BM-v-Department for Communities (HB) [2017] NI Com 23

Decision No:  C2/16-17(HB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

HOUSING BENEFIT

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 20 April 2016

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 20 April 2016 is in error of law.  The error of law identified will be explained in more detail below.  Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

2.	I would ask the Legally Qualified Panel Member (LQPM) to note that the appeal has been allowed as I am satisfied that, following the decision of a Tribunal of Commissioners in RGS v Department for Social Development (ESA) ([2016] NICom 39), there has been a procedural irregularity which was capable of making a material difference to the outcome or the fairness of the proceedings.  I have not addressed the manner in which the appeal tribunal addressed the substantive issues arising in the appeal.

3.	For further reasons set out below, I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given.  This is because there is detailed evidence relevant to the issues arising in the appeal to which I have not had access.  Further, there may be further findings of fact which require to be made and I do not consider it expedient to make such findings, at this stage of the proceedings.  Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.

4.	In referring the case to a differently constituted appeal tribunal for re-determination, I direct that the appeal tribunal takes into account the guidance set out below.

5.	It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of his entitlement to Housing Benefit (HB) remains to be determined by another appeal tribunal.  In accordance with the guidance set out below, the newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal.

	Background

6.	On 22 November 2012 a decision maker made a decision which superseded an earlier decision dated 21 August 2012 itself awarding an entitlement to HB and revised all subsequent decisions.  An appeal against the decision dated 22 November 2012 was received on 4 December 2012.  On 11 December 2012 the decision dated 22 November 2012 was reconsidered but was not changed.

7.	The appeal tribunal hearing took place on 20 April 2016 and proceeded as an appeal to be determined on the ‘papers’ alone.  The appeal tribunal disallowed the appeal and confirmed the decision dated 22 November 2012.

8.	An application for leave to appeal to the Social Security Commissioners was received in the Appeals Service (TAS) on 4 July 2016.  On 5 July 2016 the application for leave to appeal was refused by the LQPM.

	Proceedings before the Social Security Commissioner

9.	On 15 July 2016 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 7 September 2016 observations on the application for leave to appeal were requested from Decision Making Services (‘DMS’).  In written observations received on 29 September 2016, Mr Barker, for DMS, conceded that the decision of the appeal tribunal was in error of law.  Despite that, he submitted that, nonetheless, the decision of the appeal tribunal on the substantive issues was correct.

10.	Written observations were shared with the appellant and his representative on 29 September 2016.

11.	On 22 March 2017 I granted leave to appeal.  In granting leave to appeal I gave, as a reason, that it was arguable that a procedural error had occurred in the manner in which the appeal was listed for hearing.  On the same date I directed that an oral hearing of the appeal should be held.

12.	The oral hearing took place on 27 April 2017.  The appellant was present and was represented by Mr Douglas.  The Department was represented by Mr Barker.  I am grateful to all of the parties for their constructive observations, comments and suggestions.

	Errors of law

13.	A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.  What is an error of law?

14.	In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals. As set out at paragraph 30 of R(I) 2/06 these are:

“(i)	making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);
(ii)	failing to give reasons or any adequate reasons for findings on material matters;
(iii)	failing to take into account and/or resolve conflicts of fact or opinion on material matters;
(iv)	giving weight to immaterial matters;
(v)	making a material misdirection of law on any material matter;
(vi)	committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …
Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’).  Errors of law of which it can be said that they would have made no difference to the outcome do not matter.”

	Analysis

15.	In his constructive and helpful written observations, replicated in his Case Summary, Mr Barker made the following submissions:

‘In his letter dated 27/04/2016 and in his application for leave to appeal, (the appellant) has indicated that he was unaware that his appeal against the decision dated 22/11/2012 was heard on 20/04/2016.  Further, it is stated at point 2 of the Tribunal’s Record of Proceedings that;

“(The appellant) did not reply to any notifications in respect of his appeal and it was therefore listed for a paper determination”. 

The Department supports this application for leave to appeal on the ground outlined in paragraph 21 of these observations.  This is in accordance with RGS-v-Department for Social Development (ESA) [2016] in which a Tribunal of Commissioners held at paragraph 45; 

45. Whereas the Decisions and Appeals Regulations are silent on which of these options should have been followed, we consider that the jurisprudence of the ECtHR points to a conclusion.  On the basis of Miller v Sweden, we conclude that the appellant had a right to an oral hearing in the context of the system of ESA appeals.  On the basis of Schuler-Zgraggen v. Switzerland we consider that the appellant could have waived his right to an oral hearing by an unequivocal statement to that effect.  In all the circumstances of the case, the fact that the appellant did not return the Reg2(i)d to TAS meant that he had not unequivocally waived his right to a hearing.  We conclude that the determination of his appeal without an oral hearing, in the absence of an unequivocal waiver of his right to an oral hearing, violated the appellant’s right to a fair hearing under Article 6(1) of the ECHR.

The Tribunal of Commissioners further held at paragraph 48;

48. In applying the principles to the present case, we agree with Commissioner Rowland’s statement of the law in CIB/5227/1999.  Regardless of the position under Article 6(1) of the ECHR, we consider that the appellant had a right to an oral hearing as a matter of natural justice in the absence of receiving the Reg2(i)d.  We are therefore further confirmed in our view that the decision of the tribunal in the present case was given in circumstances which were procedurally unfair.

I submit that (the appellant) did not return form Reg2(i)d and therefore did not unequivocally waive his right to an oral hearing.  Accordingly I submit that the principles of the above case apply.  As such the decision of the Tribunal has been given in circumstances that were procedurally unfair and as a result I respectfully submit that this represents an error in law. ’

16.	I agree with this comprehensive analysis and, for the reasons which have been set out by Mr Barker, agree that the decision of the appeal tribunal is in error of law on the basis that there has been a procedural irregularity capable of making a material difference to the outcome or the fairness of proceedings.

17.	That is not the end of the matter, however.  As was noted above, in his original written observations, and in his Case Summary, Mr Barker submitted that despite the procedural error, the decision of the appeal tribunal on the substantive issues was correct.  At the oral hearing of the appeal before me it was abundantly clear that the appellant and his representative were raising matters relating to the substantive issues arising in the appeal.  Indeed, in the period immediately prior to the oral hearing, the appellant and his representative had begun to investigate the evidential basis for the decision under appeal with a view to challenging the evidential basis on which the decision under appeal had been arrived at.  It is evident to me that the issues which the appellant and his representative wished to raise before me were issues which would have been broached by them in an oral hearing before an appeal tribunal had they been given a proper opportunity to attend and participate in such an oral hearing.  In those circumstances it is clearly in the interests of justice to allow such an oral hearing to take place.

	Disposal

18.	The decision of the appeal tribunal dated 20 April 2016 is in error of law.  Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

19.	I direct that the parties to the proceedings and the newly constituted appeal tribunal take into account the following:

(i)	the decision under appeal is a decision of the Department, dated 22 November 2012, in which a decision maker made a decision which superseded an earlier decision dated 21 August 2012 itself awarding an entitlement to HB and revising all subsequent decisions;

(ii)	the appeal is to be relisted as an oral hearing and details of the date, time and venue for the oral hearing are to be forwarded to all of the parties to the proceedings including the appellant and his representative;

(iii)	it will be for both parties to the proceedings to make submissions, and adduce evidence in support of those submissions, on all of the issues relevant to the appeal; and

(iv)	it will be for the appeal tribunal to consider the submissions made by the parties to the proceedings on these issues, and any evidence adduced in support of them, and then to make its determination, in light of all that is before it.

(signed)  K Mullan

Chief Commissioner

23 May 2017