How should a tribunal exercise its discretion to proceed in a claimant’s absence?
DJS v. Department for Communities (PIP)  NI Com 22 (C2/21-22)
The claimant claimed PIP on the basis of needs arising from type 2 diabetes, angina, depression, shortness of breath and neck, shoulder and back problems. His claim was refused and he appealed. His appeal hearing was listed on a number of occasions. Each time, the claimant requested a postponement or adjournment because he had not secured representation.
The claimant’s case was finally listed for hearing on 5 March 2020. Again, the claimant requested a postponement because he could not be represented at the hearing. However, on this occasion, the Legally Qualified Member (LQM) refused his application.
The hearing proceeded in the claimant’s absence, with the tribunal disallowing the appeal. The claimant appealed to the Social Security Commissioner. One of the claimant’s grounds of appeal was that the tribunal erred in law by proceeding with the claimant’s appeal in his absence.
The appeal addressed the jurisdiction of the Commissioner to oversee the exercise of judicial discretion by a tribunal, including the exercise of discretion to proceed in a claimant’s absence, under Regulation 49(4) of the Social Security and Child Support (Decisions and Appeals) Regulations (NI) 1999.
Regulation 49(4) states:
‘49(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.’
In the claimant’s case, the tribunal noted that this was the fourth time his appeal had been listed for hearing. The tribunal further observed that the decision subject to appeal was almost two years old. The tribunal noted that the claimant had still not arranged representation despite adjournments and postponements to allow him to do so. Moreover, the claimant had not provided medical evidence ‘despite an adjournment for this’. In the circumstances, the tribunal decided to proceed in the claimant’s absence.
The Commissioner acknowledged the tribunal’s power to proceed in the absence of the claimant under regulation 49(4). However, the Commissioner stated:
‘…[B]efore exercising that power, the LQM was under an obligation to have regard to all the circumstances, including any explanation offered for the absence. The decision to proceed with the hearing notwithstanding the absence of the [claimant] was an exercise of judicial discretion. I consider that an LQM is granted a significant margin of appreciation by regulation 49(4). However, there must also be some constraints on the exercise of discretion by an LQM or tribunal to avoid error or abuse.’
The Commissioner turned to consider his jurisdiction to review the tribunal’s exercise of discretion under regulation 49(4). He decided that his jurisdiction involves application of the same principles that apply to an appeal from exercise of judicial discretion in the civil courts.
He identified two cases which provide guidance on the principles that apply to appeals of the exercise of judicial discretion: Jordan, Re Judicial Review  NIQB 11 and the Court of Appeal case of R v. McKeown  NICA 12. In the latter case, he cited remarks of Carswell LCJ, who in turn cited Lowry LCJ in R v. O’Halloran  NI 45, at paragraph 47:
‘ “An appellate court’s approach to the exercise of a judicial discretion must always be to look for indications that the judge misconceived the facts, misstated the law or took into or left out of account something which he ought to have disregarded or regarded, as the case may be.”
We think that these principles should be read subject to the qualification that even though none of the criteria may be strictly satisfied, if the appellate court comes to the conclusion that the judge’s decision will result in injustice being done, it has both the power and the duty to remedy it.’
The Commissioner stated that the principle of avoiding injustice applies to all courts and tribunals and should be applied in social security tribunals. The Commissioner decided that the following principles are relevant when reviewing the exercise of a tribunal or LQM’s discretion:
‘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 went on to apply those principles to the tribunal’s exercise of discretion in the claimant’s case. The Commissioner identified the reasons given by the tribunal for exercising its discretion and dealt with each point in turn. A summary of his comments is as follows:
‘The appeal had been listed for hearing four times in total’
The Commissioner addressed the tribunal’s reasoning on the number of previous listings of the appeal by referring to the decision of a Tribunal of Commissioners in SG v. DSD  NI Com12. In SG, a Tribunal of Commissioners stated at paragraph 53:
‘…, 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.’
The Commissioner acknowledged that in the claimant’s case the tribunal had considered not just the number of previous postponements, but also the reasons for them.
‘The [claimant] had not yet obtained representation despite being granted previous postponement or adjournment for that purpose’
The Commissioner stated that it was valid for the tribunal to take into account that the claimant had been seeking representation for ‘rather a long time’. However, the tribunal must also recognise that obtaining representation was not a matter entirely within the claimant’s control.
In the Commissioner’s opinion, the tribunal failed to have regard to the availability of representation and the difficulty of obtaining a representative in the area where the claimant lived. Moreover, the tribunal did not address the particular claimant’s need for representation or whether his circumstances suggested that he would reasonably require it.
‘The decision under appeal was made two years previously’
The Commissioner noted that the tribunal seemed particularly exercised that the decision under appeal was made two years ago. The tribunal had gone so far as to write ‘ALMOST TWO YEARS AGO’ in upper case lettering.
The Commissioner did not agree, however, that the duration of the proceedings is a relevant factor in itself. As the claimant is most disadvantaged by delay, if he is prepared to wait for two years, the tribunal should have no objection.
The Commissioner acknowledged that the impact of delay on the value of oral evidence is a relevant consideration for the tribunal. However, he noted that the tribunal’s decision to proceed in the claimant’s absence renders this consideration academic.
At paragraph 46, the Commissioner acknowledged that the power of a tribunal to proceed in the absence of a party under regulation 49(4) must have purpose and effect. However, he qualified this, stating:
‘…[W]here there have been valid adjournments and postponements in the past, which themselves add to the duration of a case from appeal to concluding hearing, tribunals should be very cautious in finding a delay per se – in the absence of other relevant considerations – to be a decisive factor.’
‘The [claimant] had “failed to provide any additional medical evidence despite an adjournment for this”’
The Commissioner noted that the tribunal misunderstood the reason for the adjournment on this occasion.
The adjournment was given because the claimant was unable to attend a hearing. It was not granted to allow him to provide medical evidence. The LQM had simply taken the opportunity to direct the claimant to obtain his GP notes and records and bring them to the next hearing.
In most cases, once an LQM has given a direction in a case, the case returns to the same panel the next time it is listed for hearing. However, on this occasion, the case was listed before, and heard by, a different panel. The Commissioner commented that given the previous LQM’s direction for medical evidence, it was difficult to see how the LQM, hearing the claimant’s appeal, was content to proceed without the direction being complied with.
‘The [claimant] had not shown any reasonable excuse for not pursuing his appeal and for non-attendance on the day’
The Commissioner disagreed with the tribunal’s reasoning on whether the claimant had a reasonable excuse for non-attendance. He decided that the tribunal’s characterisation of the claimant’s desire for representation as ‘not a reasonable excuse’, incorrectly places the onus on the claimant to justify his non-attendance.
The question for the tribunal is, having regard to all the circumstances, including any explanation offered for the absence, whether it should exercise its discretion to proceed notwithstanding the claimant’s absence. The claimant’s desire for representation was a key issue through all previous postponements and adjournments. However, the tribunal failed to deal with this issue at all.
The Commissioner concluded at paragraph 54:
‘It appears to me that the tribunal has incorrectly placed weight on the number of previous postponements and the resulting delay in the appeal. It also appears to me that the tribunal has misunderstood the circumstances of the previous adjournment for medical evidence. Most tellingly, it has not dealt with the question whether the appeal should not proceed in order for the [claimant] to make a final effect to secure representation.’
The Commissioner decided that the tribunal erred in law. He allowed the claimant’s appeal and referred the matter to a new tribunal. He directed the claimant to make urgent efforts to secure representation and to attend the new appeal hearing.
For a full copy of the Judgment: click here