C3/01-02(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992
SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCAPACITY BENEFIT

	Appeal to a Social Security Commissioner
	on a question of law from a Tribunal's decision
	dated 21 June 2000

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by myself, by the claimant against a decision dated 21st June 2000 of an Appeal Tribunal sitting at D….  The claimant’s grounds of appeal were that an earlier Tribunal had adjourned to enable him to obtain further medical evidence.  The claimant stated that on receiving notification of the second appeal date he had contacted the Tribunal Office and informed them that he did not have any medical evidence to date but was to receive same in the near future.  He then sent a letter to the Appeal Service.  In the claimant’s submission the fact that the second Tribunal had proceeded without medical evidence was a violation of the rules of natural justice.

2.	The earlier Tribunal referred to by the claimant had sat on 3rd May 2000 and had adjourned in order that the appellant be enable to obtain medical evidence from his General Practitioner which was to include certain hospital outpatient letters and a report from his General Practitioner concerning his various medical conditions and the course of investigations.  The investigations referred to related to investigations for blackouts and bowel problems.

3.	The reconvened Tribunal sat on 21st June 2000 and it appears that the claimant telephoned the Tribunal Office on the morning of the hearing to say that he was unable to obtain the desired medical reports and would not be attending the hearing and requested a further adjournment.  

4.	The Tribunal’s record of proceedings indicates that the clerk informed the Tribunal that the appellant had phoned the Tribunal Office that morning and said that he was unable to get his medical evidence and requested another adjournment to obtain same.  He had also said that he was not going to attend the hearing but had been advised to attend.  The Tribunal recorded “no explanation as to why appellant could not obtain the medical evidence.  No explanation as to why he would not attend today’s hearing, particularly when he was advised to do so”.

	In the circumstances Tribunal decided an adjournment was not appropriate.

5.	I can find no mention in the record of proceedings that the Tribunal was in possession of or was informed of the existence of a document dated 16th June 2000 which it appears was faxed to the Tribunal Service Office in Belfast at 9.38am on the morning of the hearing.  The hearing was listed for 10.30am but did not start until 11.20am.  The document dated 16th June 2000 indicated that the claimant had attended his doctor on 16th June 2000 and that the results of the tests already done had not yet been returned (these were the EEG and the upper abdomen scan).  These were recorded on that document as being the reasons why the claimant did not attend the hearing.  He also requested another hearing because he was to be sent for by the hospital as soon as the results of the tests were known.

6.	Mr Fletcher of Decision Making and Appeals Unit of the Department, by letter dated 20th May 2001 supported the appeal on the basis that the Tribunal had not had the document of 16th June 2000 before it and that that document provided some explanation as to why the claimant was unable to furnish the requested medical evidence.  As Mr Fletcher stated there was no indication in the appeal papers that the Tribunal was made aware of the document.  Mr Fletcher therefore submitted that the Tribunal decided to proceed with the hearing on an incorrect premise i.e. that no explanation for the absence of the further medical evidence had been offered.  On that basis i.e. that there appeared to have been a breach of the rules of natural justice in this case Mr Fletcher supported the appeal.

7.	I am in agreement with Mr Fletcher that it does appear that there has been a breach of the rules of natural justice.  This breach was that the Tribunal was not aware of the fact that prior to the hearing an explanation for the absence of medical evidence had been provided.  I would emphasize that the Tribunal is at liberty to proceed in the absence of a claimant and if a claimant is advised to attend a hearing and does not do so he may find that the Tribunal has proceeded.  It would have been better had the claimant attended the hearing as advised and explained his situation.

8.	A Tribunal is also entitled to proceed in the absence of medical evidence, it cannot be expected to adjourn indefinitely.  However, in this case, an earlier Tribunal having adjourned to enable that evidence to be provided and the investigations having been carried out which would have led to the production of the evidence I consider it quite possible that, had the Tribunal had the document of 16th June 2000 before it, or been informed of the contents of that document, the Tribunal would have adjourned.

9.	I consider that there was a breach of natural justice in that the Tribunal was not aware of the contents of the document and proceeded therefore under the factual misapprehension that no explanation for the absence of the medical evidence had been received.  I consider further that the decision of the Tribunal might well have been different had it not been for this misapprehension.

10.	I therefore set the Tribunal’s decision aside on this ground.  I do not consider that this is a case where I can make the decision which the Tribunal should have made.  I therefore remit the matter to a differently constituted Tribunal.  Prior to that Tribunal the claimant should take steps to obtain the medical evidence in question and comply with the terms of the previous adjournment.

MOYA F BROWN
COMMISSIONER

5 JULY 2001