Social Security Case Law - Spring 2024

Headnote

A Tribunal considered a claim for PIP by an applicant on the basis of needs arising from autism spectrum disorder and anxiety.  In terms of giving evidence, the Tribunal ought to have engaged with the Applicant and her representative, applying the Galo principles in order to ensure that ‘effective participation’ was afforded to the applicant.  Failure to do this is capable of making a material difference to the fairness of proceedings.

Background

The Applicant made a renewal claim for PIP on the basis of needs arising from autism spectrum disorder and anxiety, which the Department decided did not satisfy the conditions for PIP.  The Applicant appealed and attended the appeal via video link along with her mother who acted as her representative.  It was the Applicant’s case that the Tribunal proceedings were procedurally unfair as her representative was not permitted to effectively participate during the Tribunal.

Legal Issue

Whether the Applicant’s representative was given insufficient opportunity to participate in the Tribunal hearing, and if so, did this result in unfair proceedings.

Relevant Legislation

Regulation 49 of the Social Security and Child Support (Decisions and Appeals) Regulations (NI) 1999 (the Decisions and Appeals Regulations):

(7) At an oral hearing—

 (a) any party to the proceedings shall be entitled to be present and be heard; and

 (b) the following persons may be present by means of a live television link—

 (i) any party to the proceedings or his representative or both, or

 (ii) where an appeal tribunal consists of more than one member, a tribunal member other than the chairman, provided that the chairman or, in the case of an appeal tribunal which has only one member, that member, gives permission.

(8) A person who has the right to be heard at a hearing may be accompanied and may be represented by another person whether having professional qualifications or not and, for the purposes of the proceedings at the hearing, any such representative shall have all the rights and powers to which the person whom he represents is entitled.

Decision

The Commissioner set aside the decision of the Tribunal and allowed the appeal.  The Commissioner noted that (1) the Applicant’s representative had been asked not to interrupt when she had sought to answer a question (2) that although the representative had been given time at the end of the proceedings to make any further submissions on behalf of the Applicant, this is not same as offering the representative an opportunity to qualify or add to the answers given by the Applicant where these may have been incomplete, and issues were still being addressed.

The Commissioner noted (paragraph 41) that:

Regulation 49(7) and (8) of the Decisions and Appeals Regulations indicates that representatives are in fact entitled to give evidence.  By regulation 49(7)(a) any party to the proceedings shall be entitled to be heard.  This is not defined, but clearly includes the appellant’s right to give evidence and make submissions.  By regulation 49(8) a person who has the right to be heard at a hearing may be accompanied and may be represented by another person.  By the same paragraph, any such representative shall have all the rights and powers to which the person whom he represents is entitled.  In other words, the representative is entitled to be heard to the same extent as the appellant, and that confers the right to give evidence.

The evidence of a representative may not normally have much value, as the representative will not have first hand knowledge of the appellant’s daily life and may simply be offering a hearsay account of facts based on their client’s instructions.  However, where the representative is a family member with caring responsibilities and direct personal knowledge of the appellant’s life, the value of their evidence will clearly increase.  Where an appellant has limited insight into their own needs, the value will increase further.

The Commissioner noted the importance of the Galo principles and that all tribunal members have been informed that in all relevant cases it is necessary to adjust the approach at hearings to ensure that ‘effective participation’ is afforded, including consideration as to whether an Applicant should be expected to provide direct oral evidence and whether a member of an Applicant’s family and/or a friend might be permitted to give written or oral evidence on an Applicant’s behalf.