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You are here: BAILII >> Databases >> Northern Ireland - Social Security and Child Support Commissioners' Decisions >> SG-v-Department for Social Development (DLA)(T) [2013] NICom 12 (14 February 2013) URL: https://www.bailii.org/nie/cases/NISSCSC/2013/12.html Cite as: [2013] NICom 12 |
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SG-v-Department for Social Development (DLA)(T) [2013] NICom 12
Decision No: C37/11-12(DLA)(T)
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 8 June 2011
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by the claimant from the decision of an appeal tribunal which sat on 8 June 2011 at Ballymena. Leave to appeal was granted by the legally qualified member (LQM) of the tribunal.
2. On 20 June 2012, the Chief Commissioner directed, in exercise of the powers conferred on him by Article 16(7) of the Social Security (NI) Order 1998, that this appeal be dealt with by a Tribunal of Commissioners as it involved a question of law of special difficulty. We held a hearing of the appeal on 30 November 2012.
3. For the reasons we give below, we consider that the decision of the appeal tribunal was erroneous in point of law. We set aside the decision of the tribunal under Article 15(8)(b) of the Social Security (NI) Order 1998 and we refer it to a newly constituted tribunal for determination.
REASONS
The background circumstances and the tribunal decision
4. The claimant claimed disability living allowance (DLA) from the Department for Social Development (the Department) on 24 March 2009. The claim was based on care and mobility needs arising from a variety of conditions including severe back pain, arthritis, muscle spasms, hiatus hernia, pins in his right leg, depression, sleeping disorder, heart problems and two operations for a detached retina. By a decision of 26 July 2009 the Department disallowed the claim. The claimant brought an appeal against that decision.
5. The
appeal was listed for hearing on 30 November 2009. However, on 23 November
2009 the claimant requested a postponement
on the basis of “depression and
other illnesses” and indicated that he would obtain a letter from his general
practitioner (GP) when he returned from holiday with a view to arranging
another date. On 25 November 2009 a LQM of the tribunal granted a
postponement.
6. The
appeal was relisted for hearing on 13 January 2010. On 9 January 2010 the
claimant again wrote to request a postponement.
This was on the basis that his
GP had advised him to send in his medical notes to the tribunal and he would
need more time to do this. A supporting letter to this effect from the GP,
dated 8 January 2010, was enclosed. At this time the claimant had not yet
consented in writing to the release of his medical records and it would appear
from the file that the application for
postponement
was not dealt with by the
Appeals Service. Instead, an oral hearing was convened on 13 January 2010. The
claimant attended. At the hearing the claimant signed a relevant consent form
and the tribunal
adjourned
the appeal in order to enable the claimant’s medical
records to be obtained and to enable him to obtain representation.
7. The
appeal was relisted for hearing on 14 April 2010. On 6 April 2010 the claimant
wrote to request a postponement.
This was on the basis that he had not got
anyone to represent him yet. On 12 April 2010 a LQM granted the
postponement.
8. The
appeal was not relisted until 13 October 2010. The claimant made a request for
postponement
on 7 October 2010, indicating that he had prostate cancer and was
awaiting scan results. This was an unsigned application and it appears that
the
postponement
application was rejected by the clerk to the tribunal on that
basis. We observe that regulation 51 of the Social Security and Child Support
(Decisions and Appeals) Regulations (NI) 1999 (“the Decisions and Appeals
Regulations”) requires an application for
postponement
to be in writing and to
state reasons for the
postponement
request. Unlike regulation 33 of the
Decisions and Appeals Regulations which governs appeals, however, there is no
express requirement that a
postponement
application should be signed by the
person making the application. It therefore appears to us that it was a valid
postponement
request. However, it was not dealt with.
9. On
13 October 2010 the tribunal convened to hear the appeal. The claimant did not
attend. The tribunal found that the claimant still had no representative and
that his GP records had not been provided to the tribunal. The tribunal
adjourned,
indicating that the appeal would not be
adjourned
on any future
occasion without compelling evidence.
10. On
15 October 2010, a direction was issued by a clerk to the tribunal that the
appeal should be relisted as a “special”. This meant that the case was
directed to be listed before the identically constituted panel as had adjourned
the appeal on 13 October 2010. The clerk who issued the direction to list the
case before the same panel members indicated that “the panel have engaged in
hearing this appeal”. This is a somewhat surprising direction, since the
hearing
adjourned
without any evidence being recorded. It is also more
difficult to convene a “special” tribunal, as this requires a slot to be found
which is suited to the diaries of three particular individuals, and typically
introduces a greater possibility of delay in concluding appeal proceedings.
11. The
appeal was listed for a hearing on 5 January 2011. The claimant requested a
postponement
on the basis that he had a hospital appointment on the same date
for treatment relating to prostate cancer, enclosing a confirmatory appointment
letter. On 22 December 2010 a clerk of the tribunal
postponed
the hearing.
12. The
appeal was relisted for hearing on 2 March 2011. A further postponement
application was made by the claimant, on the basis that he was having tests
done on his mouth, throat and neck and that he would have to wait some time for
the results, enclosing an appointment letter for 17 February 2011. On 25
February 2011 a LQM refused an application to
postpone
the hearing, as the
appointment did not coincide with the hearing date. He directed that the
claimant should be notified of the refusal by telephone, and indicating that
the hearing should proceed on 2 March 2011, even in his absence.
13. On
26 February 2011 the applicant wrote again to state that he had to attend
hospital to get a zodalex implant injection on 2 March 2011, as part of the
treatment of his prostate cancer, and that he required these every four weeks. He
reiterated his postponement
request. This further application was received on
1 March 2011 and was apparently not dealt with by the Appeals Service.
14. The
tribunal was convened on 2 March 2011. The tribunal adjourned
the appeal on
the basis of the claimant’s hospital appointment and directed that particular
future dates (30 March 2011 and 27 April 2011) on which the four weekly
injection was to be given should be avoided for the reconvened hearing. At the
same time the tribunal directed that a letter should be sent to the claimant
explaining that the tribunal might proceed in his absence if he did not attend
on the next occasion. The letter also advised the claimant of the fact that it
was dealing with an appeal from a decision of 26 July 2009 and that, as it was
concerned with the circumstances around that date, the tribunal would not need
to know about his recent cancer diagnosis. This letter was issued to the
claimant on 8 April 2011, some five weeks after the hearing date.
15. Although he had notified the Appeals Service on 26 February 2011 that his treatment was on specific dates 28 days apart, and had given notice of two of the relevant dates in the next eight weeks, the appeal was not listed again for hearing until 8 June 2011.
16. The
claimant’s application for postponement
dated 30 May 2011 was received by the
Appeals Service on 1 June 2011. The application was on the basis that he was
by now attending hospital on a daily basis for a period of eight weeks for
radiotherapy for advanced prostate cancer. There is nothing on the file to
indicate that the Appeals Service made any response to this
postponement
application
before the date of hearing.
17. The appeal tribunal was convened on 8 June 2011. The claimant did not attend. The relevant part of the record of proceedings reads as follows:
“DOCUMENTS CONSIDERED
Appeal submission
AT16 report 19.05.11 from Dr …. and full medical records.
Hearing clerk: [The claimant] sent
a letter to Appeals Service a few days ago to request a further postponement.
Reason
for the
postponement
request is that [the claimant] has another hospital appointment
today.
Legally Qualified
Member:
Appeal letter was sent to [the claimant] on 08.04.11 by Appeals Service. This
indicated that the tribunal may “still decide to go ahead with the appeal in
your absence if you do not attend next time”. This case has now been postponed
or
adjourned
7 times and [the claimant] has attended on one occasion. There is
no reason to believe that if we
adjourn
again today that [the claimant] will
attend next time. Further, we have quite detailed medical records which of
this stage are likely to give a more accurate description of symptoms and
junction [sic] than the appellant’s oral evidence.
At this stage memory is likely to be unreliable.
So I would refuse the
postponement
request and finally determine the appeal.
(Members agree to proceed in appellant’s absence)…”
18. The tribunal proceeded to hear the case in the claimant’s absence and disallowed the appeal.
19. In
the course of the appeal proceedings before the tribunal, it can be seen that
there were eight separate postponement
requests, four of which were rejected or
not dealt with, leading to three decisions to
postpone,
and three to
adjourn,
the proceedings.
20. On
5 July 2011 the claimant requested a statement of reasons for the tribunal’s
decision. This was issued to him on 13 September 2011. The claimant then
sought leave to appeal to the Social Security Commissioner from the LQM. His
main ground was that it was not fair to proceed to hear the appeal in his
absence on a date when he had a hospital appointment for treatment for his
cancer. On 14 October 2011 the LQM granted leave to appeal. The point of law
on which he grants leave is whether the tribunal was correct in law to refuse a
further postponement
request.
Submissions
21. The claimant candidly admits in his grounds of appeal that he does not know what points of law are. He addresses the health problems he has experienced and expresses concern that his cancer has not been referred to by the tribunal. However, his main complaint is that the tribunal “deliberately” held a hearing on a date which he could not attend, questioning the justice and fairness of the tribunal procedure.
22. On 4 January 2012, the Department was invited to make observations on the grounds of appeal. Mr Kirk responded for the Department on 20 January 2012. Mr Kirk submitted as follows:
(i) the
postponement
application of 1 June 2011 was required to have been considered
prior to the hearing and its outcome notified to the claimant as a matter of
law – against this background, the tribunal erred in law by proceeding to
determine the appeal;
(ii) the tribunal was correct in not considering any deterioration of the claimant’s condition after the date of the appealed decision of 26 July 2009;
(iii) the tribunal erred in law by failing to address concerns expressed by the claimant about the examining medical practitioner (EMP) report contained in his 7-page letter of appeal;
(iv) the tribunal had erred in law by failing to consider a letter from Dr ……. concerning the claimant’s mental health;
(v) although the claimant did not see his medical records prior to the tribunal hearing, as he did not attend, this was not an error of law.
23. The claimant was given an opportunity to respond to Mr Kirk’s observations, but he did not reply.
Relevant legislation
24. The
procedures which regulate the postponement,
decisions to proceed with an appeal
in the absence of an appellant and
adjournment
appear at regulations 49 and 51
of the Social Security and Child Support (Decisions and Appeals) Regulations
(NI) 1999 (“the Decisions and Appeals Regulations”). These regulations
provide, so far as is relevant, as follows:
“Procedure at oral hearings
49.—(1) Subject to the following provisions of this Part, the procedure for an oral hearing shall be such as the chairman or, in the case of an appeal tribunal which has only one member, such as that member, shall determine.
…
(4) If a party to the proceedings to whom notice has been given under paragraph (2) fails to appear at the hearing, the chairman or, in the case of an appeal tribunal which has only one member, that member, may, having regard to all the circumstances including any explanation offered for the absence, proceed with the hearing notwithstanding his absence, or give such directions with a view to the determination of the appeal as he may think proper.
…
(7) At an oral hearing—
(a) any party to the proceedings shall be entitled to be present and be heard; and
(b) …
…
51.—(1) Where a person
to whom notice of an oral hearing is given wishes to request a postponement
of
that hearing, he shall do so in writing to the clerk to the appeal tribunal
stating his reasons for the request, and the clerk to the appeal tribunal may
grant or refuse the request as he thinks fit or may pass the request to a legally
qualified panel member who may grant or refuse the request as he thinks fit.
(2) Where the clerk
to the appeal tribunal or, as the case may be, the legally qualified panel
member refuses a request to postpone
the hearing he shall—
(a) notify in writing the person making the request of the refusal; and
(b)
place before the appeal tribunal at the hearing both the request for the
postponement
and notification of its refusal.
(3) The legally
qualified panel member or the clerk to the appeal tribunal may of his own
motion at any time before the beginning of the hearing postpone
the hearing.
(4) An oral hearing
may be adjourned
by the appeal tribunal at any time on the application of any
party to the proceedings or of its own motion.”
Directions
25. On 20 June 2012, the Chief Commissioner directed, in accordance with Article 16(7) of the Social Security (NI) Order 1998, that this appeal be dealt with by a Tribunal of Commissioners as it involved a question of law of special difficulty.
26. The
parties were directed to prepare summaries of the case which they proposed to
advance at the hearing of the appeal. They were directed to address further
questions relating to the interrelationship between the rules governing
postponement,
adjournment
and proceeding in a claimant’s absence, and as to how
the rules were applied in the present case.
27. A case summary was received from the Department on 30 October 2012. No case summary was received from the claimant. However, he made a written submission on 28 November 2012. To this, he attached a recent letter from his GP and a copy of his hospital treatment appointment card for the months of May and June 2011. This latter document was already on file.
28. Following
the receipt of the Department’s case summary, it became evident that the
Department had resiled from the position set out in Mr Kirk’s earlier
observations to the effect that a lack of compliance with procedural rules
governing postponement
meant that the tribunal decision was wrong in law. In
the meantime, the claimant remained unrepresented and indicated that he would
not be attending the hearing.
29. In
these circumstances, we considered that we would wish to have the benefit of
argument on certain issues arising from the claimant’s submission that the
failure to postpone
or
adjourn
but to proceed in his absence was procedurally
unfair. In the absence of a party who would articulate this argument, we
invited Mr Hatton of Law Centre (NI) to act as amicus curiae in the
proceedings.
The Hearing
30. The claimant did not attend the hearing and he was not represented. The Department was represented at hearing by Mr Gough, who dealt with arguments relating to the general application of the procedure rules, and by Mr Kirk, who dealt with specific matters relating to the evidence in the particular case. We are grateful to Mr Gough and Mr Kirk for their helpful submissions.
31. Mr
Hatton appeared as amicus curiae, having been furnished with a written summary
of the case which omitted all reference to the detail of the claimant’s
confidential personal and medical circumstances, the Department’s case summary
and initial observations and a redacted version of the record of the tribunal
proceedings and previous adjournment
decisions. We are grateful to Mr Hatton
for his careful written and oral submissions in the case, prepared at short
notice and, due to the need to respect the claimant’s privacy, without a full
knowledge of the details of the case.
32. We
requested submissions on the interrelationship between the rules governing
postponement,
adjournment
and proceeding in an appellant’s absence, and as to
how the rules were applied in the present case.
33. Mr
Gough submitted that if a postponement
was requested, the clerk or legal member
should normally consider the application prior to the hearing. If it was
refused, and the claimant failed to appear at a hearing, the LQM alone should
decide whether to proceed in the claimant’s absence. Where the hearing proceeded
in the absence of the claimant, and a
postponement
had been refused, the
postponement
application should be dealt with by the tribunal as a whole as an
adjournment
application. If it decided to proceed, but an issue arose which
made it think that
adjournment
was appropriate, the panel could decide to
adjourn
under regulation 51(4). He submitted that the tribunal had correctly
followed the relevant procedures.
34. Although
the postponement
request in the present case was not dealt with prior to the
hearing, he submitted that there was no legal obligation to make such a
decision. He submitted that the use of the word “may” in regulation 51(1) gave
a clerk or a LQM power to
postpone
a hearing, but that it did not give rise to
any legal requirement to determine the application for
postponement
before a
hearing, as might be implied if the word “shall” was used.
35. By
contrast Mr Hatton submitted that there was a mandatory requirement to decide a
postponement
application, and a general requirement to make decisions
judicially and in a timeous manner. He relied upon decisions by Deputy
Commissioner Mark in CDLA/4462/2000 and Commissioner Bano in CDLA/4389/2004.
36. Mr
Hatton had made detailed written submissions relating to the procedural rules
and developed these at hearing. He submitted that the tribunal had not applied
the relevant rules correctly. He referred us to the decision of Commissioner
Williams in CIB/2533/2008 and the decision of Commissioner Brown in
C1/05-06(IB). He submitted that cases would turn on their own facts as to
whether the failure to determine a postponement
application or to issue any
notice of refusal would make a material difference to the decision.
37. The Department made further submissions on the fairness of the hearing and in particular accepted that the claimant’s concerns about the EMP report were not addressed by the tribunal and that a letter from his GP was not addressed by the tribunal. On that basis only, the Department accepted that the tribunal was in error of law.
Discussion
38. The
Decisions and Appeals Regulations provide for three mechanisms by which appeals
listed for hearing may be deferred. Firstly, once a notice of hearing is
issued, a party may apply for postponement.
This will lead to a decision on
the application by a clerk or LQM, either of whom may also
postpone
a hearing
on his or her own motion. Secondly, when a hearing is convened but a party who
has been notified does not attend at the appointed time and place, the question
of whether the tribunal should proceed in the absence of that party arises. The
decision on whether to proceed in absence is a matter for the LQM alone,
considering any explanation offered for the absence. Thirdly, when a hearing
proceeds, any party may make application for an
adjournment
at any time. The
decision on an
adjournment
application must be decided by the tribunal as a
whole, and the tribunal may also
adjourn
a hearing of its own motion.
39. In
the present case, the claimant made an application for postponement
which was
received on 1 June 2010 – a full week before the date of hearing. No decision
was made on the
postponement
application. We first consider the consequence of
that inaction.
40. Mr
Gough has suggested that the expression “the clerk to the appeal tribunal may
grant or refuse the request as he thinks fit or pass the request to a legally
qualified panel member who may grant or refuse the request as he thinks fit”
means that there was not an obligation on the clerk or the LQM arising from
regulation 51(1) to determine the application for postponement.
He submits
that the word “may” gives discretion and does not impose any obligation, such
as would have been explicit from use of the word “shall”.
41. We cannot accept that that submission is correct. We observe that by section 38 of the Interpretation Act (Northern Ireland) 1954, "In an enactment passed or made after the commencement of this Act, the expression 'shall' shall be construed as imperative and the expression 'may' as permissive and empowering." However, courts have long held that permissive language can be read as not importing discretion but rather imposing including a duty to act, depending on the context. In Julius v Bishop of Oxford (1880) 5 App Cas 214, Earl Cairns LC said, at page 225:
"My Lords, the cases to which I have referred appear to decide nothing more than this: that where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the Legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised, and the court will require to be exercised."
42. We
further observe that by regulation 51(2) where a clerk or a LQM refuses to
postpone,
the clerk shall notify the party of the refusal and place the
request for the
postponement
and the notification of its refusal before the
tribunal. It appears to us incongruous that a decision to refuse an
application would give rise to an imperative procedural requirement, if the
same application could simply be ignored by a clerk or LQM at his or her
discretion.
43. From
the particular context, we consider that in a case where an appellant has
requested a postponement
in writing, stating his reasons, the clerk is afforded
discretion by the legislation to grant, to refuse or to pass the request for
postponement
to a LQM. However, the clerk must take one of those three steps. Equally,
the LQM may grant or refuse the application, but cannot simply ignore it. We
are supported in this view by the decision of Great Britain Deputy Commissioner
Mark in CDLA/4462/2000 and Great Britain Commissioner Bano in CDLA/4389/2004.
44. Nevertheless,
we recognise that circumstances will arise in practice which might lead to
difficulties in complying with the procedural rules. Postponement
applications
may be made on the same day as the hearing or at close of business on the day
before, making it difficult for a clerk or LQM to make a decision. Applications
may be overlooked inadvertently. This may lead to a situation, as here, where
an outstanding
postponement
application comes before a LQM sitting as part of a
tribunal.
45. Postponement
by its nature is aimed at pre-empting the commencement of a hearing where a
party makes a timely application. Once a hearing has begun - and this may
simply mean that the tribunal panel has convened at the date and place of
hearing and is ready to commence the hearing list - it seems to us that dealing
with the request as a
postponement
is no longer appropriate. Under regulation
51(3) the power of the clerk or LQM to
postpone
of his or her own motion can only
be exercised before the beginning of the hearing. It would appear entirely
consistent that a similar constraint should be implied where it is a party to
the proceedings who has made a
postponement
application. Once a hearing
commences, the question of
postponement
becomes entirely academic.
46. However,
where a postponement
application has been made prior to a hearing but has not
been determined, we consider that the fact that there has been an application
for
postponement
cannot be ignored. In CDLA/3680/97, a case under the Social
Security (Adjudication) Regulations 1995, Commissioner Rowland, as he then was,
held that where there has been an unsuccessful application for a
postponement,
the question of whether the case should be
adjourned
must be considered afresh.
In broad terms, in relation to the current provisions in the Decisions and
Appeals Regulations, we agree. We consider that an unsuccessful or
undetermined
postponement
application must be reconsidered under the other
relevant provisions.
47. Irrespective
of whether a postponement
application has been made previously, where an
appellant does not attend an appeal hearing, the LQM must make a decision on
whether or not to proceed in the appellant’s absence. By regulation 49(4) this
will require the LQM to have regard to all the circumstances, including any
explanation offered for the absence. Where there has been a
postponement
application, it would appear to us that the written
postponement
application
should be considered by the LQM as it is a relevant aspect of the circumstances
which the LQM is required to consider. If the LQM decides not to proceed with
the hearing, he or she may give directions with a view to the determination of
the hearing.
48. If
the appellant does attend the hearing, or if the LQM decides to proceed with
the hearing notwithstanding the appellant’s absence, any refused application
for postponement
and the refusal determination must to be placed before the
tribunal under regulation 51(2). Equally, we consider that where an
outstanding
postponement
application has not been determined, the context
requires the outstanding application to be placed before the tribunal for
consideration of the question of
adjournment.
The application of the rules in the present case
49. In
the present case, the claimant made a written request for postponement,
stating
reasons. This was received by the Appeals Service on 1 June 2011, a full week
before the prospective date of hearing. The claimant’s reason for seeking
postponement
was that he was attending hospital on a daily basis for eight
weeks for radiotherapy treatment for advanced prostate cancer. The clerk did
not grant or refuse the
postponement
application. Nor did the clerk pass it to
a LQM for determination prior to the date of hearing. A tribunal convened to hear
the appeal on 8 June 2011.
50. By
this stage it was too late to consider a postponement.
The claimant did not
attend the hearing. This meant that two procedures became relevant. Firstly,
there was a need for the LQM to decide whether to proceed in the claimant’s
absence. Secondly, if the LQM so determined, there was a need for the tribunal
as a body to consider whether
adjournment
was necessary. Inherent in either of
these courses was a requirement for the original
postponement
application to be
considered by the LQM and tribunal.
51. We
consider that the record of proceedings reveals a conflation of the issues of
postponement,
proceeding in absence and
adjournment
and suggests confusion as
to where the responsibility for determining them should lie. Whilst there were
errors in procedure in that regard, what we consider most significant is that
no reference is made in the record of proceedings to the claimant’s written
application for
postponement.
It is clear that it was not placed before the
tribunal. The clerk to the tribunal is recorded as stating that “[the claimant]
sent a letter to Appeals Service a few days ago to request a further
postponement.”
The reason for the application was paraphrased as “[the
claimant] has another hospital appointment today”.
52. It
seems to us that there is a qualitative difference between what was stated to
the tribunal by the clerk and the actual basis of application. “Hospital
appointment” conveys a number of different scenarios and in particular can
cover a situation where an appointment is of a relatively trivial nature and
can be rescheduled by a patient. We are fully satisfied that this was not the
position in this case. Therefore, the manner in which the postponement
application was paraphrased had the capacity to mislead.
53. The
use of the word “another” links the application to previous occasions on which
the case was adjourned.
However, the simple fact of the hearing being
postponed
or
adjourned
on a number of prior occasions is not in itself a factor
which can legitimately affect a decision on an
adjournment
application. A
decision-maker can legitimately assume that each past
adjournment
or
postponement
decision was properly made. On the other hand, the reasons for
those past
postponements
or
adjournments
are a factor which can and should be
taken into account when considering the reason for the present application. Where
the reason for the current application is improperly understood, any resulting
decision is likely to be tainted.
54. The
tribunal found that “there is no reason to believe that if we adjourn
again
today that (the claimant) will attend the next time”. We consider that,
without sight of the written
postponement
application, and the knowledge of the
circumstances which this conveyed, the tribunal was insufficiently informed as
to the reasons for the present application to make this judgment on a sound
factual basis.
55. In
any case where there has been a prior postponement
application, the written
grounds of that application should be placed before the LQM and the tribunal. In
some cases where that does not happen, it may make no difference to the
fairness of the proceedings. In the present case, it had the potential to do
so.
56. In
R(Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982, Brooke LJ lists a number of examples of errors of law commonly occurring. Among
those matters listed by Brooke LJ include “permitting a procedural irregularity
capable of making a material difference to the outcome or the fairness of the
proceedings”. In the circumstances of the particular case, we accept that the
tribunal, by failing to consider the written postponement
application, has
permitted a procedural irregularity capable of making a difference to the
fairness of the proceedings. For that reason we hold the decision of the
appeal tribunal to be in error of law.
57. We set aside the decision of the tribunal under Article 15(8)(b) of the Social Security (NI) Order 1998 and refer it to a newly constituted tribunal for determination.
(signed): K Mullan
Chief Commissioner
O
Stockman
Commissioner
D J May
Deputy Commissioner (NI)
14 February 2013