[2006] UKSSCSC CDLA_1490_2006 (06 September 2006)
CDLA/1490/2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.	This is an appeal by the Claimant, brought with my permission, against a decision of the Watford Appeal Tribunal made on 17 January 2006. For the reasons set out below that decision was in my judgment erroneous in law. I allow the appeal, set aside the Tribunal’s  decision and remit the matter for redetermination by an entirely differently constituted appeal tribunal. 

2.	The Claimant is a woman now aged 25. She was detained in hospital on 4 May 2005 under section 2 of the Mental Health Act following a mental health assessment, and was diagnosed to be suffering from an acute psychotic episode, manifesting itself in disorganised behaviour, delusional beliefs and thought disorder. She was discharged from hospital on 29 June 2005, and claimed disability living allowance on 10 August 2005. In a report dated 31 October 2005 her psychiatrist said that she was responding well to medication and was currently in a relatively stable mental state. 

3.	By a decision made on 4 November 2005 the claim was refused. The Claimant appealed. 

4.	On the Appeals Service Enquiry form, which she completed on 17 December 2005, she ticked the box indicating that she wanted a paper hearing, and did not give details of any representative. She enclosed with the completed form a letter, also dated 17 December, which may well have been typed by her father and which concluded by saying: “I apologise for not attending an oral appeal but I do not think I could cope with it.” 

5.	The Tribunal, after a hearing on the papers, dismissed the appeal. Its detailed and careful Statement of Reasons included the following: 

“The Tribunal first considered whether they could reach a decision on the appeal in the absence of the appellant. They noted that …. the appellant has sent in a typescript letter indicating that she would not be attending an oral hearing as she did not think she could cope with it. Although she is supported by a Mental Health Team she did not indicate that anyone from the Mental Health Team supporting her or her parents or that any of those persons involved with her care would be attending. It is a matter for the appellant and the Tribunal cannot compel the attendance of an appellant or anyone on their behalf.”

6.	One of the grounds for this appeal is that the Claimant asked for a paper hearing because she was led by information supplied by the Appeals Service to believe that “my father would not be allowed to attend on my behalf to explain my evidence person to person as he attends all hospital and GP appointments with me.” 

7.	The information in question was in an Appeals Service information document entitled “How to appeal – a step-by-step guide.” On pages 16 to 17, under the heading “representatives”, is the following:

“Even if you have an excellent representative, the tribunal at an Oral Hearing will almost certainly want to speak directly with you, person-to-person, asking you questions and listening to your answers. It is not acceptable for a representative to give your evidence on your behalf. This is because you will have first-hand knowledge and experience of the things the tribunal will want to hear, whereas your representative would only be able to give a second-hand version. For example, if your appeal involves problems you may have in walking, the tribunal will be very interested in hearing from you, in your own words, how you feel when you try to walk any distance. ……….”

8.	The passage which I have referred to in that document was I think directed primarily to evidence from a representative which is derived solely from what a claimant has told him, and not to evidence derived from the representative’s own observation or experience. However, I can see how that passage could well have been read by the Claimant and/or her father as meaning that the Claimant’s father would not be permitted to give evidence as to her condition and capabilities, because the Tribunal would only be prepared to hear evidence about that from the Claimant herself. That, however, is not the law (as indeed the passage which |I have quoted from the Tribunal’s Statement of Reasons recognised). A representative who has observed the Claimant’s condition is entitled to give evidence of what he has seen and heard, although of course the Tribunal, in the exercise of its discretion to control the conduct of the hearing, may require the claimant to deal with the relevant matters in evidence first if the claimant is present, and may restrict the extent to which the representative gives evidence about matters which the claimant’s own evidence has already covered: see CDLA/1138/03; CDLA/2462/2003. 

9.	In view of the fact that the Claimant and/or her father do appear to have been misled by the information in the Appeals Service guide, and would have asked for an oral hearing if they had appreciated that the Claimant’s father would be permitted to give evidence, I think that there was an inadvertent breach of natural justice and that the Tribunal’s decision must be set aside. The Secretary of State supports the appeal on that ground. Whether the relevant passage in the guide should be modified is a question which the Appeals Service may wish to consider. 

	(signed on the original)	Charles Turnbull
		Commissioner
		6 September 2006