. As was noted by Mrs Commissioner Brown in paragraph 30 of her decision:

 

'... the prior consideration of the postponement application by the LQPM did not relieve the tribunal of the responsibility of considering whether to adjourn the proceedings. The appeal tribunal was under a duty to consider afresh an application for an adjournment.'

 

22. It might well be the case that the appeal tribunal did consider the adjournment issue. If it did so then it must have refused such an application. It was then under an obligation to set out in the statement of reasons for its decision, its reasons for that refusal so that the appellant could understand why the appeal tribunal decided to proceed in her absence given her clear objection, in her correspondence of 15 January 2014, to any such course of action.

 

23. Accordingly, as in C37/08-09(DLA), I am satisfied that the failure to indicate that it had considered an application for an adjournment, and to state its conclusions on that application, amounted to an irregularity capable of making a material difference to the outcome or the fairness of proceedings. The decision of the appeal tribunal is, therefore, in error of law and I set it aside. I do so with a large degree of reluctance given the appeal tribunal's careful and judicious consideration of the substantive issues arising in the appeal.

 

Disposal

 

24. The decision of the appeal tribunal dated 20 January 2014 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.

 

25. 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 27 March 2012, in which a decision-maker decided that the appellant did not have limited capability for work and, accordingly, her award of IB did not qualify for conversion to ESA from and including 12 April 2012.

 

(ii)        The Department is directed to provide details of any subsequent decision-making activity in connection with 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 into account in line with the principles set out in C20/04-05(DLA).

 

(iii)       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 must ensure that in advance of the further appeal tribunal hearing she has collated all of the information and paperwork which she considers to be relevant to the appeal in order that there are not further postponements or adjournments of the appeal.

 

(iv)       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

 

 

 

16 November 2015