[2007] NISSCSC C15_06_07(DLA) (19 February 2007)

Decision No:  C15/06-07(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 10 November 2005

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant, leave having been granted by the legally qualified panel member, against a decision dated 10 November 2005 of an appeal tribunal sitting at Belfast.  My decision is given in the final paragraph.  The tribunal had disallowed the claimant’s appeal against a Departmental decision dated 21 October 2004 and decided that the claimant was not entitled to disability living allowance (DLA) from and including 15 June 2004.  The grounds of appeal to a Commissioner were contained in an OSSC1 form received in the Office of the Commissioners on 18 August 2006.  The grounds were that the tribunal’s decision was in error of law because it was made by a differently constituted tribunal than that which had part heard and adjourned the claimant’s appeal on 6 April 2005.  There had been a hearing on that date which was adjourned at the request of the claimant to enable him to obtain further medical evidence.  The terms of the adjournment were as follows:

	“Relist.

Request General Practitioner’s notes for adjourned hearing.”

2.	When the matter was re-listed for hearing it came before a differently constituted tribunal which reheard the appeal and reached the decision set out above.

3.	The claimant is represented, as he was before the tribunal, by Mr C….. and the Department is represented by Mr Kirk of its Decision Making Services branch.  Mr Kirk opposed the appeal.  He made submissions thereon in a letter dated 16 October 2006.  In those submissions Mr Kirk referred to the fact that the legislation makes no provision governing the constitution of an appeal tribunal in adjourned cases nor does it prescribe that adjourned hearings shall be by way of a complete re-hearing.  He referred to the fact that a previous statutory provision (revoked on 20 May 2002) in what was regulation 51(5) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 had made provision for the situation where a hearing was adjourned and came before a different panel for there to be a complete re-hearing.  Despite the revocation of this provision it was long established practice that adjourned hearings before a different tribunal were re-hearings.  In this connection he referred to decision R(U)3/88 a decision of a Tribunal of Commissioners in Great Britain and to my decision in C32/98(DLA).

4.	Mr Kirk also made submissions on whether the rules of natural justice were breached in that the claimant was denied a fair hearing.  Referring to the “basic requirements” for a fair hearing set out in my decision in C6/06-07(IB) at paragraph 23 he submitted that the claimant had had real and effective access to the tribunal, been notified of the time and place of proceedings, availed of the opportunity to attend and present his case (with his representative) and been given a comprehensive reasoned decision.  Mr Kirk submitted that applying those principles the claimant had had a fair hearing and the rules of natural justice had been adhered to.  He therefore opposed the appeal.

5.	The claimant was afforded an opportunity (by letter dated 23 October 2006) to make comment on these submissions but did not do so.

	Reasons

6.	Mr Kirk is correct in his submission in that there is no statutory provision governing the constitution of a tribunal following an adjourned hearing.  It is also worthy of note that the original tribunal which adjourned the appeal did not stipulate that the matter come before the same tribunal again.  The original tribunal had reached no factual conclusions and, it appears, was at a relatively early stage of the exploration of evidence when a discrepancy between the claimant’s contentions (that he had severed tendons in his right hand) and the medical evidence became apparent.  Following this the claimant sought and was granted an adjournment to obtain further medical evidence.  There is no error in law in the tribunal at the post-adjournment hearing being differently constituted than the original tribunal.  The constitution of tribunals is governed by the above-mentioned Regulations and there is no breach of any of the relevant regulatory provisions in the matter being re-heard by a differently constituted tribunal.

7.	Similarly, I can ascertain no breach of the rules of natural justice.  It is quite apparent that the new tribunal conducted a complete re-hearing and thoroughly explored the evidence.  The claimant, who was represented, raised no objection to the new tribunal at its hearing. It is also apparent that the claimant and his representative were given adequate opportunity to present their case.  The claimant may feel that he would have done better under the original tribunal but, having seen the record of its proceedings, I am by no means convinced that this was likely.  In any event it is of no relevance as there was no error in the matter being re-heard by the differently constituted tribunal and no breach of the right to a fair hearing by that tribunal.  I consider there to be no merit in the claimant’s grounds of appeal.

8.	I did have some minor concerns about the tribunal’s statement of reasons in that they appear to include some matters which were not part of the tribunal’s reasons.  These matters were the consideration by the legally qualified panel member, as chairperson, of the claimant’s ground of appeal against the tribunal’s decision.  They could not therefore form part of the reasons for that decision and should not have been included in the statement of reasons.  However, despite that, I consider the decision is not in error of law.  The reasons proper adequately explain the decision.  The tribunal has obviously considered and assessed the evidence.  Its assessment is neither unreasonable nor perverse.  Its conclusions are sustainable on the accepted evidence and the statutory conditions have been correctly considered and applied. The inclusion of some matters extraneous to the reasons is insufficient to render the decision in error of law.

9.	The appeal is dismissed.

(signed):  M F Brown

Commissioner

19 February 2007