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Where an appointee acts on behalf of a claimant, the Department must provide evidence of the appointment in its submission to the tribunal.

13th September, 2021

DO’S v. Department for Communities (PIP) [2021] NI Com 23 (C3/21-22)

Background

The claimant had been awarded DLA as a child. He claimed PIP, aged 18, on the basis of needs arising from ADHD and low pitch hearing deficit. His claim was refused.

Following an unsuccessful request for mandatory reconsideration, his mother appealed on his behalf. Two hearings of the appeal were postponed because the claimant was sitting exams. The case was listed on 16 May 2019 and the tribunal decided the appeal in the claimant’s absence. This decision was set aside, however, because the claimant’s mother had been ill and unable to attend.

The appeal was re-listed on 2 March 2020. The claimant’s postponement request was refused. The tribunal proceeded in the absence of the claimant and his mother and disallowed the appeal. An application for leave to appeal was made to the Social Security Commissioner.

Legal issue

The first issue for the Commissioner to address was the role of the claimant’s mother in the proceedings.

The Department provided evidence of a valid appointment of the claimant’s mother as his appointee for the purpose of DLA in 2014. The appointment was based on the claimant being ‘unable for the time being to act’ under regulation 33 of the Social Security (Claims and Payments) Regulations (NI) 1987:

‘33.—(1) Where—
(a) a person is, or is alleged to be, entitled to benefit, whether or not a claim for benefit has been made by him or on his behalf;
(b) that person is unable for the time being to act; and
(c) no controller has been appointed by the High Court with power to claim or, as the case may be, receive benefit on his behalf,
the Department may, upon written application made to it by a person who, if an individual, is over the age of 18, appoint that person to exercise, on behalf of the person who is unable to act, any right to which that latter person may be entitled and to receive and deal on his behalf with any sums payable to him.’

Regulation 28 of the Personal Independence Payment (Transitional Provisions) Regulations (Northern Ireland) 2016 has the effect of continuing an appointment made for DLA purposes as an appointment for PIP purposes. Regulation 28 states:

‘28 – (1) This regulation applies where, immediately before any claim for personal independence payment is made by or on behalf of a person entitled to disability living allowance, there is a person (‘the appointed person’)– 
(a) appointed by the Department in accordance with regulation 33(1) of the 1987 Regulations (persons unable to act); or
(b) 
treated, by virtue of paragraph (1A) of that regulation(a), as being a person appointed by the Department in accordance with paragraph (1) of that regulation, to exercise rights on behalf of the person entitled to disability living allowance and receive and deal with any sums payable to that person.

(2) Where this regulation applies the appointed person shall be regarded as acting on behalf of the person entitled to disability living allowance for the purposes of the making and pursuit of a claim for personal independence payment under these Regulations and, where applicable, the Claims and Payments Regulations.’

Decision

The Commissioner decided that on the basis of regulation 28, the claimant’s mother’s appointment in 2014 continues for his PIP claim. Once an appointment is made, the Department must exhibit evidence of the appointment in its submission to an appeal tribunal.

As his appointee, the claimant’s mother has a right of appeal under regulation 25(a)(iv) Social Security and Child Support (Decisions and Appeals) Regulations (NI) 1999, which states:

‘For the purposes of Article 13(2), but subject to regulation 3ZA, the following other persons have a right of appeal to an appeal tribunal - 

(a)any person appointed by the Department – 

(i) …

    (iv) under regulation 33(1) of those Regulations to act on behalf of another.’


    The Commissioner decided that the claimant’s mother, as his appointee, is the appealing party. He granted leave to appeal on the basis that the Departmental submission to the tribunal failed to mention the appointment of the claimant’s mother.

    Having granted leave to appeal, the Commissioner goes on to consider whether the tribunal correctly exercised its discretion to proceed with the hearing in the claimant’s and his mother’s absence.

    The Commissioner notes that the appointee provided evidence that it was her own mental health condition that prevented her attending the hearing and pursuing the appeal on the claimant’s behalf. The consequence of the tribunal not knowing about the appointment of the claimant’s mother was that it considered proceeding in the claimant/appointee’s absence entirely in terms of the claimant’s health condition rather than the appointee’s.

    Although the tribunal had comprehensively outlined its reasoning for proceeding in the claimant’s absence, this was an error. The tribunal did not address the absence of his mother, despite it being her appeal, and therefore erred in law. The Department led the tribunal into error by failing to disclose that the claimant’s mother was his appointee.

    The Commissioner allowed the claimant’s appeal and referred the matter to a new tribunal.

    For a full copy of the Judgment: click here