CDLA/2924/2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I allow the claimant’s appeal.  I set aside the decision of the Cardiff appeal tribunal dated 23 June 2003 and I refer the case to a differently constituted appeal tribunal for determination.  I direct that there be an oral hearing before the tribunal.

REASONS

2.	The claimant had appealed to the tribunal against a decision to the effect that he was not entitled to disability living allowance.  In his letter of appeal, the claimant had referred to the fact that the hospital doctor from whom the Department had obtained information did not know him very well and invited the Department or tribunal to contact his general practitioner.  When he was asked what type of hearing he wished to have, he telephoned the clerk to the tribunal to reiterate his request that his general practitioner be approached.  The clerk advised him to put his request in writing.  Following this telephone conversation, he returned his form TAS 1, asking for a paper hearing, but enclosed with it a letter dated 22 May 2003 (now document 49 although at one time wrongly numbered as document 56).  In that letter, he again asked that his general practitioner be approached by the tribunal, saying that she was willing to support his case but that the Appeals Service “will need to get in touch with her to do so”.  The tribunal dismissed the claimant’s appeal.  He now appeals against the tribunal’s decision with my leave.  The Secretary of State does not oppose the appeal.

3.	I have no doubt that the claimant had the usual information saying that it was his responsibility to obtain further evidence and that the tribunal would not do it for him.  Nonetheless, as I said when I granted leave to appeal, it seems to me that, as the clerk to the appeal tribunal had invited the claimant to write the letter dated 22 May 2003, the claimant was at least entitled to an explanation as to why the tribunal had not acted as he wished by obtaining evidence from his general practitioner.  There is nothing in the tribunal chairman’s statement of reasons to suggest that they even considered the issue.  Had they done so, I suspect that they would have declined to obtain a report themselves but they might have decided to adjourn the hearing so that the claimant could either have another go at obtaining the evidence himself or else attend an oral hearing and give the evidence that he had hoped his doctor would give.  In the circumstances, I am satisfied that here has been a breach of the rules of natural justice.  It is obvious that the claimant asked for a paper hearing in the expectation that his doctor’s evidence would be before the tribunal.  The tribunal did not hear the claimant’s full case.  I therefore allow this appeal.  The case will be heard by another tribunal.

4.	In view of the history of this case, I think that the claimant should assume that the tribunal will not approach his general practitioner themselves.  He now has the opportunity of asking her to write a report supporting his case, without being asked to do so by the tribunal.  However, whether or not he obtains such a report, he would be well advised to attend the oral hearing that there will now be before the tribunal so that he can explain to the tribunal himself the difficulties he has.  Such evidence can be as valuable as a doctor’s.

	(Signed)	MARK ROWLAND
		Commissioner
		5 December 2003