THE  SOCIAL SECURITY COMMISSIONERS

Commissioner’s Case no:        CDLA 5413 1999  

SOCIAL SECURITY ACTS  1992 - 1998

APPLICATION FOR LEAVE TO APPEAL AND
APPEAL FROM A DECISION
OF A DISABILITY APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Mr Commissioner David Williams

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1	This is an application by the claimant for leave to appeal against the decision of the Cardiff disability appeal  tribunal on 24 March 1999. I grant leave and, on consideration of the appeal, allow the claimant’s appeal. For the reasons given below, the decision of the tribunal is erroneous in law. I set it aside. I refer the case to a freshly constituted tribunal to determine the appeal in accordance with this decision. 

2	I held an oral hearing about this application in Cardiff on 8 December 1999. The claimant attended with her husband and was represented by her solicitor Mr Alan Jones. The Secretary of State was represented by Mr Swaroop of counsel, instructed by the Office of the Solicitor to the Department of Social Security. I am grateful to both for their robust and clear submissions in this case.

Leave to appeal 

3	A statement of material facts and reasons for the tribunal's decision was requested and issued promptly after the decision, but the chairman refused leave to appeal. The application for leave to appeal from a Commissioner was received a short while outside the time limit. At the oral hearing, I asked the claimant why she was late in making her application to the Commissioner. She explained that it was a combination of her ill health and other factors. Having heard the explanation, I indicated at the hearing that I was satisfied that there were in all the circumstances special reasons why I should consider and determine her application. I confirm that decision.  

4	The claimant’s ground of appeal to the Commissioner was: “I did not receive notification of the tribunal.” Mr Jones urged that ground strongly before me on the basis that there had been a breach of natural justice by the tribunal. He emphasised that the two parties to the appeal should be treated equally and had not been, and that the case and evidence before the tribunal were such that the claimant’s claim could not be decided without an oral hearing.  Mr Swaroop strongly supported the tribunal decision and argued that the tribunal had dealt with the matter properly. At the hearing, I reserved my decision on granting leave.

5	I now grant leave to appeal. I indicated that if I did grant leave, and subsequently allowed the appeal, I would not make my own decision, but would refer the matter to a new tribunal with appropriate directions. Both parties agreed that if I granted leave I should also deal with the appeal on that basis. 

The absence of notice

6	The claimant gave sworn evidence to me. In reply to questions, she stated that she had received a form asking if she wanted an oral hearing. She had replied saying that both she and her husband would attend, but she would not be represented. She had received other papers about the tribunal, but had heard nothing about the date of the hearing until she received a copy of the decision notice. She had lived at the same address for several years, and had no other address. She could not see why the notice should have been sent anywhere but to the address in the papers.  She had a telephone but neither made any calls, nor received any calls, about the hearing.  She was at home in March 1999, and was rarely out. She had received the adjudication officer’s decision about her claim through the post, and the review decision, and a letter about leave to appeal to the Commissioner.  I accept her sworn evidence.

7	The tribunal hearing took place with the claimant neither present nor represented, nor was there a clerk or a presenting officer present. The tribunal had before it the usual standard form for a decision. This has at the top a standard wording that reads:
	“Hearing date notified on ........................”
on which someone had inserted the date “9. 3. 99”. There is no other mention of notification in the papers. So I assume that the tribunal had this in mind in deciding to continue with the hearing. It may be that the tribunal referred to some other information about notification or the absence of the claimant but, if it did, it failed to make any note of it. In the record of proceedings, the chairman recorded:
	“The claimant did not attend. The tribunal was satisfied as to service and decided to proceed. There was no evidence in addition to scheduled documents 1 - 195 and [the claimant’s] undated letter headed “change of circumstances”.
This is in substance repeated in the statement of material facts and reasons.    

8	These facts raise directly the question whether a decision of a tribunal is or can be wrong in law if the tribunal hears a case in the absence of an unrepresented claimant who has made it clear that she or he wants to attend an oral hearing, and who is absent from the oral hearing for a reason that is at the time unexplained but later turns out to be that the claimant had not received notice, and was not otherwise aware, that the hearing was taking place. 

The arguments of the parties

9	Mr Swaroop argued that this issue had been decided in R(SB) 55/83. He submitted that there were no special circumstances in this case to remove it from the scope of that decision.  He also submitted that a tribunal could not be expected in a case such as this to adjourn to have proof of service made. The tribunal had considered the matter properly and proceeded properly. He further submitted an extract from Halsbury’s Laws of England and Wales, Vol. 1(1), paragraph 96, on the opportunity to be heard. He argued from the authorities in that reference that this was a case where a particular procedure had been prescribed by statute, and that there was limited scope for reference to common law principles of natural justice. 

10	In response, Mr Jones argued that the two parties to the appeal should be treated as of equal status. There were conflicts in the evidence not only between the claimant and the doctors but between the evidence of the examining medical officer and that of the general practitioner. In such circumstances, it was impossible for a tribunal to determine the appeal fairly without hearing from a claimant who wished to give evidence. In this case, the claimant had asked for an oral hearing and had challenged the examining medical officer's report.   Mr Jones accepted that the existing authority was R(SB) 55/83. But he submitted that a claimant who had asked for an oral hearing that was not properly held through no fault of the claimant should be given a second chance.

R(SB) 55/83 and R(SB) 19/83

11	It is necessary to consider R (SB) 55/83 and R(SB) 19/83  in some detail in order to follow these arguments fully.  I turn first to R(SB) 19/83. I do so because, in his submission supporting R (SB) 55/83, Mr Swaroop seemed to be arguing (but without reference to this case) that the reasoning of the earlier decision no longer applied. In R(SB) 19/83 the Commissioner had before him appeals about a claim for supplementary benefits single payments and a supplementary allowance. The tribunal heard both appeals in the absence of the claimant and dismissed them. The claimant appealed, as in this case, because he had not received notification of the hearing. No record of posting of notice to the claimant could be produced. The Commissioner drew attention to the desirability of cases such as this being handled under the set aside procedure.  As that had not been used in the cases before him, the Commissioner proceeded to deal with the matter himself.

12	At that time, the procedure regulations (the Supplementary Benefit and Family Income Supplement (Appeal) Rules 1980, “the 1980 Rules”) provided that: “

	the tribunal shall not proceed with the hearing of the appeal unless [reasonable 	notice of the hearing] has been given”: rule 5(2). 

The Commissioner held (at paragraph 6) that: 

	“In the present case it has not been shown that the required notice had been given 	to the claimant and the proceeding must be set aside.”

He also gave the following general guidance to tribunals:

As a practical matter it is the duty of the appeal tribunal when a claimant does not attend and is not represented on the appeal to ask the tribunal clerk if the claimant has been properly notified of the hearing; and the tribunal clerk should come to the hearing prepared to a question. It will be best if he can produce a completed copy LT212 as sent to the claimant showing the day, time and place together with particulars derived from the Department's records of posting to the claimant. And the record of the proceedings should that this has been done or (where this is the case) how otherwise the tribunal was satisfied that the absent claimant was notified of the hearing. If the tribunal clerk is unable to show due notification to the satisfaction of the  tribunal they must adjourn the matter. If they do not, the proceedings will probably prove abortive.

13	R(SB) 55/83 was based on a similar set of facts to R (SB) 19/83, save for one crucial difference. This was that the Commissioner accepted that the notice of the hearing “was undoubtedly sent out by post” (paragraph 5). There was also evidence why the notice might have gone missing in the post, as the claimant had moved. It was accepted that notice was not received. These points were enough to distinguish R(SB) 19/83, and perhaps for this reason there is no comment in this decision about the earlier decision. The Commissioner noted another point which differentiated it from R(SB) 19/83. It was in his view open to the claimant to apply for the decision under appeal to be set aside under regulation 3 of the Social Security (Correction and Setting Aside of Decisions) Regulations 1975, if the time limit could be extended. The Commissioner observed that if the set aside procedure was not dealt with properly, then there was a further remedy by way of judicial review, but this was not a matter for him. 

14	In R(SB) 55/83 the Commissioner laid stress on rule 1(4) of the 1980 Rules. This made a provision about notice that was broadly the same as the provision found at the time these appeals were heard (regulation 1(3) of the Social Security (Adjudication) Regulations 1995 (“the 1995 Regulations”)), at least concerning claimants.  The Commissioner compared this with the different wording of section 7 of the Interpretation Act 1978. He concluded his analysis as follows:

12.	Mr James very properly on behalf of the claimant raised the question whether, notwithstanding that non-receipt of a notice did not confer the right by virtue of any provision in the regulations to have set aside the decision made at the particular hearing, to which such notice referred, perhaps the person affected might, nevertheless, be able to rely on the common law principle of natural justice. The difficulty about this approach is that, in my judgment, the concept of natural justice has to be viewed in the context of the particular proceedings in question which in the present case means the supplementary benefit legislation. In the course of a year, there are hundreds of thousands of claims and a proportion of these are the subject matter of appeal. Necessarily, there has to be a considerable bureaucracy to implement the system and it is desirable that it should be managed with the maximum economy. The instruments which govern its operation are the statutory enactments authorised by Parliament for this purpose. There is nothing intrinsically repellent to natural justice if such enactments provide that proof of the sending of a notice shall be conclusive. Undoubtedly, there will be cases where, notwithstanding that the notice was properly posted, it was never received by the addressee. However, this is in my view a legitimate concession to the need to run the scheme with maximum economy. All forms of justice have to be obtained at a price, and
if Parliament has decreed that the cost of investigating the non-receipt of notices, so as to safeguard the persons concerned, is too high, so be it! At the end of the day the supplementary benefit scheme is not something to which there is a divine right; it is nothing more than an arbitrary compromise (sanctioned by Parliament) between the demand for benefits on the one hand and the availability of public funds to finance it other.

15	I interject at this point that Mr Swaroop’s main argument could be seen, considering the above analysis, to be an argument for, as the saying goes, having his cake and eating it. He argued that the tribunal should continue as if notice had been given, but should not be expected to adjourn to find out whether it had been given. That would not have worked as an argument in 1983 under the rules that then applied. Should it work now? As a matter of practice, if the tribunal had wished to continue on the grounds of R(SB) 55/83, then it should have ensured that it followed some action similar to that laid down in R(SB) 19/83. This was the starting point of the analysis in R(SB) 55/83. It did not do so. The only “evidence” was the note on the standard form of decision notice. That falls far short of the evidence required in R(SB) 19/83. I do not accept Mr. Swaroop’s argument as presented as a basis for meeting Mr Jones’ challenge.

The principles in issue

16	When R(SB) 19/83 and R(SB) 55/83 were decided all decisions made by supplementary benefit appeal tribunals had to be made at a public oral hearing: regulation 5(1) of the 1980 Rules.  Tribunals were required not to proceed on a case unless the parties consented or notice had been given under the regulations: regulation 5(2).  But tribunals also had express power to proceed in the absence of a party if, “having regard to all the circumstances, including any explanation offered for the absence, they may think it proper”: regulation 5(3).  R(SB) 19/83 decided that, for regulation 5(2) to be satisfied in the unexplained absence of a claimant, it had to be shown by positive evidence that the requirement of notice had been met by evidence of posting. R(SB) 55/83 decided that where it had been shown that the notice had been posted, a tribunal could not be held to be in breach of natural justice if it used its powers under regulation 5(3) to proceed, even if it was later established that the notice had not been received.

17	The assumed background to both R(SB) 19/83 and R(SB) 55/83 was that all hearings were oral even if the claimant did not want an oral hearing. That approach had changed fundamentally by the time of the tribunal hearing in this case.  In this case, the claimant only received an oral hearing because she expressly asked for one. That of itself, in my view, calls into question the reasoning of the Commissioner in R(SB) 55/83 about “an arbitrary compromise (sanctioned by Parliament)”. There is in place now a very different compromise. The restriction of oral hearings is but one of the changes in the way tribunals run as compared with the way they ran in 1982.  For example, the guidance in R(SB) 19/83 was based on the assumption that tribunals had clerks who would be aware of the backgrounds of cases. They also had presenting officers who were also frequently directly involved in the cases. This tribunal had neither a clerk to help it nor a  presenting officer before it, and, it would seem, no guidance at all about the previous handling of the case save for the short note on the decision notice form.  

18	I must first separate a series of issues that are, to some extent, 
conflated in R(SB) 55/83.  The first issue in that case, and this, is whether the tribunal has jurisdiction to proceed in the absence in that case of the claimant and in this case of either party. The second issue is whether the tribunal, having assumed the capacity to hear the case, was right to proceed to hear it in the absence of either party.  The distinction between those issues was clear in regulation 5 of the 1980 Rules, and in regulation 4(2) of the 1995 Regulations. It was not at issue in R(SB) 55/83.  It is the difference between a tribunal erring in law for want of capacity to hear a case, and a tribunal deciding to go ahead in a situation where its decision to do so may be unfair (or, more formally, in breach of natural justice).  The third issue is whether, in a case where a tribunal has reached a decision in the absence of the parties, the decision can be challenged as being unfair for some reason other than the conduct of the tribunal itself.  

19	Linked to the distinction between the second and third issues is a parallel question.  This is the question of the jurisdiction to provide a remedy for any error in handling any of those three issues.  When does a Commissioner have capacity to set aside the tribunal decision if it is realised that something went wrong on any of the above questions? And when does the tribunal (or another tribunal) have that capacity?  The present power of Commissioners is in section 14 of the Social Security Act 1998, and the present power of tribunals is in regulation 57 of the 1999 Regulations.  A Commissioner clearly has power to deal with the first and second questions, and a tribunal clearly has power to deal with some aspects of the second question and the third question.  If this case is an example of the third question rather than the first or second questions, do I have power to consider it? 

Is set aside an exclusive answer?

20	R(SB) 19/83 and R(SB) 55/83 took differing views on the relevance of set aside procedures.  In R(SB) 19/83, the approach was to note the set aside procedure as the desirable course of action. But set aside had not been used and might not be available. The Commissioner therefore proceeded to hear the appeal. In R(SB) 55/83, the approach was to argue that set aside might still be available and that this provided the claimant with her remedy when the Commissioner found himself unable to offer one. The Commissioner in R(SB) 19/83 took the view that he was not precluded by the Act or regulations from deciding as he did.

21	The rules about set aside have been replaced since then, although the central approach remains the same. In this case, Mr Commissioner Rowland, in directing an oral hearing, asked the Secretary of State for views on whether the remedy in this case should have been set aside under what is now regulation 57 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (“the 1999 Regulations”), and was previously regulation 10 of the 1995 Regulations. The relevant parts of regulation 57 provide:

	(1) On an application made by a party to the proceedings, a decision of an appeal tribunal ... may be set aside by a legally qualified panel member in a case where it appears just to set the decision aside on the ground that -
	...
	(b) a party to the proceedings in which the decision was made or the party’s
	representative was not present at a hearing relating to the proceedings.

	(2) In determining whether it is just to set aside a decision on the ground set out in
paragraph (1)(b) the panel member shall determine whether the party making
the application gave notice that he wished to have an oral hearing ... 

22	The Commissioner directed as follows:

	“The balance of convenience is unlikely to favour that course of action being taken now but, because it may be relevant in the future, the Commissioner will wish to hear brief argument from the Secretary of State's representative as to whether I could today have refused leave on the ground that that alternative remedy was available or whether the alternative remedy would by now have ceased to have been available, having regard to regulation 32(5)(b) of the 1999 Regulations, as applied by regulation 57(3). Are there “wholly exceptional” circumstances in this case?”

Regulation 32, read with regulation 57(3), provides for the same rules for late applications for set aside as on appeals. Regulation 32(5)(b) provides for an extension of the time limit only where some special circumstances exist which are wholly exceptional.”

23	Mr Swaroop accepted that regulation 57 was time-barred in this case, but submitted that even if it were not time-barred the availability of regulation 57 would not, in the view of the Secretary of State, stop a Commissioner considering the matter. He could see three cases in which the issue might arise. First, there was the case when a Commissioner, considering an application, had to take into account both grounds under regulation 57 and other grounds. In that case, the Commissioner could in any event proceed on the other grounds, so regulation 57 was not decisive. This also applied where the grounds given were covered by regulation 57 but the Commissioner, on consideration, also saw other grounds. But even in the third case where the only ground was one within regulation 57, the Secretary of State saw no practical advantage in regulation 57 being regarded as the only approach. Mr Swaroop therefore submitted that as a matter of practical consideration, not only in this case but in any conceivable situation, it would inappropriate to deal with the question of leave by reference to regulation 57 alone. He therefore did not oppose my considering the appeal. 

24	Mr Swaroop’s approach to these questions is that Parliament has laid down a series of rules for dealing with the question in the 1995 and 1999 Regulations. These include the rule about deemed notice. He asked me to consider the arguments in Halsbury on this point, on the basis that he was not submitting that the rules provided in the legislation were comprehensive. But he drew my attention to two specific propositions in Halsbury: “The more detailed the procedural provisions in the statute, the more willing will be the court to assume that they were intended to  be comprehensive”, and “Even where the prescribed procedure is not treated as a comprehensive code, compliance with it may be evidence of fairness”. (Footnote 6 to paragraph 96, reference at paragraph 9 above). The conclusion in R(SB) 55/83 was supported on that basis, as the tribunal had not itself erred, and it had checked that the proper procedure was followed.  That was all, under the regulations, it could be expected to do. To go further and to expect the tribunal to investigate why the claimant was not present, or to consider adjourning for such an investigation would be to impose a duty on the tribunal which would be too onerous and impracticable and would, in his words, be “a duty too far.”

The Commissioner’s jurisdiction  

25	I do not accept this argument, but I do not need to refute it to establish an error of law in this case. My duty is to consider if the decision of the tribunal is erroneous in law. That can be shown to be the case although the tribunal itself has not committed any error: that was the basis of the decision in R(SB) 19/83. It may be, and I think it probably is, wrong to describe a case where it is alleged that the decision is erroneous but where the tribunal did not itself err, as a case of breach of natural justice. But that does not of itself prevent the decision being found to be in error. This issue has been canvassed in leading cases such as Ex parte Al-Mehdawi [1990] 1 AC 876. This was one of the many cases reviewed in the full analysis of the law in R v Bolton Justices ex p Scally [1991] 1 QB 238. In that case the Divisional Court concluded that it can interfere with a decision of a magistrates’ court in a criminal case under its supervisory jurisdiction where there was no error on the part of the court itself, but where the conduct of the prosecutor or police was such that the defendants had no proper opportunity to plead guilty or not guilty, and were in the particular case wrongly denied a complete defence to the charge against them. I desist in this already lengthy decision from quoting from those cases, because I do not consider that this part of Mr Swaroop’s argument of itself resolves the issue in this case.

26	The duty of a Commissioner is to set aside decisions of tribunals that are 
erroneous in law. That duty covers the issues also covered in set aside proceedings and now in regulation 57 of the 1999 Regulations, at least in so far as they deal with the non-attendance of a party. So much follows from decisions such as R(SB) 19/83. It was expressly accepted in this case on behalf of the Secretary of State. In some circumstances it may be shown that the decision was erroneous in law by reference only to issues that was revealed after the decision was made.  
To set aside a decision on application or appeal, where it is wrong, does not of itself impose a duty, let alone a “duty too far” on the tribunal. Rather, it imposes a duty on those charged with dealing with set asides and with appeals. It is the duty of considering if the decision, considering all relevant circumstances, was erroneous in law. In this case that duty falls on me, not the tribunal. 

27	My conclusion is that set aside by the tribunal is not an exclusive answer to the issue. But I accept that the requirement that attention be paid to whether the party had asked for an oral hearing as part of consideration of a set aside should also be taken into account in any parallel consideration of an appeal. I accept the approach taken in R(SB) 19/83 as still appropriate rather than the view in R(SB) 55/83. I therefore turn to the three issues about the jurisdiction and powers of the tribunal.

The provision about notice

28	The main argument in R(SB) 55/83 was based on the deeming of notice under what was regulation 1(4) of the 1980 Rules, is now regulation 2(b) of the 1999 Regulations, and was at the time relevant to the tribunal decision regulation 1(3) of the 1995 Regulations. Regulation 2 provides:

	Where, by any provision of the Act or of these Regulations -
	(a) any notice or other document is required to be given or sent to the clerk to the appeal tribunal or to an officer authorised by the Secretary of State [or an officer of the Board], that notice or document shall be treated as having been so given or sent on the day that it is received by the clerk to the appeal tribunal or by an officer authorised by the Secretary of State, as the case may be, and
	(b) any notice (including a notification of a decision of the Secretary of State) or other document is required to be given or sent to any person other than the clerk to the appeal tribunal or to an officer authorised by the Secretary of State, as the case may be, that notice or document shall, if sent by post to that person’s last known address, be treated as having been given or sent on the day that it was posted.

The words in brackets were added by regulation 4 of the Tax Credits (Decisions and Appeals) (Amendment) Regulations 1999, SI 1999 No 2570 with effect from 5 October 1999.
 
29	Regulation 2, read as a whole, applies to many more situations than those of notifying parties to an appeal. But, as it applies to notification of an appeal hearing, it provides that notice to the officer acting for the Secretary of State is treated as having been given or sent on the day it is received by an authorised officer (and not merely by anyone in the employ of the Secretary of State), while notice to other parties is given on the day it is posted to an address.  Further, the regulation has been amended to apply to an officer of the Board of Inland Revenue in the same way as to an officer of the Secretary of State. In other words, it is not only the Secretary of State to whom regulation 2(a) applies in preference to regulation 2(b). It applies to government departments and not to other parties. The amendment removes any argument that might arise for some reason special to the fact that the Secretary of State acts both as a party to the tribunal and as the secretariat to the tribunal.

30	What happens if notice is not given to a party?  Regulation 49(2) of the 1999 regulations provides that notice shall be given, and that if such notice is not given then the hearing may proceed only with the consent of the party concerned. Regulation 4(2) of the 1995 Regulations was to the same effect, as was rule 5(2) of the 1980 Rules. It follows that the absence of notice means that the hearing cannot take place. “Since regulation 4(2) is mandatory, the better view might be that the tribunal lacks the capacity to hear the appeal at that time and the hearing is automatically postponed.” (Bonner, Hooker and White, Non-Means Tested Benefits: The Legislation, Sweet and Maxwell, 1999 edition, p 424). I agree.  

31	How is the tribunal to satisfy itself that it has capacity? That was the central issue in R(SB) 19/83. It did not arise in R(SB) 55/83. In so far as that decision deals with notice to claimants, the wording of the regulation considered by the Commissioner in that case is the same as the wording under which tribunals operate today. Notice is therefore a requirement for jurisdiction. To avoid proceedings proving abortive, as the Commissioner emphasised, the guidance of the Commissioner should apply today. There is no basis for changing it  simply because administrative arrangements have been changed.  An appeal tribunal cannot give itself the capacity to act where the procedural requirements have not been fulfilled just by assuming they have been.  Is that done by the evidence before this tribunal?  

32	This brings into focus the differential operation of regulation 2 of the 1999 Regulations (and its equivalent in the 1995 Regulations). There is a separate rule for notice to the Secretary of State and it must be shown, for a tribunal to have capacity, that the notice is properly given to the Secretary of State.  Can that be done in the way this tribunal did it, namely by reference exclusively to the wording at the top of the form. I did not hear argument on this point and do not decide the case on this basis, but I question the adequacy of existing procedures in a case such as this.  This is because the wording used (as quoted in paragraph 7 above) can be seen on its face in most cases not to comply with regulation 49(2) when read with regulation 2(a).  This is because notification to the Secretary of State is invalid unless properly received or notice is waived. How is the tribunal to establish that if the Secretary of State is not represented at the tribunal? That, of course, was not a problem when R(SB) 19/83 was decided.  However, the capacity of this tribunal to act has not been challenged, so I consider next the basis on which it was challenged, the argument about natural justice.

Natural justice 

33	In this case (as in R(SB) 55/83) it was assumed on behalf of the claimant that the error about notice is an error causing a breach of natural justice by the tribunal. 
The breach of natural justice, or unfairness, is said to be that the tribunal heard the case without the claimant being present.  The duty to hear all parties to a case is a fundamental principle of justice long recognised by the courts, and I do not need to explore its basis here. More recently, it has been buttressed by reference to the European Convention on Human Rights.  The argument for the claimant is that the tribunal did not give the claimant a chance to present her evidence and arguments. It thereby offended against the fundamental rule of fairness that all parties to a case should be given equal access to and a fair hearing by the court or tribunal.  But in what way did the tribunal err in this case if it is assumed it had jurisdiction to continue with the hearing? If it is assumed, as Mr Swaroop argued, that the tribunal made proper enquiries, and that it was unreasonable to expect it to make more, did it err in law?

34	The guidance in the 1999 Regulations on this question is to be found in regulation 57. This specifically draws attention to the question whether the claimant had asked for an oral hearing. It lays down a more relaxed approach to setting aside cases where there has been a request for an oral hearing, and a less relaxed approach where there was no request. That should be the starting point in this case.  It is not disputed that the claimant did want an oral hearing.  The crux of the issue is whether she remains entitled to one, having asked for it, if she failed to receive notice of it. Mr Jones asked me to decide that by reference to facts, on which he submitted that his argument was strong. This was not a new or untested claim. The claimant had been receiving both components of disability living allowance for several years at varying rates under awards that had been renewed twice. It was stopped on review at the third renewal on the basis of medical evidence. But this was in two allegedly inconsistent reports, both of which the claimant had challenged, in effect, as out of date because they predated a diagnosis of her complaint. She asked to be heard on this. It was clearly a case where her evidence was of direct relevance to the decision of the tribunal, and where the issues were those of fact rather than law.   Since the hearing it has been established that, through no fault of the claimant or any representative of hers, she failed to attend the hearing simply because she did not know about it.

35	The power to set aside under regulation 57 is a power to be used “where it appears just”.  That is a direct reference to the principles of natural justice.  It also confers a discretion. Like the authority of a tribunal to adjourn, it is a discretion to be exercised judicially.  Both are discretions designed to ensure a fair hearing where otherwise there would be unfairness.  But both must be exercised with reference to the framework within which the decisions are taken - what the Commissioner in R(SB) 55/83 called the arbitrary compromise.
  
36	In R(SB) 55/83, the Commissioner dealt with this question by deciding that the rules on notice prevented a decision by the tribunal not to adjourn from being attacked as unfair. He also decided that any subsequent question of unfairness was not for him. I have disagreed with his second conclusion as it now applies, and I must disagree with his first conclusion again as it now applies.  I do so for two reasons, both arising since his decision was taken.  One reflects a change of procedure since he took that decision, namely that oral hearings are not automatic, but are held only on request.  The other is that Parliament has now confirmed that the Convention rights laid down in the European Convention on Human Rights  are to be taken into account in all judicial proceedings.

37	I have already noted the change in procedure that introduces, in parallel, two methods of handling social security appeals: oral and paper hearings. Subject to procedures that are not in issue in this case, it gives the claimant a choice between those two procedures. Does it make any difference to the claimant which choice is made? I raise that point because it could be argued that, as the tribunal is the same, there may be no issue of natural justice inherent in the choice of the methods of hearing. Considering evidence on the public record of which I may take judicial notice, I do not think it can be argued that the two procedures can be regarded as “the same” in terms of outcome. The difference is therefore to be considered when exercising a judicial discretion. The operation of social security tribunals was recently examined by the House of Commons Social Security Select Committee. In its report (Eighth Report of the Committee, Session 1999-2000, paragraph 42) it drew attention to relevant statistics from the tribunals:
During the calendar year 1998, appellants who attended were successful in 45 per cent of cases, rising to 63 per cent if they attended with a representative. In contrast, only 17 per cent of appellants who did not attend were successful. [Social Security Statistics, 1999, Table H5.03, HMSO.]
Various explanations were offered for this difference. They raise issues beyond my competence to examine, but they do not, in my view, avoid the conclusion that a tribunal faced with a choice between hearing a claimant and not hearing a claimant cannot entirely ignore the difference that this may make to the outcome of the hearing. 

The European Convention on Human Rights
 
38	The other relevant change is the introduction of the European Convention on Human Rights into our internal law. The Human Rights Act 1998 incorporates the Convention into English and Welsh law. The Act comes into effect on 2 October 2000. This expressly introduces into internal law what are known as the Convention Rights (although the Crown adopted them on behalf of the United Kingdom in 1953). The Commissioner in CIB 213 1999 drew attention to views of the senior judiciary about the duty of courts to pay attention to the Convention. I respectfully accept those views. It is clear that 
the relevant Convention rights should be taken fully into account in cases such as this where there is a judicial discretion to be exercised. And they must also be applied by the Commissioner considering the resulting decisions.

39	The relevant requirement of Article 6 paragraph 1 of the Convention is that:

	“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.”

40    There is a highly developed jurisprudence of the European Court of Human Rights (“the Court”) on the Convention. This includes significant caselaw on the scope and operation of Article 6 paragraph 1.  A full analysis can be found in F Jacobs and R White, The European Convention on Human Rights (2nd edn., OUP, 1996) or in D Harris, M O'Boyle and D Warbrick, Law of the European Convention on Human Rights (Butterworths,1995).  There is a specific analysis about its application in this jurisdiction in Professor White's chapter on Social Security in The Human Rights Act 1998:  A Practitioner's Guide (ed. C Baker, Sweet and Maxwell, 1998).  

41	On that authority, I do not think it is open to dispute in this case that the claimant was a “victim” with in the meaning of Article 34 of the Convention. Nor can it be contended that there was no real dispute before the tribunal. Equally, it was a dispute about “civil rights and obligations” of the claimant, namely her right to have the renewal or revocation of her claim handled properly.  The application of Article 6 paragraph 1 of the Convention to social security cases was fully considered in Feldbrugge v the Netherlands, 29 May 1986, Series A No 99. The Court accepted that Article 6 paragraph 1 applied to a dispute between an individual and the state authorities about a pension based on a compulsory insurance scheme.  The Court also decided Deumeland v Germany, 29 May 1986, Series A No 100, on the same day and to the same effect, concerning an industrial injuries pension in Germany. The Court returned to this in several subsequent cases, including Salesi v Italy,  26 February 1993, Series A No 257-E (disability allowance), and Schuler-Zgraggen v Switzerland, 24 June 1993, Series A No 263, (public non-contributory invalidity pension).  Those and other similar cases were regarded by the Court as being within the reasoning of Feldbrugge. As interpreted in those cases, it clearly covers this case also. 

42 	Under Article 6 paragraph 1, the claimant is entitled to have her rights considered by the tribunal in a “fair and public hearing”.  Mr Jones argued in general terms (although not by reference to Article 6) that a fair hearing requires in this case that the tribunal hearing and decision meet two key points: that his client be given the oral hearing she requested, and that she be treated with the Secretary of State as equal parties by the tribunal.  Those issues require the examination of two aspects of the jurisprudence of the Court of Human Rights: the “equality of arms” principle, and the meaning of a “fair and public hearing”. 

“Equality of arms”

43	I consider the principle of equality of arms because of the terms of regulation 2 of the 1999 Regulations, and its predecessor.  As applied to notice of a hearing by a tribunal, that regulation gives preferential treatment to government departments as compared with all other parties.  I do not consider, as it was not raised by the parties, the question why, and under what statutory authority, it came about that this discrimination was introduced into what used to be a neutral rule. Nor can I consider any issue of compatibility between the regulation and the Convention rights. But I can and therefore must take the principle into account when considering the fairness of the decision of the tribunal to continue in this case and the fairness of the decision taken. This is because the effectiveness of that decision derives directly from the operation of regulation 2.

44	In Dombo Beheer BV v the Netherlands, 27 October 1993, Series A, no 274, the Court of Human Rights applied the principle to the civil rights and obligations of a claimant in a private case. The following general statements are of relevance to this case:

32.	The requirements inherent in the concept of a “fair hearing” are not necessarily the same in cases concerning the determination of civil rights and obligations as they are in cases concerning the determination of a criminal charge. This is borne out by the absence of detailed provisions such as paragraphs 2 and 3 of Article 6 applying to cases of the former category. Thus, although these provisions have a certain relevance outside the strict confines of criminal law (see, mutatis mutandis, the Albert and Le Compte v Belgium judgment of 10 February 1983, Series A not 58 p 20 paragraph 39) the Contracting States have greater latitude when dealing with civil rights and obligations than they have when dealing with criminal cases.

33.	Nevertheless, certain principles concerning the notion of a “fair hearing” in cases concerning civil rights and obligations emerge from the Court’s case-law. Most significantly for the present case, it is clear that the requirement of “equality of arms”, in the sense of  a “fair balance” between the parties, applies in principle to such cases as well as to criminal cases (see the Feldbrugge v the Netherlands judgment of 26 may 1986, Series A no 99, p 17, paragraph 44).

	The Court agrees with the Commission that as regard litigation involving opposing private interests, “equality of arms” implies that each party must be afforded a reasonable opportunity to present his case - including his evidence - under conditions that do not place him at a substantial disadvantage vis-a-vis his opponents.

		It is left to the national authorities to ensure that in each individual case the requirements of a “fair hearing” are met.

45	That reasoning was applied by the Court, among other cases, in the case of Hentrich v France, 22 September 1994, Series A, no 296-A, paragraph 56. This was about a dispute before a tribunal between an individual and the French Revenue in a case where the Court upheld the complaint of the individual that she had not been able to adduce evidence to the court to offset evidence produced by the Revenue, a contravention of the principle of equality of arms. In my view, it is clear from this that the absence of “equality of arms” or a “fair balance” between the parties in this case under regulation 2 is directly relevant to the question whether the hearing conducted, and the decision taken, by the tribunal in the absence of the claimant was fair.  Hentrich is also authority for the view I take about the evidence to be considered in this case, to which I return at the end of this decision. 

“A fair and public hearing”

46		The Court of Human Rights has ruled in a number of cases on whether a hearing can be a “fair and public hearing” if there is no oral hearing of the parties. The Court has considered this, in particular, in connection with the proceedings of  several courts and tribunals that give oral hearings, as in this case, only on application. The main question in such cases is whether the Court accepts that there are cases where a court of tribunal can reach a decision without conducting a public oral hearing. This was addressed in  Schuler-Zgraggen (noted above). At paragraph 58 of its judgment, the Court stated:

58		The Court reiterates that the public character of court hearings constitutes a fundamental principle enshrined in paragraph 1 of Article 6. Admittedly, neither the letter nor the spirit of this provision prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to have his case heard in public, but any such waiver must be made in an unequivocal manner and must not run counter to any important public interest (see, among other authorities, the Hakansson and Sturesson v 
Sweden judgment of 21 February 1990, Series A, no 171-A, p 20 paragraph 66.)                             

		In the instant case the Federal Insurance Court’s Rules of Procedure provided in express terms for the possibility of a hearing “on an application by one of the parties or of the [presiding judge’s] own motion (Rule 14 paragraph 2 - see paragraph 38 above). As the proceedings in that court generally take place without a public hearing, Mrs Schuler-Zgraggen could be expected to apply for one if she attached importance to it. She did not do so, however. It may reasonably be considered, therefore, that she unequivocally waived her right to a public hearing in the Federal Insurance Court.

	Above all, it does not appear that the dispute raised issues of public importance such as to make a hearing necessary. Since it was highly technical, it was better dealt with in writing than in oral argument; furthermore, its private, medical nature would no doubt have deterred the applicant from seeking to have the public present.

Lastly, it is understandable that in this sphere the national authorities should have regard to the demands of efficiency and economy. Systematically holding hearings could be an obstacle to the “particular diligence required in social security cases” (see the Deumeland v Germany judgment previously cited, p 30 paragraph 90) and could untlimately prevent compliance with the “reasonable time” requirement of Article 6 paragraph 1 (see mutatis mutandis the Boddaert v Belgium judgment of 12 October 1992, Series A, no 235-D, pp 82-83, paragraph 39).

	There has accordingly been no breach of Article 6 paragraph 1 in respect of the oral and public nature of the proceedings.

The Court has expressed similar views in other cases, in particular about the Austrian Administrative Court, which only holds hearings when a party asks for one: see Zumtobel v Austria, 21 September 1993, Series A No 268-A. From this it is clear that there is no failure to provide a fair hearing simply because there is in that particular case no oral hearing. More is needed.

47	In Fischer v Austria, 26 April 1995 , Series A No 312, the Court considered the case of an applicant who had opted for an oral hearing before the Austrian Administrative Court, but did not receive one. The relevant part of the Court judgment was as follows:

43  It remains to be examined whether in the present case Article 6 paragraph 1 conferred on the applicant the right to an oral hearing. As stated earlier ... only the proceedings before the Administrative Court are in issue; the other authorities which dealt with the applicant’s complain, notably the Austrian Constitutional Court, cannot be considered tribunals invested with full jurisdiction for the purposes of Article 6.

44  The practice of the Austrian Administrative Court is not to hear the parties unless one of them asks it to do so ... Contrary to what happened in the Zumtobel case, Mr Fischer expressly requested an oral hearing in the Administrative Court. He was refused on the ground that it was not likely to contribute to clarifying the case... There is accordingly no question of the applicant’s having waived that right.

		Furthermore, there do not appear to have been any exceptional circumstances that might have justified dispensing with a hearing. The Administrative Court was the first and only judicial body before which Mr Fischer’s case was brought; it was able to examine the merits of complaints; the review addressed not only questions of law but also important factual questions. That being so, and having due regard to the importance of the proceedings in question for the very existence of Mr Fischer’s tipping business, the Court considers that his right to a “public hearing” included the right to an “oral hearing” : see the Fredin v Sweden (no 2) judgment of 23 February 1994, Series A no 283-A, p 10 paragraph 21.
			
			The refusal by the Administrative Court to hold such a hearing amounted therefore 	to a violation of Article 6 paragraph 1 of the Convention.

48		This establishes an exception to the approach in Dombo Beheer where an applicant has asked for an oral hearing. If that request is made, the tribunal cannot fairly override it, at least in a case where the claimant’s appearance may be relevant to the decision to be taken. The Court emphasised that it was concerned about the nature of the hearing before the body with full competence to deal with questions of fact and law. It was not concerned with the separate issue of appeals on limited grounds only. It also raised other issues in its judgments, such as a case where an oral hearing will make no difference to the outcome. As those issues do not arise on the current facts, I do not need to discuss those aspects of the decisions.  But I note that this position is consistent with the position under regulation 57 of the 1999 Regulations as noted in paragraph 27 above.

My decision

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.

Direction to the new tribunal  

54		The appeal must be referred to a new tribunal for an oral hearing. I have not in this decision given any consideration to the merits of the claimant’s application, and therefore, as agreed with the parties at the oral hearing, refer the appeal for full reconsideration in the light of the submissions from the parties. The decision under appeal was made after the royal assent was given to the Social Security Act 1998. Schedule 6 paragraph 4 to the Act applied to the hearing before the first tribunal, and section 12(8)(b) of the Act applies to the tribunal rehearing the case. That provision was considered fully by the Commissioner in CDLA 4734 1999. For the reasons given by the Commissioner in that case, I direct the tribunal conducting the new hearing in this case to consider all evidence placed before it, and all oral evidence given to it, that relate to the claimant’s circumstances during the period to the date of decision, 6 August 1998. 

55		Because it is headed “change of circumstances”, I must deal specifically with the undated letter sent in by the claimant about her visit to a consultant in January 1999 and related evidence. The new diagnosis noted in the letter was given after the date of the decision under appeal. But I do not agree with the claimant that it is a “change of circumstances” - in the sense in which that phrase is used in section 12(8)(b) - that she has now been given a diagnosis for her past problems. The diagnosis does not alter the problems, merely the perception of them. The tribunal is to apply the guidance in CDLA 4734 1998, in particular at paragraph 58, on the evidence it may consider. The tribunal should therefore consider this letter and all other relevant evidence, whenever obtained, provided it relates to the circumstances during the relevant period for its decision. That includes any medical or other evidence explaining, after the event, why it was that the claimant had disability problems during the period under review. It may also relate to the accuracy of the medical reports before the adjudication officer as considered with any later diagnosis. It includes, in particular, the oral evidence of the claimant. 

56 	I was told at the hearing of this case that the reason for the appeal was to get the further evidence heard. Without reopening the arguments in this case or in CDLA 4734 1999, it would in my view be a further failure to give the claimant the “fair and public hearing” she has requested if the tribunal failed to consider any of that evidence. See the Hentrich decision noted above at paragraph 45. The claimant and her solicitor should produce all further medical or other documentary evidence in good time before the new hearing so that it can be considered by all concerned.

											David Williams
											Commissioner

											9 February 2000