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You are here: BAILII >> Databases >> Northern Ireland - Social Security and Child Support Commissioners' Decisions >> [2006] NISSCSC C5_05_06(IB) (07 February 2006) URL: http://www.bailii.org/nie/cases/NISSCSC/2006/C5_05_06(IB).html Cite as: [2006] NISSCSC C5_5_6(IB), [2006] NISSCSC C5_05_06(IB) |
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[2006] NISSCSC C5_05_06(IB) (07 February 2006)
Decision No: C5/05-06(IB)
DECISION OF THE SOCIAL SECURITY COMMISSIONER
"I wish to appeal to the Commissioner the decision of the Tribunal to disallow me Incapacity Benefit on 24th November 2004.
I wish to state that I never received any notification of the hearing date for the Tribunal and I have checked with my Solicitors, Francis J. Madden & Co., The Square, Coalisland, County Tyrone, who have confirmed to me that they never received any notification either. …"
"It is arguable that the decision was wrong in law, because it seems that the claimant did not receive a fair hearing in the judicial sense in so far as he sought an oral hearing but, through no fault of his, did not receive such a hearing."
"… Please note that the basis of my appeal has already been stated, in that, I never received notification from Appeals Service that my Tribunal had been listed for hearing, as I would have attended the Appeal on the said date if I had of (sic)been notified. …"
"In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
The Commissioner also considered the leading cases on this area of law including Feldbrugge v The Netherlands (1986) 8 EHRR 425 – a decision of the European Court of Human Rights. Applying these basic principles the Commissioner stated:
"49. Rehearsing again the salient features of this case in the light of the above analysis, it is one where the claimant asked, in accordance with regulations, for an oral hearing. The hearing was to be before the only tribunal or court competent to give her case a full hearing as to issues of fact. It was a case in which her presence and evidence were clearly relevant to the issue before the tribunal. She was unrepresented. She was not present at the hearing. The Secretary of State was not represented. There was no clerk present. The tribunal heard the case, and in doing so both assumed it had the capacity to do so and that it did not need to adjourn. It did that because the claimant was assumed to know about the hearing because of the deemed notice provision. But the claimant did not know about the hearing through no fault of her own.
50. The question for me on those facts is whether there was a fair hearing of this case before the decision of the tribunal was made, in the judicial sense of "fair hearing". In my view there was not. This is because the claimant asked for an oral hearing and did not receive it. This was through no fault of her own but because of the operation, against her interests, of a rule of procedure that was not a "fair balance" as between her and the other party to the appeal, the Secretary of State.
51. It does not matter whether that unfairness was the result of the decision of the tribunal itself to continue with the case or whether it was the result of some failure in the method by which the claimant was supposed to be given notice and for which the tribunal itself had no direct responsibility. The essential matter is that the decision under appeal was reached without the tribunal hearing the claimant and without it having any of the permissible grounds for not hearing her. The fact that, technically, the hearing was an oral hearing does not change this. It remained unfair, and therefore wrong in law, for both or either of the above reasons. And that is so regardless of the individual merits of the claimant's appeal, on which I make no comment. The decision under appeal must be set aside so that the case can be relisted to enable her to attend her hearing.
52. More generally, tribunals dealing with cases where claimants have requested an oral hearing but do not appear must have in mind that the reason for the claimant's non-attendance may be that notice was not received by the claimant. It will of course be for the tribunal to assess whether that is of itself a reason to adjourn. But the tribunal should consider that question having in mind the "equality of arms" principle and its duty to provide a "fair and public hearing" where a claimant has asked for one. This applies if the case is one where the presence of the claimant may affect the decision – but, for the reasons indicated above, that is likely to include most appeals. If a tribunal decides a case in the claimant's absence and, as in this case, it subsequently becomes clear that the hearing has not been a fair hearing in this sense, then the decision must be set aside.
53. The most effective way of ensuring that a decision is fair, when taken in the absence of the parties, remains compliance with the approach in R(SB) 19/83 or something similar. This should also ensure that the tribunal has the capacity to hear the case. If that has not proved to be a sufficient safeguard, the tribunal chairman can use section 13(2) of the Social Security Act 1998 to have the matter set aside and referred to an appropriate tribunal so that there is an oral hearing. Alternatively, there can be a set aside on application under regulation 57 or, as in this case, on appeal."
(signed): John A H Martin QC
Chief Commissioner
7 February 2006