[2006] NISSCSC C1_06_07(IB) (03 August 2006) 

Decision No: C1/06-07(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 16 September 2005

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant, with the leave of a Commissioner, against the decision of the tribunal affirming a decision of a decision-maker to the effect that the claimant has not shown good cause for failing to provide the evidence requested by the Department on 26 April 2005.  As a result a decision awarding incapacity benefit (IB) was superseded and the claimant was treated as capable of work and therefore not entitlement to IB from and including 9 June 2005.

2.	Alderman David Simpson MP MLA represents the claimant while Mr Simon Sloan of Decision Making Services represents the Department.   Having considered the circumstances of the case and any reasons put forward in the request for a hearing, I am satisfied that the appeal can properly be determined without a hearing.

3.	The claimant became unfit for work on 2 September 2004 and was paid statutory sick pay up until 30 December 2004.  She claimed and was awarded IB from 31 December 2004 by reason of tendonitis.   The personal capability assessment applied from 25 March 2005.  In order to determine capacity for work, the claimant was requested to complete an IB50 questionnaire form giving details of how her illness affected her ability to perform various activities.  The questionnaire was issued to the claimant on 26 April 2005.  The claimant was informed that the questionnaire was to be returned by 8 June 2005 and that failure to do so could result in her benefit being disallowed.  A reminder was issued informing the claimant to return her questionnaire by 8 June 2005.  The letter also stated that if she failed to do so benefit may stop.  As no reply was received by 8 June 2005 the decision awarding IB was superseded.  The claimant was treated as capable of work and therefore not entitled to IB from and including 9 June 2005.  The claimant appealed and the appeal was received in the Department on 29 July 2005.  The decision on 9 June 2005 was looked at again but, on 4 August 2005, it was decided that the decision should stand.  

4.	The claimant did not attend the appeal hearing.  

5.	The tribunal gave the following reasons for its decision:

“The Tribunal was satisfied that an IB50 questionnaire was issued to [the claimant] by the Department on 26/04/05, which was a request for information in accordance with reg.6(1)(b) of the Incapacity for Work Regulations.

The Tribunal was satisfied that a reminder was issued on 08/06/05.

The Tribunal determined that the questionnaire and reminder had been issued at dates which were in compliance with reg.7(2)(a) and (b) of the Incapacity for Work Regulations and that the Department was entitled to treat her as capable of work in accordance with reg.7(1).

A further issue for consideration by the Tribunal was whether [the claimant] had shown good cause for not returning the questionnaire sent to her on 26/04/05.  In her letter of appeal, [the claimant] wrote that she had not received the questionnaire.

[The claimant] had elected not to have an oral hearing of her appeal.   Accordingly, she did not attend the Tribunal to give oral evidence in relation to the non-receipt of the questionnaire and to give any further evidence relevant to the issue of inaccurate postal deliveries.

The Tribunal felt that the onus of showing good cause fell on [the claimant].  The Tribunal had no means, in her absence, of assessing the credibility or otherwise of her assertion regarding non-receipt of the questionnaire.  The Tribunal felt that her handwritten letter of appeal was insufficient as evidence to establish good cause on the balance of probabilities.

Accordingly, the Tribunal felt that the onus of proof was not discharged by [the claimant] and disallowed the appeal.”

6.	The claimant appealed on the following grounds:

“[The claimant] never received the IB50 form.  When [the claimant] received a reminder she contacted the DHSS office in Banbridge.   They sent a fax to yourself.

I would ask that this case would proceed so that [the claimant] could put her evidence to the Commissioners.”

7.	The legally qualified member of the tribunal refused leave to appeal on 13 January 2006.  However, on 22 June 2006 a Commissioner granted leave to appeal on the following grounds:

“It is arguable that the decision was wrong in law, because, due to an administrative mistake, the claimant was denied the opportunity to present her case to the tribunal at an oral hearing and, therefore, there was a breach of her right to a fair hearing.”

8.	I am indebted to Mr Sloan who has taken particular care to give me all the necessary information to sort out the problems arising from this case as it has become clear that, through no fault of the claimant’s and contrary to her express wish, she has been unable to make her case before the tribunal at a hearing.  

9.	The claimant has contended that she had not received the relevant documents requiring her to fill in the questionnaire and that she would not have ignored such correspondence, knowing that to do so would affect her entitlement to benefit.  She also has stated that in the past she had received mail addressed to a similarly named property nearby.  The tribunal’s record of proceedings specifically notes that the claimant did “not attend the hearing to elaborate”.  Additionally, in the reasons for its decision (see paragraph 5 herein) the tribunal stated:

(a)	the claimant had elected not to have an oral hearing of her appeal;
(b)	accordingly, she did not give oral evidence about the non-receipt of the questionnaire;
(c)	she did not give any further evidence about the issue of inaccurate postal deliveries; and
(d)	the tribunal had no means therefore of assessing the credibility of her assertions about the non-receipt of the questionnaire.

10.	It is clear that the tribunal correctly identified the onus of proving good cause lay with the claimant and evidently drew an adverse inference from the claimant’s absence at the hearing.

11.	In her letter dated 1 December 2005 seeking leave from the legally qualified panel member to appeal to a Commissioner, the claimant stated that she was prepared to attend a hearing and that perhaps she had deleted the wrong response in the return form in relation to whether she wished to have an oral hearing or not.  

12.	It is clear that the case file accompanying the application for leave to appeal contains a copy of a letter (form Reg 2D) issued to the claimant on 31 August 2006.  This letter advised the claimant in accordance with regulation 9 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 that she should indicate whether she wished to have an oral hearing of her appeal.  A specimen copy of the reply form to be used (form REG2(i)d) was also provided by the Appeal Service in the file.  

13.	However, the Department, quite rightly in the circumstances, made further enquiries as to what the actual situation was about any request for an oral hearing.  It has since become apparent that the claimant did in fact return her reply form indicating that she wished to attend an oral hearing of her appeal and a copy of the claimant’s reply to this effect has been made available to me.  The document is stamped as having been received by the Appeal Service on 7 September 2005, which is within the prescribed time limit of 14 days required by regulation 39 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999.  There clearly has been an administrative mistake in this case.  Because of this unfortunate mistake, the claimant was denied the opportunity to present her case to the tribunal at an oral hearing and, therefore there was a breach of her right to a fair hearing.

14.	While the tribunal itself has not been at fault, its decision is clearly erroneous in law as the claimant was denied her right to an oral hearing.  Accordingly, the tribunal’s decision of 16 September 2005 must be set aside as being erroneous in point of law and the claimant’s appeal is therefore allowed.  I refer the case to another tribunal to decide the case on the merits.  This new tribunal may receive some assistance in relation to the matters that it has to decide from the decision of Mr Commissioner Powell (a Great Britain Commissioner and a Deputy Commissioner in Northern Ireland) in C11/03-04(IB).

(signed):  J A H Martin QC

Chief Commissioner

3 August 2006