CIB/4533/1999

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, brought by the claimant with the leave of a Commissioner, against a decision of the Liverpool social security appeal tribunal dated 25 August 1998, whereby they dismissed his appeal against a decision of an adjudication officer reviewing and terminating from 15 July 1997 an award of incapacity benefit on the ground that he did not satisfy the all work test.  I held an oral hearing at which the claimant was represented by Mr Allan Parker of Merseyside Welfare Rights Resource Centre and the Secretary of State was represented by Mr Huw James, solicitor, acting as agent for the Solicitor to the Departments of Social Security and Health.  I am grateful to both Mr Parker and Mr James for their helpful submissions.

2.	The claimant appeals on the ground that there was a breach of the rules of natural justice.  The material facts of the case can be stated very shortly.  In response to the standard enquiry, the claimant had told the clerk to the tribunal that he wished there to be an oral hearing before the tribunal and that he would be represented by “Welfare Rights, Hardman St., L’pool 1 9AX”.  The address was actually 24 Hardman Street but the postcode was correct and I accept Mr Parker’s suggestion that his organisation is probably sufficiently well known for the incomplete name of the organisation and the omission of the number of the building not to have prevented notification to him of the hearing.  However, notice of the hearing was not given to the Merseyside Welfare Rights Resource Centre.  Notice was only given to the claimant.  The claimant received the notice, stating that the hearing would be on 25 August 1998.  Unfortunately, he misread the notice and attended for the hearing on 28 August 1998, when he was told that the hearing had taken place three days earlier.

3.	Meanwhile, Mr Parker had been notified of the tribunal’s decision and he immediately, in a letter received by the clerk to the tribunal on 3 September 1998, asked for a statement of the reasons for the decision.  Regrettably, that request was not forwarded to the tribunal chairman by the clerk.  On 7 December 1998, Mr Parker sent a reminder, which was treated by the clerk as an out-of-time application.  It was still not dealt with until 24 March 1999, when it came before the regional chairman who pointed out that the original application had not been “actioned”.  It was not until 27 April 1999 that the statement of the tribunal’s reasons was sent to Mr Parker.   Also on 9 December, Mr Parker had applied for the tribunal’s decision to be set aside under regulation 10 of the Social Security (Adjudication) Regulations 1995.  That application was rejected on 1 June 1999.  On 11 June 1999, Mr Parker applied for leave to appeal which was refused by the regional chairman.  The application was then renewed to a Commissioner who granted leave on 16 September 1999.

4.	I am told that the claimant had been accepted as being incapable of work from 1983 until 14 July 1997 and that he had again been accepted as being incapable of work from 1 January 1998.  However, it is not just the six months’ benefit from 15 July to 31 December 1997 that is at issue because the break in entitlement has meant that the claimant has lost forever the additional pension he received with his incapacity benefit under transitional protection.  However, it is accepted that the tribunal’s decision was one they were perfectly entitled to make on the material before them and for which they have given adequate reasons.  The appeal is brought solely on the ground that there was a breach of the rules of natural justice.

5.	In his original grounds of appeal, Mr Parker submitted that the tribunal erred because they did not consider why the claimant was not present before them.  The Secretary of State replies that it was enough that the tribunal satisfied themselves that notice of the hearing had been properly sent to the claimant.  I agree.  I do not see what more they could have done to discover why the claimant was not present without adjourning the case and I do not accept that they were bound to do that once they had found that the notice had been sent to him.

6.	Mr Parker’s second point in the original grounds of appeal was that the tribunal had erred in proceeding without there being a presenting officer present.  However, while the presence of a presenting officer may be desirable, it is not essential as a matter of law and the absence of a presenting officer made it no more necessary to adjourn the proceedings than the absence of the claimant.

7.	At the hearing before me, Mr Parker developed a different point, which was that there had been a breach of the rules of natural justice because Merseyside Welfare Rights Resource Centre had not been given notice of the hearing.  There may be cases where a failure to give notice of a hearing to a representative gives rise to a breach of the rules of natural justice, but I do not consider this to be one of them.  As Mr James submitted, a representative is not a party to proceedings with a statutory right to be notified of a hearing.  I understand that it is now, and may have been then, the normal practice to give notice to a representative and there may sometimes be a legitimate expectation of such notification.  However, in the present case, notice was given to the claimant.  The claimant did not contact the representative before the hearing and I do not consider that he was entitled to assume that the representative would be notified separately.  Furthermore, the claimant himself failed to appear at the hearing.  Had he appeared, he could have endeavoured to contact Mr Parker then and could asked for an adjournment had Mr Parker been unable to appear.  The claimant was not deprived of the opportunity of putting his case merely because his representative was not notified of the hearing.  It is true that, had Mr Parker been present, he could have told the tribunal that he was expecting the claimant to attend and he could have asked for an adjournment had he been unable to secure the claimant’s attendance.  However, that does not mean that Mr Parker’s absence was an effective cause of the claimant’s absence.  The claimant had had the opportunity of appearing and it was through his own mistake that he did not.

8.	Mr Parker further pointed out that Merseyside Welfare Rights Resource Centre had been in possession of some further medical evidence to put before the tribunal.  However, that evidence could, and should, have been submitted to the tribunal before the hearing.  In any event, had the claimant appeared, he could have advanced the existence of the evidence as an additional reason for granting an adjournment, if he did not have a copy of the evidence with him.

9.	Accordingly, I am not satisfied that there was a breach of the rules of natural justice in this case and there is therefore no ground upon which I can set aside the tribunal's decision on this appeal.  It would have been open to the tribunal sitting on 1 June 1999 to have set aside the earlier tribunal’s decision under regulation 10(1)(b) of the Social Security (Adjudication) Regulations 1995 on the ground that the claimant and his representative had not attended the hearing and that, in all the circumstances, it was just to do so.  The fact that the claimant had been at fault in not attending would not necessarily have been a bar because the tribunal might have taken the view that the penalty of not being able to put his case was disproportionate in view of the amount of money at stake and the fact that there appears to have been no more than a simple error on the part of the claimant.  However, the circumstances were not explained to the tribunal as fully as they have been explained to me and, in particular, no explanation at all was offered for the claimant’s absence and nothing was said about the claimant having requalified for benefit at a lower rate.  It is not surprising that the application was dismissed on 1 June 1999 and, of course, there is no right of appeal against that decision.

10.	I dismiss the claimant’s appeal.

M. ROWLAND
Commissioner
22 February 2001