CDLA/4389/2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER

  1.  My decision is that the decision of the tribunal is erroneous in point of law.   I set aside the tribunal's decision and, since it is not expedient for me to make the findings of fact which are necessary to decide what decision the tribunal should have given, I refer the case for rehearing before a differently constituted tribunal.

2.  This is an appeal, brought with my leave, against the decision of the tribunal dismissing the claimant’s appeal against a refusal of disability living allowance following a renewal claim made on 7 July 2003.  The appeal was listed for hearing on 19 April 2004, but in a letter received on 14 April the claimant wrote to a tribunal clerk asking for the appeal date to be “cancelled” and for a new date to be sent to her.  No reply was sent to the letter, but it was passed to the tribunal at the hearing and treated as a postponement request.  The postponement was refused by the tribunal and the hearing therefore proceeded in the claimant’s absence.

3.  I agree with the Secretary of  State’s representative that that course of action was incorrect.  Regulation 51 of the Social Security (Decisions and Appeals) Regulations 1999 provides:

“(1)  Where a person to whom notice of an oral hearing is given wishes to request a postponement of that hearing he shall do so in writing to the clerk to the appeal tribunal stating his reasons for the request, and the clerk to the appeal tribunal may grant or refuse the request as he thinks fit or may pass the request to a legally qualified panel member who may grant or refuse the request as he thinks fit.

(2)  Where the clerk to the appeal tribunal or the panel member, as the case may be, refuses a request to postpone the hearing he shall-
(a)  notify in writing the person making the request of the refusal; and
(b)  place before the appeal tribunal at the hearing both the request for the postponement and notification of its refusal”

4.  I agree with deputy Commissioner Mark in CDLA/4462/2000 that regulation 51 requires that a tribunal clerk who receives a postponement request must do one of three things: grant the request, refuse the request, or pass it to a legally qualified panel member.  The Regulation does require the clerk to place the request for the postponement before the appeal tribunal at the hearing if the clerk refuses the postponement request, but in that case the clerk must notify the person making the request in writing of the refusal and place both a copy of the request and the notification of its refusal before the tribunal.  As the Secretary of State’s representative has pointed out, the claimant in this case may have gained the impression from her conversations with the clerk that she had only to write asking for the hearing to be cancelled for it to be postponed.  The procedure in regulation 51 ensures that a person who makes a postponement request is made aware prior to the hearing of the outcome of the request, and the failure to follow the procedure in this case rendered the tribunal’s decision erroneous in law.

5.  The claimant’s earlier award of higher rate mobility component had been superseded and that decision had been upheld by a tribunal.  The claimant contends that the tribunal should not have been informed that her previous award had been “revoked”, but I agree with the Secretary of State’s representative that there is nothing in this ground of appeal.  The tribunal were in no way bound by the decision of the earlier tribunal, but they were fully entitled to refer to the previous adjudication history as part of the background.

6.  However, the claimant’s appeal must succeed for the reasons which I have given.  Since it is clearly not possible for me to decide the claimant’s entitlement to disability living allowance, I refer the case for re-hearing in its entirety by a differently constituted tribunal.  

	(signed on the original)	E A L BANO
		Commissioner		
		
	(Dated)	15 June 2005