Commissioners file:  CDLA/164/2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The appeal succeeds.  The decision of the Torquay Appeal Tribunal given on 7 June 2001 is set aside for want of reasons and the case is remitted to a new tribunal for rehearing.

2.	On 16 May 1997 a disability appeal tribunal awarded the claimant the highest rate of the care component of disability living allowance from 18 July 1996 until 17 July 2001.  No award was made of the mobility component.  This decision as to the mobility component was reviewed in August 1998 on the ground that there had been a deterioration in the claimant’s condition, but the adjudication officer decided on 11 August 1998 not to revise the earlier decision.  The adjudication officer was not required to review the award of the care component and expressly did not do so.  This decision was reviewed on 21 May 1999 by another adjudication officer, following the receipt of further medical reports on the claimant.  On this occasion, the adjudication officer decided that the claimant was not entitled to either component of disability living allowance from 21 December 1998. 

3.	The claimant appealed this decision, and on 5 July 2000 the appeal was dismissed by an appeal tribunal in the absence of the claimant.  This decision was subsequently set aside  on 19 December 2000 as there was doubt whether the claimant had received notification of the hearing, and his solicitors had not received notice because their address had been wrongly recorded by the appeals service.

4.	The appeal was eventually heard on 7 June 2001, when the claimant attended and gave evidence.  It appears from the record of the proceedings that a new claim had been made on 25 October 2000 and that a decision had been made on 19 February 2001 not to award disability living allowance on that claim because it was said that the claimant had failed to submit himself for a medical examination.  As a result, the tribunal hearing was concerned only with the period from 21 December 1998 to 24 October 2000.

5.	According to the claimant, at the end of the hearing he was told that he would be notified of the result.  The presenting officer at the hearing has confirmed that it was his invariable practice to record the result of an appeal where it is announced at the hearing and that he did indeed record the decision in the following case.  The presenting officer was therefore clear in this case the decision was not given at the hearing.  The tribunal chairman, on the other hand, has written by letter dated 7 June 2001 that, while he cannot confirm that the decision notice was personally handed to the claimant on the day, the conclusion was issued at the conclusion of the hearing and was not a reserved decision.

6.	It is clear that the decision was not reserved, as the relevant disability centre has confirmed that it recorded the decision the following day, so that it would appear that the decision notice was issued on 7 June.  However, in view of the evidence of the presenting officer and of the claimant, it appears to me that, for whatever reason, while the decision was not reserved, it was not announced at the conclusion of the hearing, and there is no evidence that the claimant was handed a decision notice on that day.

7.	The appeals service plainly sent a copy of the decision notice to the relevant disability centre on 7 or 8 June, but the claimant states that he did not receive a copy.  There is also a report of a conversation with the clerk responsible for issuing the decision, who has stated that she would have issued it on the same day, but, not surprisingly after many months, she could not remember the case.  There is also a computer record that the decision was issued on 7 June, but no clear record that it was sent to the claimant.

8.	According to the claimant’s solicitors, their understanding from the claimant was that judgment had been reserved.  When nothing was heard from the appeals service by the claimant, he contacted his solicitors who in turn contacted the Cardiff office of the appeals service by telephone on 10 July 2001.  The solicitors’ attendance note of that conversation reads “Decision was made    will send out duplicate copies to me tonight  [solicitors’] office address given”.

9.	Nothing further having been heard by the solicitors, by letter of 8 August 2001 they wrote to the appeals service referring to the telephone discussion on 10 July, and continued 

“In that telephone conversation, you agreed to forward to both us and our client and [sic] copy of the tribunal’s decision.  We understand that a reserved judgment was made.

Neither our client nor ourselves have received a copy of the tribunal’s decision.  Please forward the same to both us and our client by return.  We trust that our client’s rights of appeal will not be affected by this delay.”

10.	Once again, nothing was heard from the appeals service, and a further letter was sent by the solicitors dated 9 October 2001, enclosing a copy of the previous letter and asking for a copy of the tribunal’s decision, record of proceedings, and written reasons for decision.  The fact that no new giro books had been issued to the claimant had by then led to the obvious conclusion that the decision had been adverse to the claimant.  This letter dated 9 October resulted in a telephone call to the solicitors from the appeals service on 26 October requesting copies of the earlier letters.  

11.	The request for written reasons was dealt with by a district chairman who determined in November 2001 that the tribunal chairman should not be asked to provide the statement because he had not extended the time for requesting a statement because reasons given for an extension did not amount to special circumstances.

12.	Under regulation 53(4) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, the request for the statement of reasons had to be made within one month of the sending or giving of the decision notice to every party to the proceedings or within such longer period as may be allowed in accordance with regulation 54.  Under regulation 54(4) an application for an extension of time shall not be granted unless the panel member dealing with the application is satisfied that it is in the interests of justice for the application to be granted.  Regulation 54(5) provides that it is not in the interests of justice to grant the application unless the panel member is satisfied that (a) certain specified conditions existed which do not apply here or (b) some other special circumstances are relevant to the application.

13.	The first question which the chairman ought to have considered was when the decision notice had been sent to the claimant.  For this purpose he ought to have had the correspondence with the solicitors, which he would have also needed in order to consider the issue of special circumstances.  Given the matters raised by the correspondence, I would have expected some investigation of the evidence as to the sending of the decision notice to the claimant and a specific finding on the matter.  Instead the chairman has simply accepted the assertion of the tribunal clerk that the decision was issued, without even considering whether the decision notice had been sent to all the parties.  He also gives no reasons why the reasons given for an extension of time do not amount to special circumstances.

14.	In Flannery v. Halifax Estate Agencies Ltd., [2000] 1 WLR 376, at 381, the Court of Appeal commented on the duty to give reasons as follows:

“(1) The duty of a judge to give reasons for his decision is a function of the judicial process, and therefore of justice.  Its rationale has two principal aspects.  The first is that fairness surely requires that the parties especially the losing party should be left in no doubt why they have won or lost.  This is especially so since without reasons the losing party will not know … whether the court has misdirected itself, and thus whether he may have an available ground of appeal on the substance of the case.  The second is that a requirement to give reasons concentrates the mind;  if it is fulfilled, the resulting decision is much more likely to be soundly bases on the evidence than if it is not.

(2) The first of these aspects implies that want of reasons may be a good self-standing ground of appeal.  Where because no reasons are given it is impossible to tell whether the judge has gone wrong on the law or the facts, the losing party would be altogether deprived of his chance of appeal unless the court entertains an appeal based on the lack of reasons itself.”

15.	In considering whether there are sufficient special circumstances to justify extending the time for seeking reasons, a judge must consider whether a refusal could be said to deprive a claimant of due process and the discretion must be exercised in favour of the claimant if a decision to refuse an extension would deprive him of due process.  There must inevitably be cases where through no fault of the claimant the decision notice is not received until more than one month after it is sent or for some other reason, not specifically spelled out in regulation 54, the claimant is unable, or cannot reasonably be expected, to seek a statement of reasons until more than one month has gone by.  If such a party had then no right to a statement of reasons, then he would be deprived of due process.  The provision as to special circumstances in regulation 54(5) must be read in this context.

16.	Justice requires that a party should know the reasons for a decision if that party wishes to know.  That party cannot expect that he or she can ask at any time for reasons.  There must be a reasonable time limit which will depend on the circumstances.  Within one month of the sending or giving of the decision notice the regulations provide that there is an absolute right to reasons.  In most cases, when a claimant receives the decision notice in the post within a few days of its being posted, that provides ample time for reasons to be sought, and if a party does not request them within that time, special circumstances must be shown to justify an extension of time for the request.   

17.	In the present case, as I have found, the claimant understood that the decision had been reserved, and did not know from the hearing what it was.  As he was not told of the decision at the hearing, his understanding was entirely reasonable.  It is not entirely clear whether the decision notice was in fact sent out to the claimant but if it was sent out, I see no reason to disbelieve him when he says that it was not received.  He was plainly in touch with his solicitors, and his solicitors in turn were chasing the appeals service 5 weeks after the hearing.  Unfortunately the appeals service then neglected to do what had been promised, and ignored the reminder sent on 8 August 2001.  Although from 10 July 2001 the claimant’s solicitors knew that a decision had been reached, at first they did not know if the claimant had been successful.  That he had been unsuccessful only gradually emerged as the weeks went by and the claimant received no giro books.

18.	Even the letter of 9 October from the solicitors, which I have found on the tribunal file with a received stamp of 10 October, was not dealt with for over two weeks after its receipt.

19.	In my judgment, on the assumption that a decision notice was indeed sent to the claimant on 7 June 2001, the circumstances in which the claimant had reasonably understood that the decision on his appeal had been reserved, had not been told the result of his appeal at all and has not received a decision notice are plainly special circumstances within regulation 54(5).  The combination of those circumstances and the gross delay on the part of the appeals service in dealing properly with the solicitors’ repeated requests for a copy of the decision make this a case in which the only proper exercise of the judicial discretion to extend time would be to have extended it, assuming, which I doubt, that any extension was called for.  Not to extend time meant that the claimant was deprived of due process.  

20.	In the circumstances, the original decision is in error of law for want of reasons, and must be set aside.  The case is remitted to be heard by a new tribunal.  I express no views on the merits of the case, which I have not considered except insofar as it is apparent to me that the matter is not so clear as to enable me to determine it rather than send it back to a new tribunal.

(signed)	Michael Mark
		Deputy Commissioner

		12 July 2002