JF v. Department for Communities (PIP)  NI Com 33
The claimant was awarded DLA as a child from 2009. On turning 16, he claimed PIP on the basis of needs arising from Asperger’s syndrome, ADHD, enuresis and self-esteem issues. His claim was refused and he appealed. The claimant applied for a postponement of his appeal hearing on the basis that his representative was unavailable on the hearing date. On the day of hearing, the tribunal considered the claimant’s request for postponement as an adjournment application and refused it. The tribunal proceeded in the claimant’s absence and disallowed his appeal. The claimant appealed to the Social Security Commissioner.
The claimant and the Department agreed that the tribunal erred in law by proceeding in the claimant’s absence. The Department observed that the tribunal provided no reasons for refusing the claimant’s request for an adjournment.
The Department referred to the case of C37/08-09(DLA) in which Chief Commissioner Mullan stated at paragraph 32 that a tribunal must give reasons for its refusal of a request for adjournment.
The Department also referred to the decision of the Court of Appeal in Galo v. Bombardier Aerospace  NICA 25, which provides that it is:
‘[A] fundamental right of a person with a disability to enjoy a fair hearing and to have been able to participate effectively in the hearing’.
Agreeing that the tribunal erred in law, the Commissioner referred to his decision in DJS v. Department for Communities  NI Com 22. DJS which sets out the factors a tribunal should consider in deciding to proceed in a claimant’s absence. It refers to regulation 49(4) of the Social Security and Child Support (Decisions and Appeals) Regulations (NI) 1999 which provide for the non-attendance of a party to the appeal.
Regulation 49(4) states:
‘(4) If a party to whom notice has been given under paragraph (2) fails to appear at the hearing, the chairman or, in the case of a 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’.
The Commissioner observed in DJS v. Department for Communities that the tribunal has a wide margin of appreciation when exercising its discretion under regulation 49(4). However, he also stated that there are a number of principles that apply to the exercise of its discretion.
At paragraph 37, he stated:
‘37 In the exercise of supervisory jurisdiction over the decision of a tribunal that has involved the exercise of judicial discretion, it seems to me that the Commissioner must decide whether the LQM or tribunal:
(i) made a mistake in law or disregarded principle;
(ii) misunderstood the facts;
(iii) took into account irrelevant matters or disregarded relevant matters;
(iv) reached a decision that was outside the bounds of reasonable decision making;
(v) gave rise to injustice’.
The Commissioner observed that in order to exercise his supervisory jurisdiction of tribunal decisions, he must be able to understand why the tribunal reached its decision. He could not do so in the claimant’s case because the tribunal failed to give reasons for exercising its discretion to refuse an adjournment. In failing to do so, the tribunal erred in law.
The Commissioner further noted that the tribunal had not addressed the right, articulated by the Court of Appeal in Galo, that the claimant, as a person with a disability, has to enjoy a fair hearing and be able to participate effectively in the hearing. The tribunal further erred in law by failing to consider any obligation to enable the claimant’s participation in the hearing.
The Commissioner set aside the decision of the appeal tribunal and referred the case to a new tribunal.
For a copy of the judgment: click here.