Decision No:  C22/04-05(DLA) 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 7 August 2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by me, by the claimant against a decision dated 7 August 2003 of an Appeal Tribunal sitting at Belfast.  That Tribunal disallowed the claimant’s appeal in relation to Disability Living Allowance (DLA) and decided that the claimant was not entitled to the mobility component of DLA from and including 16 October 2002 but was entitled to the middle rate of the care component of DLA from and including 16 October 2002 until 15 October 2004.

2.	My decision is given in the final paragraph.

3.	In the appeal to a Commissioner the claimant has been represented by Mr Fitzsimmons of Messrs Kevin R Winters & Co, Solicitors and the Department has been represented by its Decision Making Services Branch (DMS), latterly by Mr McNamara of that branch.  As Mr McNamara was involved in the hearing of the case on 12 January 2005, I shall refer to all points as having been made by him even though on occasion points were made by others in that branch.

4.	The factual background to the case is that the claimant appealed against a Departmental decision dated 6 December 2002.  On his appeal form he ticked the box indicating that he wanted his appeal decided on the papers only and he maintained this wish up to and including the date of appeal to a Commissioner.  In that connection I would refer to his Solicitor’s letter of 19 November 2003 which contains the following sentence:-

“The case was held as a paper hearing at the request of the appellant”

It appears to be common case that the claimant was aware that his appeal was being determined on the papers and that was his wish.  It is also common case that the claimant was not sent a direction by the tribunal clerk under Regulation 39(1) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999.
That paragraph provides as follows:-

“Where an appeal or a 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 referral or whether he is content for the appeal or referral to proceed without an oral hearing”.  

It appears that the clerk was aware that the claimant did not wish to have an oral hearing but wished his appeal to be determined on the papers, however the said direction was not sent out.

5.	The grounds of appeal were essentially as follows:-

1.	That the Tribunal should have adjourned as the claimant’s oral evidence would have been essential to it.
2.	That the European Convention on Human Rights, Article 6 had, implicit within it, an obligation to conduct an oral hearing.

(At a later stage in the correspondence the Solicitors conceded that the arguments based on the European Convention were without merit and I am in agreement with them in relation to that and therefore propose to comment no further on those grounds.)

6.	The Department made observations on the appeal by letters dated 26 April 2004 and 19 August 2004.  A hearing was held and adjourned to afford the Solicitors and the claimant a further opportunity to attend.   I held a further hearing of the appeal which neither the Solicitors nor the appellant attended.  Mr McNamara attended both hearings and he submitted that, while there was an error in that the direction under Regulation 39(1) had not been given, in this particular case that error did not vitiate the decision.  He referred to my decision C15/03-04 as indicating that not every decision would be vitiated by non-compliance with Regulation 39(1).  He distinguished C15/03-04 on the facts in that in C15/03-04 the claimant appeared to have been confused about the entire appeal and in this case the claimant had obviously throughout wished his appeal to the Tribunal to be determined on the papers.  I am in agreement with Mr McNamara’s submissions.

7.	As regards whether or not the Tribunal should, of its own volition, have adjourned to request the claimant’s attendance, I do not consider there is any merit in that ground.  I agree with the submission in the Department’s letter of 26 April 2004 that the Tribunal had evidence from the claimant, the General Practitioner and the Examining Medical Practitioner and that it was not therefore unreasonable for the Tribunal to proceed to determine the matter on the papers.  The claimant had been given the opportunity to consent to the release of medical records and had not done so.  Part of the argument was that there was a paucity of medical evidence which therefore necessitated the claimant’s attendance.  It appears to me that there was enough evidence for the Tribunal to proceed without the claimant being present.  I find it somewhat strange for the claimant to complain of it being unreasonable for the Tribunal to proceed when he had not consented to the release of records which would have provided further medical evidence. I find no merit in this ground because the Tribunal, even without these records, had adequate evidence on which to proceed.

8.	For the above reasons I dismiss this appeal.

(Signed):	M F Brown
		Commissioner

(Dated):	3 February 2005