CIB/4193/2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I allow the claimant’s appeal.  I set aside the decision of the Newcastle-upon-Tyne appeal tribunal dated 14 July 2003 and I refer the case to a differently constituted appeal tribunal for determination.

REASONS

2.	This case draws attention to an area in which the processes of the Appeals Service might be improved.

3.	The claimant appealed against a decision of the Secretary of State to the effect that she could not be treated as incapable of work from 19 February 2002 because she scored only 2 points in respect of mental disabilities under Part II of the Schedule to the Social Security (Incapacity for Work) (General) Regulations 1995.  She raised a number of issues relating to both physical disabilities and mental disabilities but said that she did not wish to attend a hearing.  The tribunal duly considered the appeal on the papers on 9 January 2003 and dismissed it.  The claimant applied for leave to appeal.  A different chairman considered the application on 4 April 2003 and, exercising his powers under section 13 of the Social Security Act 1998, he set the decision aside on the ground that the tribunal had given insufficient reasons for preferring the evidence of the examining medical practitioners to that of other doctors.  The case was listed for another “paper hearing” and, on 14 July 2003, a second tribunal again dismissed the claimant’s appeal against the Secretary of State’s decision.

4.	The claimant applied for the second decision to be set aside on the ground that she would have liked to attend the hearing before the tribunal but had not realised that she should have reapplied.  On 30 July 2003, a chairman who was not chairman of the original tribunal dismissed that application on the ground that, although the claimant had not been present at the hearing and so the condition of regulation 57(1)(b) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 was satisfied, “it is not accepted as manifestly just in the circumstances to set aside the previous decision on the ground of the Appellant’s absence”.  The claimant then applied for leave to appeal, on the ground that she had not even been informed of the date of the hearing despite the letter notifying her of the chairman’s decision of 4 April 2003 saying that she would be.  A statement of reasons for the decision was prepared and eventually, on 1 October 2003, leave to appeal was refused by the chairman who had previously refused to set aside the tribunal’s decision.  On a renewed application, I granted leave to appeal on 29 December 2003.  The Secretary of State does not oppose the appeal.

5.	Regulation 39 of the 1999 Regulations provides –

(1)	Where an appeal or referral is made to an appeal tribunal, the clerk to the appeal tribunal shall direct the appellant and any other party to the proceedings to notify the clerk to the appeal tribunal in writing whether he wishes to have an oral hearing of the appeal or whether he is content for the appeal or referral to proceed without an oral hearing.

(2)	Except in the case of a referral, a direction under paragraph (1) shall include a statement informing the appellant that, if he des not respond in writing to the direction within the period specified in paragraph (3), the appeal may be struck out in accordance with regulation 46.

(3)	A notification given in accordance with paragraph (1) must be received by the clerk to the appeal tribunal within 14 days of the date of issue of the direction of the clerk to the appeal tribunal under paragraph (1) or within such longer period as the clerk to the appeal tribunal may direct.

(4)	Where a party to the proceedings notifies the clerk to the appeal tribunal in accordance with paragraph (3) that he wishes to have an oral hearing of the appeal or referral, the appeal tribunal shall hold an oral hearing.

(5)	The chairman, or in the case of an appeal tribunal which has only one member, that member, may of his own motion direct that an oral hearing of the appeal or referral be held if he is satisfied that such a hearing is necessary to enable the appeal tribunal to reach a decision.”

Thus it is apparent that a claimant has a right to an oral hearing provided that he or she notifies the clerk within the required time.  If he or she fails to respond to the clerk’s direction at all, the appeal is liable to be struck out.

6.	The problem that is revealed by this case is that clerks do not issue fresh directions under regulation 39(1) if a decision is set aside under section 13.  It seems to be assumed that a claimant who originally wanted a case determined on the papers will still want that done where a decision has been set aside.  However, that is, in my view, an unjustified assumption.  Presumably a substantial proportion of those who opt for paper hearings expect to have reasonable prospects of success.  It seems obvious that some of those will reassess their prospects after losing a case and having to apply for leave to appeal.  Furthermore, it is widely accepted that those with arguable cases do in fact have a greater chance of success at an oral hearing than at a paper hearing.  I would therefore suggest that fairness dictates that, when a decision made at a paper hearing is set aside under section 13, the claimant is at least offered the opportunity to ask for there to be an oral hearing of the appeal when it is reheard, even if a fresh direction under regulation 39(1) is not issued.  (The same would apply where a decision is set aside by a Commissioner on appeal under section 14, were it not that the practice is always to hold an oral hearing of a case remitted by a Commissioner.)  Those responsible for the legislation might like to consider whether regulation 39 should be amended to make specific provision for cases that are being reheard after a decision has been set aside.

7.	In the present case, the problem appears to have been exacerbated by the terms of the letter sent to the claimant when the first decision was set aside.  I have not seen the precise wording of the letter but it is clear that the claimant understood it to be an indication that there would be an oral hearing when the case was reconsidered.  I see no reason not to accept that the claimant’s understanding was reasonable and that had the letter indicated that there would be another “paper hearing”, she would have asked for an oral hearing.  Even if the clerk had not been minded to extend the time allowed by regulation 39(3), the request might have caused the tribunal to decide that there should be an oral hearing.  I am prepared to accept that there was a breach of the rules of natural justice in that she was inadvertently misled into not asking for the oral hearing she wanted.

8.	I observe that this appal would have been unnecessary had the second decision been set aside on the claimant’s application under regulation 57 of the 1999 Regulations.  Given that she had not in fact had the opportunity of applying for an oral hearing after the first decision had been set aside, I find it difficult to understand the view that it was not just to set the decision aside.  The word “manifestly” does not appear in regulation 57(1).  The claimant’s case may not have been particularly strong on paper but it has not been suggested that it was bound to fail even if the claimant’s written evidence was accepted and the whole point of her wishing to ask for an oral hearing was that she now thought her case might appear stronger if she presented it orally.

	(Signed)	MARK ROWLAND
		Commissioner
		22 March 2004