Social Security Case Law - Summer 2024

Headnote

Tribunals considering making a less favourable award must explain to the appellant that it has powers to make a decision in regards all descriptors, including existing awards, and it is considering doing so,  and on what grounds.

Background

Following an appeal before an appeal tribunal, the claimant’s daily living component was increased to seven points. Unfortunately, her existing mobility component was reduced from ten points to four points and her standard rate daily living component was taken away.

Although, the claimant (a self-represented litigant) was denied initially leave to appeal by the legal member of the Tribunal who had heard the appeal on the grounds that her application was regarding factual matters and not an error of law – the Commissioner identified areas where Tribunal fell into error of law in relation to fair process and the application was accepted.

Legal Issue

The Commissioner highlighted the importance that should a Tribunal consider components not in dispute by the claimant that it must follow certain procedural safeguards in order to uphold fairness, especially in the case of a self-represented inexperienced litigant.

The Tribunal must alert the appellant to the powers of the Tribunal and explain the risk in relation to any existing awards that the claimant has. The Commissioner stated that acknowledgement of this power in the TAS forms is not enough and does not extinguish the duty on the Tribunal to explain the risk to them.

Relevant Legislation

• Article 13(8)(a) of the Social Security (Northern Ireland) Order 1998

Relevant Case Law

• CS/343/1994

The Commissioner cautioned against going behind the record of proceedings without clear and convincing evidence that the position has not been properly represented. 

• C15/08/09 (DLA)

Outlined various safeguarding principles to apply  when a Tribunal chooses to look at an aspect of the appeal which is not in dispute.

• DM v Department for Social Development (DLA) [2010] NICom 335

Highlighted the importance of the duty to give an appellant notice of a tribunal’s intention to make a less favourable award; that notice, needs to be sufficient to allow an appellant the opportunity to consider whether they require an adjournment to provide further evidence on the issue, or whether they might wish to withdraw the appeal.

• DP v Department for Communities (PIP) [2020] NICom 1

The Chief Commissioner confirmed that the principles set out in these C15/08-09 and DM v Department for Social Development cases apply also to those where the PIP is being considered.

Decision

The Commissioner determined that the Tribunal failed to explain that it had the powers to make a less favourable award than one that was already made, that it was considering doing so and on what grounds. It was decided that this error in law would have a real significance to the outcome of the hearing and therefore amounted to procedural irregularity that resulted in unfairness.

The earlier Tribunal decision was set aside and has been sent to a new Tribunal to determine, after the reinstatement of the standard rate mobility component.