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Social Security Case Law - Autumn 2024

Summaries of recent cases on social security law and practice.

GMcA v Department for Communities (PIP) [2024] NICom23

You can read the full judgment ‘here‘.

Headnote

Unrepresented claimants should be aware of alternative forms of oral hearings.

Background

The claimant’s mother (and her appointee) appealed the decision of the Tribunal that her daughter, the claimant, was no longer entitled to receive an award of Personal Independence Payment at the standard rate for the daily living component. On the day of the hearing, the appointee contacted the tribunal to notify them that her daughter would not be attending the hearing due to her anxiety and that she was unwilling to attend any future hearing as well. The tribunal clerk was instructed by the Tribunal chair to advise the claimant to attend. However, the appointee asked the tribunal to proceed without their presence. The appeal was dismissed based on the papers. The appointee appealed the tribunal’s decision to the Commissioner.

Legal Issue

The Commissioner considered whether the tribunal had erred in law in their failure to make the claimant aware of the alternative forms of oral hearings available to them following its notification that an unrepresented claimant felt unable to attend their face to face hearing due to anxiety.

Relevant Legislation

  • The Personal Independence Payment Regulations (Northern Ireland) 2016

Relevant Case Law

  • SA v Department for Communities (DLA) [2020] NICom 38
  • DJS v Department for Communities (PIP) [2021] NICom 22
  • JF v Secretary of State for Work and Pensions [2012] UKUT 335 (AAC)
  • SK v Secretary of State for Work and Pensions (ESA) [2014] UKUT 141 (AAC)
  • JR v Department for Communities [2023] NI Com 1
  • Secretary of State for Work and Pensions v MM [2019] UKSC 34
  • TH v Department for Communities (PIP) [2022] NICom 13
  • TR-v-SSWP (PIP) [2015] UKUT 0626 (AAC)

Decision

The Commissioner allowed the appeal and remitted the case to a fresh tribunal to be heard again. The Commissioner held that the tribunal ‘unwittingly’ compromised the claimant’s right to a fair hearing for a number of reasons.

The appointee’s request that the tribunal go ahead without her, or her daughter’s presence ‘must be seen as an election made while uninformed of the ambit of possibilities’ to conduct an oral hearing via alternative methods, for example over the phone or via a remote hearing online. It was also noted that the appointee would not have been expected to know about these other hearing methods as she was an unrepresented litigant in person. The Commissioner also stated that the tribunal did not raise the possibility that the appointee could attend the hearing alone and give evidence on behalf of her daughter about her struggles in completing certain activities.

As the claimant was unaware of the alternative possibilities for the hearing and the tribunal did not make them (her appointee in this case) aware of the different opportunities – they have erred in their duty to provide a fair hearing.