[2006] NISSCSC  C5_05_06(IB) (07 February 2006)

Decision No: C5/05-06(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 24 November 2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant, with the leave of a Commissioner granted on 17 August 2005, against the decision of the appeal tribunal whereby it was held, affirming the decision of the decision-maker, that the claimant was not incapable of work in accordance with the Personal Capability Assessment.  Accordingly a decision awarding benefit was superseded on 22 June 2004 and the claimant was not entitled to incapacity benefit (IB) from that date.

2.	A hearing of this appeal took place on 13 December 2005 at Dungannon.  The claimant was present, although not represented, while the Department was represented by Mr T McNamara of Decision Making Services.  

3.	The claimant claimed and was entitled to invalidity benefit from 19 July 1993 due to anxiety and depression. Through transitional regulations this award became an award of IB on 13 April 1995.  Upon receipt of medical evidence and following a medical examination, it was decided on 25 June 2004 that the claimant was not incapable of work and, consequently, not entitled to IB from and including 22 June 2004.  The claimant appealed the decision on 25 June 2004 and specifically requested an oral hearing.  The tribunal conducted an oral hearing on 24 November 2004 at which the Department was represented.  However, neither the claimant nor his then representatives, Francis J Madden and Company, Solicitors, were present.  The tribunal properly made enquiries as to whether the notifications of the hearing were properly issued to the claimant and his representative.  The tribunal was satisfied that they were, so the hearing continued in the claimant’s and his solicitor’s absence.  The tribunal came to the decision as set out in paragraph 1 herein.

4.	The claimant wrote to the clerk to the Appeals Service on 16 February 2005 in the following terms:

“I wish to appeal to the Commissioner the decision of the Tribunal to disallow me Incapacity Benefit on 24th November 2004.

I wish to state that I never received any notification of the hearing date for the Tribunal and I have checked with my Solicitors, Francis J. Madden & Co., The Square, Coalisland, County Tyrone, who have confirmed to me that they never received any notification either. …”

5.	Leave to appeal was refused by the legally qualified member on 24 February 2005.  It does not appear that the letter of appeal was treated, in the alternative, as an application to set aside the tribunal’s decision.

6.	The claimant, who is no longer represented, then applied for leave to appeal to a Social Security Commissioner.   Such leave was granted on 17 August 2005 for the following reasons:

“It is arguable that the decision was wrong in law, because it seems that the claimant did not receive a fair hearing in the judicial sense in so far as he sought an oral hearing but, through no fault of his, did not receive such a hearing.”

7.	The claimant’s case has been succinctly put in his letter dated 24 October 2005 to the Office of the Social Security Commissioners in which he stated:

“… Please note that the basis of my appeal has already been stated, in that, I never received notification from Appeals Service that my Tribunal had been listed for hearing, as I would have attended the Appeal on the said date if I had of (sic)been notified. …”

8.	The departmental submission originally was that there was no error in law.  It was submitted that separate notification letters of the hearing had been issued to the claimant and his representative in accordance with regulation 49 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 and they had been correctly so issued.  Accordingly they had to be treated as having been given on the day that they were posted in accordance with regulation 2(b) of the Regulations on the basis that they were issued to the appropriate addresses.  Relying on Great Britain Commissioners’ decision R(SB)19/83 it was incumbent upon the tribunal to satisfy itself that a claimant who did not attend had properly been sent the notice of hearing.  In this case the tribunal had so satisfied itself.  However, the non-receipt of a notice properly sent did not invalidate proceedings.

9.	However, in the present case the Department was directed by a Commissioner to take into account the Great Britain case CDLA 5413/1999 in making its submissions. In light of that decision, the departmental approach to the case has changed.  In that case the Commissioner dealt at some length with Article 6 of the European Convention on Human Rights and, in particular, paragraph 1 which states:

“In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

The Commissioner also considered the leading cases on this area of law including Feldbrugge v The Netherlands (1986) 8 E.H.R.R. 425 – a decision of the European Court of Human  Rights.  Applying these basic principles the Commissioner stated: 

“49.	Rehearsing again the salient features of this case in the light of the above analysis, it is one where the claimant asked, in accordance with regulations, for an oral hearing.  The hearing was to be before the only tribunal or court competent to give her case a full hearing as to issues of fact.  It was a case in which her presence and evidence were clearly relevant to the issue before the tribunal.  She was unrepresented.  She was not present at the hearing.  The Secretary of State was not represented.  There was no clerk present.  The tribunal heard the case, and in doing so both assumed it had the capacity to do so and that it did not need to adjourn.  It did that because the claimant was assumed to know about the hearing because of the deemed notice provision.  But the claimant did not know about the hearing through no fault of her own.

50.	The question for me on those facts is whether there was a fair hearing of this case before the decision of the tribunal was made, in the judicial sense of “fair hearing”.  In my view there was not.  This is because the claimant asked for an oral hearing and did not receive it.  This was through no fault of her own but because of the operation, against her interests, of a rule of procedure that was not a “fair balance” as between her and the other party to the appeal, the Secretary of State.

51.	It does not matter whether that unfairness was the result of the decision of the tribunal itself to continue with the case or whether it was the result of some failure in the method by which the claimant was supposed to be given notice and for which the tribunal itself had no direct responsibility.  The essential matter is that the decision under appeal was reached without the tribunal hearing the claimant and without it having any of the permissible grounds for not hearing her.  The fact that, technically, the hearing was an oral hearing does not change this.  It remained unfair, and therefore wrong in law, for both or either of the above reasons.  And that is so regardless of the individual merits of the claimant’s appeal, on which I make no comment.  The decision under appeal must be set aside so that the case can be relisted to enable her to attend her hearing.

52.	More generally, tribunals dealing with cases where claimants have requested an oral hearing but do not appear must have in mind that the reason for the claimant’s non-attendance may be that notice was not received by the claimant.  It will of course be for the tribunal to assess whether that is of itself a reason to adjourn.  But the tribunal should consider that question having in mind the “equality of arms” principle and its duty to provide a “fair and public hearing” where a claimant has asked for one.  This applies if the case is one where the presence of the claimant may affect the decision – but, for the reasons indicated above, that is likely to include most appeals.  If a tribunal decides a case in the claimant’s absence and, as in this case, it subsequently becomes clear that the hearing has not been a fair hearing in this sense, then the decision must be set aside.

53.	The most effective way of ensuring that a decision is fair, when taken in the absence of the parties, remains compliance with the approach in R(SB) 19/83 or something similar.  This should also ensure that the tribunal has the capacity to hear the case.  If that has not proved to be a sufficient safeguard, the tribunal chairman can use section 13(2) of the Social Security Act 1998 to have the matter set aside and referred to an appropriate tribunal so that there is an oral hearing.  Alternatively, there can be a set aside on application under regulation 57 or, as in this case, on appeal.”

10.	In these circumstances Mr McNamara submitted that the tribunal proceedings breached Article 6(1) of the European Convention on Human Rights, given force by virtue of the Human Rights Act 1998, and, in particular the principle of “equality of arms” as enshrined within the right to a fair hearing.  He also submitted that regulation 2 of the Social Security (Decisions and Appeals) Regulations (Northern Ireland) 1999, operates in a manner which gives preferential treatment to government departments as compared with other parties.  In the present case he submitted that the mere posting of the tribunal notifications to the claimant and his representative satisfied regulation 2 whether or not the notifications were actually received.  However, he made the point that notification could only be treated as given to the Department on the day it was actually received by an officer authorised by the Department.  In these circumstances Mr McNamara submitted that the tribunal erred in law by not considering the impact of Article 6 of the Human Rights Act, in particular the principle of “equality of arms”, when deciding to continue with the appeal.  Accordingly he submitted that the case should be remitted to a differently constituted tribunal for a further hearing at which the claimant and any representative he wished to have present could attend if they wished.

11.	I do not estimate the difficulties that tribunals will have if they have to be certain that parties have been informed in accordance with the regulations that an oral hearing has been arranged.  The tribunal in the present case cannot be faulted in the way it dealt with that issue.  Pre-the 1998 Human Rights Act the setting aside of a decision, under regulation 57 of the Social Security (Decisions and Appeals) Regulations (Northern Ireland) 1999, appears to have been the only remedy available to a claimant in circumstances where a claimant has not received notice of a hearing, even though it had been properly sent – see R(SB)55/83 – a decision of a Great Britain Commissioner concerned with the then relevant Great Britain legislation which included the Social Security (Correction and Setting Aside of Decisions) Regulations 1975.  However, Mr Commissioner Williams in CDLA/5413/1999 rejected this approach and has held that a decision of a tribunal is erroneous in law where notice of hearing has not been received by a party, even though there may have been no breach of the rules of natural justice by the tribunal.  

12.	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, especially in circumstances where the Department has readily agreed that the claimant never had proper notice of the hearing.

13.	The legally qualified member has two separate statutory powers to set aside decisions, (1) under Article 14(2) of the Social Security (Northern Ireland) Order 1998, if the legally qualified member is satisfied that there is an error in law in the tribunal’s decision, and (2) an additional power under regulation 57 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 where, inter alia, a person has failed to attend a hearing in circumstances where there may have been an injustice without there actually being an error of law.

14.	For the sake of completeness, there may also be a more general implied power to correct or set aside decisions under Article 28(2) of the Social Security (Northern Ireland) Order 1998, where it is necessary to do so in the interests of justice.  However, it is not necessary or appropriate to attempt to define the extent of any such powers in the decision in the present appeal.

15.	If the legally qualified member does decide to treat an application for leave to appeal as an application to set aside, the Department’s views on the propriety of setting aside a decision must be sought under regulation 57(4) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999.  Accordingly, in circumstances similar to those in the present case, the legally qualified member ought to have the informed views of the Department before deciding whether or not to set aside.

16.	Moreover, in a clear case a legally qualified member can always consider exercising his powers under Article 14(2) of the Social Security (Northern Ireland) Order 1998 to set aside.  However, in circumstances such as the present case, where some consideration of the factual situation about notification of hearing was appropriate, the Article 14(2) procedure might not be appropriate.

17.	Accordingly, the decision in my judgment is erroneous in point of law.  Therefore I allow the appeal and set the tribunal’s decision aside.  I remit the case to a differently constituted tribunal to rehear the case on its merits.  In the circumstances I direct the Tribunal Appeal Service and the new tribunal to make arrangements for the appeal to be heard by way of an oral hearing.

(signed):  John A H Martin QC

Chief Commissioner

7 February 2006