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[2004] NISSCSC C16/04-05(DLA) (25 January 2005)

Decision No: C16/04-05(DLA) & C17/04-05(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 22 July 2003
DECISION OF THE DEPUTY SOCIAL SECURITY COMMISSIONER
1. This decision is concerned with two appeals by the claimant, with my leave, against decisions of the appeal tribunal sitting at Downpatrick on 22 July 2003 ("the appeal tribunal"). For the reasons set out below, both decisions are erroneous in point of law. I therefore set them aside and refer both cases to a differently constituted tribunal ("the new tribunal") for a complete rehearing.
2. Short details of the two appeals are as follows.

(i) The first appeal is against a decision dated 13 June 2001. This was a supersession decision. It superseded an earlier decision dated 16 February 1998, which had awarded the claimant the higher rate of the mobility component and the middle rate of the care component. The supersession decision removed all entitlement to both components from and including 13 June 2001.

(ii) The second appeal was against a decision dated 23 March 2002. The applicant had made a further claim for benefit. By the decision of 23 March 2002, she was awarded the middle rate of the care component from and including 14 November 2001 until 13 November 2003. She was refused the mobility component from and including 14 November 2001.

3. I have the considerable benefit of submissions made by Mrs Ann Fleming of the Decision Making Services of the Department for Social Development on 8 August 2004. I am grateful to Mrs Fleming for her assistance. In her submissions she analyses the two appeals with clarity. She goes on to submit that the appeal tribunal erred in law in respect of both of these and she explains why she considers this to be the case. She goes on to submit that the appropriate course of action would be to remit both appeals to the new tribunal for rehearing. The claimant has been given an opportunity to comment on Mrs Fleming's submissions but has not done so.
4. I accept Mrs Fleming's submissions, and the reasons which she gives, and accordingly allow the appeals. Those reasons are summarised in the following paragraph. The new tribunal should have regard to Mrs Fleming's submissions. It must distinguish between the two decisions under appeal to it. Logically it should deal with the appeal against the supersession decision dated 13 June 2001, before moving on to the decision dated 23 March 2002, which was a decision disposing of a further claim.
5. The first of the two appeals – namely, that against the supersession decision – had been the subject of two hearings prior to 22 July 2002. These took place on 15 February 2002 and 30 April 2002. On each of these occasions that appeal was adjourned in order to enable certain medical evidence to be obtained. That evidence was not available at the third, and final, hearing on 22 July 2002, and the error which Mrs Fleming identifies, and which I accept, is the failure by the appeal tribunal to consider the lack of compliance with the directions given by the earlier tribunals and to consider how it should proceed in the absence of the required medical evidence. Mrs Fleming puts it this way:

"… I would submit that the Tribunal in this case erred in law by failing to give any reasons why it considered it appropriate to proceed without the evidence deemed necessary to decide the case on two previous occasions."

Having submitted that both appeals should be remitted, because the medical evidence was relevant to both of them, she ends by saying this:

"… I would submit that the new Tribunal should decide whether it needs the evidence which two previous Tribunals adjourned for and if it decides that it does not it should provide reasons for this conclusion."

6. I agree with that comment and so direct the new tribunal. I do not know about Northern Ireland, but my experience in Great Britain is that it is not uncommon for an appeal to come before a tribunal without there being available evidence which an earlier tribunal had directed should be obtained and for the obtaining of which an adjournment had been granted. What the later tribunal should do will depend on the circumstances. These include the importance of the particular evidence and the reasons why it has not been produced. For example, the evidence may not actually exist. What the later tribunal must, however, do is acknowledge the failure to comply with the earlier direction and decide how to proceed. Further, a brief explanation should be given unless the reasons for proceeding in a particular way are apparent from the circumstances.
7. However, if the evidence exists it will be far, far better if it is obtained and put before the new tribunal. The first tribunal directed the claimant to obtain the required medical evidence. On the second occasion the onus of obtaining the evidence was placed on the Appeals Service. In the circumstances, it seems appropriate that both parties should try and obtain this evidence and should assist each other to do so. If the evidence cannot be obtained, then at the very least the new tribunal should be told whether or not it exists and, if it does, why it is not possible to produce it.
8. For these reasons I allow the appeal.

(signed): J P Powell

Deputy Commissioner

25 January 2004