Social Security Case Law - Winter 2024

Headnote

A panel member losing concentration during a Tribunal Hearing can be procedurally unfair and amount to an error in law.

Background

The appellant was previously in receipt of Disability Living Allowance as a child, and upon turning sixteen, made a claim for Personal Independence Payment arising out of additional needs stemming from the following conditions: asthma, ectopic eczema, allergic reactions, persistent rhinitis, reading difficulties and a bulge in his right knee.  The Department determined that he did not meet the entitlement criteria. The appellant was represented by Law Centre NI at the tribunal hearing. However, after the Tribunal disallowed the appeal, the representative applied for permission to appeal to the Commissioner submitting that the Tribunal had erred in law.

Legal Issue

The Commissioner had to determine whether the Tribunal had erred in law in regard to a number of issues raised by the appellant, including: whether it correctly interpreted the evidence: if it failed to give adequate reasoning for its decision; if it provided an unintelligible record of proceedings; and that it was procedurally unfair for a panel member to fall asleep during the tribunal hearing.

Decision

The Commissioner set aside the decision of the appeal tribunal and has referred the case to a newly constituted tribunal for determination. The Department supported the application to appeal on the grounds that the Tribunal erred in law by failing to provide adequate reasoning under descriptors ‘reading’ and ‘budgeting’.

Additionally, the Commissioner noted the specific allegation in the grounds of appeal that a panel member’s head had been observed to ‘drop forward and jerk back up’ and that this would require an investigation before it could be resolved by the Commissioner. However, following a complaint to the President of Appeals Tribunal, the issue had already been investigated in relation to the Code of Practice and the President’s response had been provided to the Commissioner. The President’s investigation concluded that the LQM ‘may have lost concentration for a period during the hearing’. The Department supported this ground for appeal and submitted that the tribunal had erred in law in a way that was procedurally unfair.

The Commissioner allowed the President’s letter outlining the investigation outcome to be admitted as evidence  that the Tribunal proceedings were unfair as set out in the appellants submissions and now supported by the Department noting:

The President’s correspondence is consistent with the submissions of the appellant that the tribunal proceedings were unfair.’  (Para 22)

Relevant Legislation

• Article 82 of the Welfare Reform (NI) Order 2015
• Personal Independence Payment Regulations (NI) 2016 (the 2016 Regulations)