Upper Tribunal (Administrative Appeals Chamber)

BW v Secretary of State for Work and Pensions (Rev 1) [2009] UKUT 196 (AAC) (30 September 2009)
Tribunal procedure and practice (including UT)
evidence

IN THE UPPER TRIBUNAL                                           Appeal No.  CIB/1048/2009

ADMINISTRATIVE APPEALS CHAMBER

Before Judge S M Lane

Decision:  This decision is made under section 12(1) and (2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007.

The decision of the First-tier Tribunal is SET ASIDE because its making involved an error on a point of law.

The appeal is REMITTED to a fully reconstituted tribunal for a complete rehearing.

REASONS FOR DECISION

1.     From 3 November 2008, the functions of the Social Security Commissioners were transferred to the Upper Tribunal (Administrative Appeals Chamber), under whose jurisdiction this decision is now given.  The functions of the Social Security Appeals Tribunal were transferred to the First-tier Tribunal (Social Entitlement Chamber) on the same date.  The new designations and judicial titles are used throughout this decision.

2.     The appellant appeals the decision of the Ipswich tribunal with a First-tier Judge’s permission.  That tribunal had disallowed the appellant’s appeal against the Secretary of State’s decision that she was not entitled to Incapacity Credits from and including 25/02/08 because she was no longer incapable of work, having failed to score sufficient points to pass a Personal Capability Assessment (‘PCA’) carried out on 14/1/08. 

3.     Tribunals may find the Secretary of State’s evidence in this appeal relating to the retrieval of archived PCA papers of some practical assistance in deciding when an adjournment is appropriate to obtain a missing PCA. 

4.     In the Secretary of State’s Submission to the tribunal, the decision maker acknowledged that the appellant had had a previous PCA assessment but that the documents relating to it were not currently available.  In a written submission to the tribunal, the appellant’s representative specifically asked the tribunal to consider the lack of the previous PCA and put a number of legal arguments on this issue to the tribunal.  In addition, the representative indicated that the appellant’s condition had changed very little since the previous PCA in 2004.  In its Statement of Reasons, the tribunal does not address the legal issues raised by the appellant and simply states that earlier examination reports are no longer available.  The appellant appealed on the basis that the tribunal made an error of law in failing to adjourn in order for the documents relating to the previous PCA to be provided.

5.     The First-tier Judge who granted permission to appeal noted that the particular appeals centre providing Submissions to his area appeared to have ‘a unique difficulty in accessing past papers relating to the PCA’.  He highlighted three areas in which the tribunal may have erred:  (i) by failing to go behind a statement that past papers were not available; (ii) by failing to adjourn for the archives to be searched if an appellant says there has been no improvement since the last PCA; and (iii) if the appellant has a longstanding condition of a nature not likely to improve, whether the appeal be allowed on the basis that the DWP have not discharged the burden of proof on them to show that there were grounds to supersede the existing decision.

Going behind the statement that papers are unavailable

6.     It goes without saying that tribunals must read carefully what the submission writer has said about previous papers.  In this case, the submission writer stated clearly that the papers were ‘currently’ unavailable, not that they could not or never could be obtained, or were lost or destroyed.  This was, therefore, an appeal in which there was every possibility that the papers could be retrieved, and the tribunal should have gone behind the submission writer’s statement.   In his helpful Submission to the Upper Tribunal, the Secretary of State notes that changes in departmental policy mean that, in some offices at least, older case papers are weeded after two years and held in remote storage sites, and that submission writers may no longer routinely search for and retrieve previous PCAs as this may cause a delay in issuing the Submission.  He states, however, that submission writers should obtain previous papers where the claimant’s grounds of appeal include any reference to there being no change in, or a worsening of his condition.  In this appeal, this should have been done, but was not. 

Should the tribunal have adjourned for the archives to be searched?

7.     In this appeal, yes, and it was an error of law not to do so.  Although under regulation 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 the Secretary of State may supersede an incapacity benefit decision where, put simply, he has received a fresh PCA report, he has a discretion whether or not to do so.  The chief ground of dispute between the parties is normally the weight to be given to that report, and for that reason a previous report may well be potentially relevant as tending to show that the fresh report is neither accurate nor a sufficient basis for superseding the existing award.  This will most obviously be so where, as here, the appellant passed the previous assessment and asserts that there is no change, or that his condition has deteriorated: CIB/3985/2001.  

8.     In many cases, the only way for an appellant to get the previous report placed before the tribunal will be for the tribunal itself to require its production.  It will usually be appropriate for the tribunal to adjourn to obtain the previous reports, not only in order to fulfil its inquisitorial duty but also to maintain equality of arms between the appellant and the Secretary of State.  There can, however, be no absolute rule, given the widely differing factual situations that arise.  A significant change of circumstances since the previous report (an operation, for example, or a new medication that satisfactorily controls the condition causing the appellant’s disability) may lead the tribunal to the conclusion that the previous report is insufficiently relevant to justify a delay in acquiring it.  If the tribunal decides not to adjourn, their reasons must be clearly discernible from their Statement of Reasons, and sufficient to justify their decision in terms of affording the appellant a fair hearing.

Must a tribunal allow an appeal in the absence of a previous report where the appellant has a longstanding condition of a nature not likely to improve?

9.      In this appeal, the previous report was in existence and should have been obtained.  Indeed, the Secretary of State has now produced the report, which is filed in the Submission for the next hearing.  It is therefore strictly unnecessary to answer this question.  As a matter of principle, however, the answer must be ‘no’.  The question must be looked at in the context of regulation 6(2)(g).  A previous report may be irretrievably lost or may no longer exist, but it is no longer necessary Secretary of State to show a change of circumstance other than the fresh PCA in order to supersede an existing award.  The relevance of the previous report lies only in its capacity to cast doubt on the accuracy and sufficiency of the fresh one.  The tribunal may consider, having regard to all of the evidence available, that the strength of the Secretary of State’s case is such that the his decision to supersede was sustainable on the balance of probabilities.   

10. The appeal is remitted to the First-tier Tribunal (Social Entitlement Chamber) for a complete rehearing, making such findings of fact as are necessary.

[Signed on original]                                                                                          S M Lane

Judge of the Upper Tribunal

[Dated]                                                                                               22 October 2009