A risk of unfairness arises when a subsequent tribunal doesn’t comply with an earlier tribunal’s direction that an identical panel should conclude an appeal hearing.
RH v. Department for Communities (PIP)  NI Com 8
The claimant was awarded Personal Independence Payment (PIP) in 2017 at the standard daily living and enhanced mobility rates. In January 2018, she was asked to complete an AR1 form to report any changes to her conditions or disability.
In May 2019, the Department decided she was not entitled to PIP. The claimant requested a mandatory reconsideration, but the Department did not change its decision. The claimant appealed.
The claimant’s appeal was heard in March 2020. During the course of the proceedings, the claimant became upset and was unable to give further evidence. The tribunal panel agreed to adjourn the hearing and directed that the hearing should reconvene before the same panel at a later date.
The claimant’s appeal was finally heard on the papers in June 2021. However, the panel which heard the claimant’s appeal was not the same panel which partially heard her appeal in March 2020. Only the Legally Qualified Member (LQM) was the same.
During the course of the hearing, the panel disregarded evidence from the hearing in March 2020, indicating that it was illegible.
The claimant’s appeal was dismissed and she appealed to the Social Security Commissioner.
On appeal to the Social Security Commissioner, the claimant was represented by Law Centre NI.
The claimant’s appeal to the Social Security Commissioner focused on two aspects of the tribunal’s decision.
First, the claimant argued that the tribunal was wrong to disregard oral evidence recorded during the earlier part heard hearing. Secondly, the claimant argued that the tribunal erred by hearing the appeal with a different panel to the one which heard the part heard hearing.
Tribunal disregarded previously given evidence
On the first point, Law Centre NI argued that the tribunal should not have decided the appeal without obtaining a legible record of oral evidence given at the previous hearing.
Law Centre NI referred to Regulation 55(1) of the Social Security and Child Support (Decisions and Appeals) Regulations (NI) 1999 which provides that the LQM is required to make a record of the proceedings ‘sufficient to indicate evidence taken’.
Law Centre NI cited R(DLA) 3/08, a decision of a Tribunal of Commissioners in Great Britain, which states:
‘… whatever the medium might be, the record must be intelligible or capable of being made intelligible to those to whom it is issue. The obvious remedy where a record of proceedings is illegible is to ask the clerk to obtain and supply a legible version.’
Law Centre NI also referred to MK v. SSWP  UKUT 293, which provides that while failure to comply with regulation 55(1) does not necessarily constitute an error of law, it may do if the claimant can show that it materially affected the tribunal’s decision.
Failure to convene the same tribunal panel
On the second point, Law Centre NI argued that the failure to convene the same panel, save for the LQM, to conclude the claimant’s appeal hearing was problematic.
Law Centre NI referred to R(U) 3/88 – a decision of a Tribunal of Commissioners in Great Britain – which provides at paragraph 7:
‘As the tribunal is differently constituted from the earlier one, which part-heard the case, it would be prudent for none of the members of the earlier tribunal to be included as part of the second tribunal. The members are judges of fact at the hearing and it seems to us undesirable for a member to have a residual knowledge of evidence given at the earlier hearing which is not shared by the other members – knowledge of what was said as distinct from what was written down.’
Law Centre NI also referred to a post Human Rights Act 1998 case – CDLA/2449/2004 – which emphasises the relevance of Article 6 of the European Convention on Human Rights and the right to a fair hearing. In that case, the Chief Social Security Commissioner in Great Britain expressed concern about the risk of residual knowledge in one of the tribunal members, stating:
‘there is always a risk of subconscious impressions being carried over from one hearing to another.’
The Chief Commissioner also expressed the view that if all members of a tribunal do not have access to the same evidence, it is reasonable to consider that there may not be a fair hearing.
In the claimant’s case, Law Centre NI argued that as the subsequent panel was not identical to the first and given that the claimant’s previous evidence was disregarded, the claimant should have been given the opportunity to give oral evidence again.
The Department supported the appeal on the grounds of procedural unfairness. It referred to the Great Britain Upper Tribunal decision of PD v. SSWP  UKUT 172 which cites commentary in Vol III of Social Security Legislation 20/21 to the effect that:
‘Where a case is adjourned after oral evidence has been given, it is necessary for a panel to have the same composition or be entirely differently composed, but that is not because the panel will have discussed the case among themselves but because if, say, the judge then sits with a different member on another occasion, he or she may be influenced by having heard evidence that the other member has not heard…All the members of the tribunal should determine the case on the basis of the same evidence.’
The Commissioner acknowledged that the first tribunal expressly directed that the hearing should be concluded by an identically constituted panel. He noted that the LQM, although recognising that the direction had been made, stated:
‘However, intervening circumstances have prevented that and the case is therefore being heard afresh by a differently constituted tribunal.’
The Commissioner commented that the ‘intervening circumstances’ are not explained and it would have been more helpful if their nature had been addressed on the record of proceedings.
The Commissioner stated that any direction of a tribunal should either be complied with, amended or set aside. However, that was not the case here and it implied that the direction had been simply ignored.
The Commissioner referred to the GB case law cited by Law Centre NI and the Department. He noted that the cases exclude members of the judiciary from participating in future, differently constituted, tribunals if they have knowledge of evidence given at an earlier hearing. The Commissioner stated that those principles should be followed in Northern Ireland.
The Commissioner concluded:
‘In the circumstances of the present case, it appears to me that the risk of subconscious impressions being carried over from the March 2020 hearing to the October 2021 [sic] hearing is sufficient to create a reasonable apprehension that there may not have been a fair hearing.’
The Commissioner allowed the appeal and set aside the tribunal’s decision. He referred the case to a new tribunal, with the direction that a typed, legible record of the tribunal of March 2020 is made available.
Finally, the Commissioner directed that the case should be listed for oral hearing, with the claimant and her representative having an opportunity to attend.
For a full copy of the judgment, click here.