CIB_2533_2008 [2008] UKSSCSC CIB_2533_2008 (17 September 2008)

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Cite as: [2008] UKSSCSC CIB_2533_2008

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[2008] UKSSCSC CIB_2533_2008 (17 September 2008)


     
    CIB 2533 2008
    DECISION OF THE SOCIAL SECURITY COMMISSIONER
  1. I allow the appeal. For the reasons below, the decision of the tribunal is wrong in law. It is set aside. I refer the appeal to a new tribunal to retake the decision in accordance with the directions in this decision.

  2. The claimant and appellant is appealing with my permission against the decision of the Newcastle upon Tyne tribunal on 16 04 2008 under reference 228 08 00256.

  3. DIRECTIONS FOR REHEARING

    4. A The rehearing will be at an oral hearing.
    B The new tribunal should not involve any member who has previously been a member of a tribunal involved in this appeal.
    C The claimant is reminded that the tribunal can only deal with the appeal as at the date of the original decision under appeal.
    D If the claimant has any further written evidence to put before the tribunal, this should be sent to the tribunal within one month of the issue of this decision.

    These directions are subject to any later direction by a district chairman.

    REASONS FOR THE DECISION
  4. The parties have agreed that I should set aside the decision of the tribunal, and refer it for rehearing, for the reasons given when I granted permission to appeal. In doing so, I noted that two days before the oral hearing the appellant she asked if it could be postponed because she felt ill. This was refused by a chairman (not the chairman of the tribunal) on the day of the tribunal. There is no indication that the refusal was communicated to the appellant either in writing or otherwise.

  5. The appellant attended the hearing unrepresented but accompanied by her sister. The papers suggest that the tribunal was aware of the decision not to postpone. There is nothing to indicate that this was notified to the appellant by the clerk or the tribunal or that the tribunal asked her asked her about it.

  6. The notice refusing the postponement was dated the same day as the tribunal hearing. It therefore could not have been part of the papers sent to the parties. So it should have been recorded as received at the hearing, if it was. And the tribunal should have checked that the appellant had also received it. That was unlikely unless she was given it by the clerk just before the hearing. Alternatively, the notification of the refusal was not before the tribunal, and the bundle of papers presented to me at this appeal is in the wrong order. If it was not before the tribunal, and the tribunal knew about it (as the chairman has asserted) then again the tribunal had a duty to check the position. There is no record of any check.

  7. On either alternative, the matter should have been raised by the tribunal with the appellant. This is because regulation 51 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 requires both a request for a postponement made before a tribunal hearing, and the response to the request, to be notified in writing. It also requires that the matter be drawn to the attention of the tribunal by placing before it both the request and the notification of refusal. It is not enough that the decision not to postpone is placed before the tribunal if it has not been notified. As the appellant's representative noted, this was discussed by Commissioner Bano in CDLA 4389 2004, echoing the decision of another Commissioner in CDLA 4462 2000. The requirements of the law are clear, so I must again echo the point.

  8. Those requirements can be waived by the parties. They are protective measures to ensure fairness, and can be waived by a party if that party accepts that there is no prejudice. But that cannot be done by the tribunal without asking the party concerned. Fairness therefore requires that a tribunal deal with the matter expressly.

  9. As I must set aside the tribunal decision on those grounds, I refer the appeal to a new tribunal to retake the decision without commenting on the other grounds of appeal.

    10. David Williams
    Commissioner
    17 09 2008
    [Signed on the original on the date shown]

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