Upper Tribunal (Administrative Appeals Chamber)

[2009] UKUT 61 (AAC)(31 March 2009)
Tribunal procedure and practice
evidence

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

The DECISION of the Upper Tribunal is to allow the appeal by the appellant.

The decision of the Wakefield appeal tribunal dated 27 May 2008 under file reference 008/07/03079 involves an error on a point of law.

The Upper Tribunal is not in a position to re-make the decision under appeal.

It therefore follows that the appellant's appeal against the Secretary of State's decision dated 14 September 2007 has to be sent back, to be re-heard by a different First-tier Tribunal.

My decision is given under section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007.

I refuse the request for an oral hearing before the Upper Tribunal as the appeal can properly be determined without a hearing.

REASONS FOR DECISION

The decision in summary

1. The appellant's appeal to the Upper Tribunal (formerly the Social Security Commissioner) is allowed. The decision of the Wakefield appeal tribunal dated 27 May 2008 under file reference 008/07/03079 involves an error on a point of law.

The background to the appeal to the tribunal

2. The appellant, a woman who is now aged 48, completed an IB50 questionnaire as long ago now as March 2007 (pp.25-43), in which she described her health problems, which included depression, knee pain and some incontinence. She underwent a medical examination for the purposes of incapacity benefit on 18 July 2007. The IB85 medical report prepared by the examining medical practitioner (EMP) confirmed the diagnoses as depression, hypertension and knee pain (pp.45-67).
3. On the basis of that report, a decision maker acting on behalf of the Secretary of State awarded the appellant 3 points for the physical health descriptors and 4 mental health points (pp.68-72). In contrast, following an earlier medical examination in 2004, the appellant had scored 19 mental health points and had been accepted at that time as being incapable of work.
4. As the statutory threshold for incapacity for work on physical grounds alone, or physical and mental health factors together, is 15 points, and 10 points for mental health descriptors alone, the new decision was to supersede the 2004 decision and to find that the appellant was no longer incapable of work. The appellant appealed that decision (pp.1-3) and asked for an oral hearing. The appeal bundle also included two letters about the appellant, said to be from health professionals.
5. The first purports to come from the appellant's GP (p.76). It is not on official headed notepaper and is handwritten and undated (but stamped as received 4 December 2007). It is addressed "To whome it may concern" and states that "in my expert opinon" the appellant "is not fit to resume work" and "is dependant on drugs and alcohol". At first sight the handwriting does not appear to be the same as that of the appellant, but the Upper Tribunal does not have expertise in graphology.
6. The second letter purports to come from the appellant's therapist (p.78). It is typed but again is not on official headed notepaper and is undated (but stamped as received on 27 February 2008). Again, this is addressed "TO WHOME IT MAY CONCERN". It states that the appellant was not fit "to attend the oral meeting…. I do not feel she can handle a trip to Leeeds by herself due to her health problems as you may well no by now [she] is addicted to drugs and alcohol".
7. The Wakefield appeal tribunal held its first hearing on 13 March 2008. The appellant did not attend. The tribunal adjourned the appeal (p.83), expressing its concern about the two letters and indeed

'the authenticity of those letters. The appellant is put on notice that unless properly headed letters clearly signed by the authors are filed with the tribunal prior to the next hearing the 2 existing letters are likely to be disregarded. The tribunal expect in particular a full and detailed explanation as to the provenance of the latter at page 78.'

8. The appellant responded by writing to the tribunal, stating that: "First of all I do not understand what you mean about headed paper. I have a letter from my solicitor and it is not on headed paper if that is what you mean". In response to a particular note in the EMP's medical report, at the end of the findings on her mental state – "wearing make up, hair was braided with beads" (p.65) – the appellant wrote: "I do not no what my hair being in braid have to do with my medical interview". It is clear from the file that there were subsequently some telephone discussions between a tribunal clerk and the appellant about the importance of obtaining headed letters from her GP (p.87).

The Wakefield appeal tribunal's decision

9. A tribunal, comprising a lawyer and a medical member, differently constituted from the first adjourned tribunal, sat at Wakefield on 27 May 2008 to hear the appeal (pp.89-94). The appellant again failed to attend. The tribunal proceeded to deal with the case; its decision was to confirm the Secretary of State's decision and so to dismiss the appeal.
10. The tribunal subsequently issued a short statement of reasons for its decision (pp.99-100). The tribunal's five brief paragraphs of reasons included the following:

'2. On examination both letters contained glaring spelling mistakes. The word "know" is misspelt in the therapist's report in the same way as [the appellant] misspelt it. The phraseology was highly suspect. The reference to her addition to "drink and drugs" conflicted with the pack and EMP.

3. I rang the surgery. The surgery have no records of the letter. They would normally send out a report on headed paper. The surgery staff (3 of them) went through their records. There was no record of such a letter ever having been sent out.

4. The Tribunal found that the production of the unauthenticated letters materially affected [the appellant's] credibility."

11. After receiving the statement of reasons, the appellant wrote back to the Tribunals Service stating that she did:

"not know anything of spelling mistakes. I am at a loss about the letters. The only thing I can think of in this present time is that it may have something to do with an ex boyfriend of mine. This is an ongoing situation involving the police… He has sent me letters threatening and promising to get his own back."

It should also be said that when interviewed by the EMP, the appellant had referred to threats from her former boyfriend as worsening her depression.

12. A District Tribunal Judge granted the appellant permission to appeal, in part because "the involvement of the tribunal in collecting evidence may be an issue" and in part because of the tribunal's "simple acceptance" of the EMP's report.
13. The Secretary of State's representative now involved in the case has provided a helpful submission supporting the appellant's appeal. In summary, he argues that (1) the tribunal chairman was entitled, but not obliged, to telephone the GP's surgery, as the tribunal "stands in the shoes" of the initial decision maker; but (2) the tribunal had failed to give the appellant an opportunity to respond to the information obtained by telephone from the surgery, and so had erred in law; (3) the tribunal had also given inadequate reasons for accepting the EMP's assessment of the appellant's mental health condition.

The error of law involved in the tribunal's decision

14. The tribunal's unquestioning acceptance of the EMP report's conclusions on the mental health descriptors is arguably one ground on which the tribunal erred in law. In doing so it failed to provide a sufficient explanation of the reasons for its decision.
15. However, the real problem was the tribunal chairman's decision to telephone the GP's surgery and (it appears) to question them about the contents of the appellant's medical file and the surgery's standard office procedures. The Secretary of State's representative submits that the tribunal chairman was entitled to do so in the exercise of the tribunal's inquisitorial function (citing the decision of the Tribunal of Commissioners in reported decision R(IS) 17/04 at paragraph 26).
16. There are, however, limits to the inquisitorial function of tribunals. It is one thing for a tribunal to instigate inquiries as part of its inquisitorial role (in contradistinction to the adversarial approach traditionally, but less so today, associated with the courts). It is quite another thing for one member of a tribunal actively to collect evidence relating to the appeal, which moreover was presumably not heard directly by the medical member of the tribunal. The chairman in this case stepped over the line – she stopped being a judge and became both an investigator and a witness.
17. In CIB/4137/2001 Mr Commissioner Williams criticised a tribunal chairman for adjourning a hearing briefly in order to telephone a judicial colleague, apparently for advice on a human rights issue. The learned Commissioner held that the tribunal had erred in law and, in doing so, ruled as follows (at paragraph 10):

"It is improper for a chairman to telephone any third person during an ongoing tribunal hearing for any substantive reason related to the hearing. Additionally, it is improper for a tribunal to act on such a communication without giving the parties full details of it and an opportunity to answer it. To do so is both to deny the parties a fair hearing and to introduce a real possibility of bias in the decision made."

18. I do not need to decide whether the unqualified nature of the first sentence cited from Mr Commissioner Williams's decision should stand as an absolute proposition in all circumstances. There is also a clear difference between on the one hand a tribunal judge contacting a judicial colleague for advice and guidance on the relevant law and procedure and, on the other hand, a tribunal judge directly contacting a potential witness on a factual matter relevant to the particular appeal under consideration.
19. A distinguished former Chief Commissioner discussed the limits of the tribunal's inquisitorial approach in R(I) 1/65, pointing out that ultimately the onus was on the parties to produce the evidence on which they wished to rely. According to Commissioner Micklethwait (at paragraph 15):

'The duty of the medical appeal tribunal and the Commissioner is to decide the appeals on the evidence put before them. No doubt they are entitled to initiate inquiries if they think fit. But it is a matter for their discretion, and they are not bound to do so.'

20. The function of tribunals is therefore to decide the appeals on the evidence put before them, not on the evidence collected by them on the day of the hearing and not put to the claimant. In the present case the failure to put the evidence gathered from the GP's surgery by telephone to the appellant for comment compounded the tribunal chairman's error. The case was being decided, in part at least, on evidence that had simply not been disclosed to the appellant. The tribunal's failure could not be excused by simply drawing an adverse inference from the appellant's failure to comply with the original tribunal's direction, allied with her non-attendance at the second tribunal. For all the second tribunal knew, and as the appellant in fact wrote afterwards, she may have been intending to attend that hearing and yet have made an honest mistake about the date.
21. There is a further possible problem with the tribunal's handling of this case. The Secretary of State's decision under appeal had been made on 14 September 2007. The two letters in question were stamped as having been received in December 2007 and in February 2008. By law a tribunal "shall not take into account any circumstances not obtaining at the time when the decision appealed against was made" (Social Security Act 1998, section 12(8)(b)).
22. However, section 12(8)(b) is concerned with changes of circumstances that occur after the date of the decision under appeal, and not with evidence of circumstances that may have been material at the time of the decision (see R(DLA) 2/01 and R(DLA) 3/01). It is therefore perfectly proper to rely on evidence relating to a period after the date of the decision in order to assess the credibility and reliability of evidence given at or before that date (see CSDLA/854/2003).

What should the tribunal have done as a matter of good practice?

23. It is plain that both tribunals had very good reason to doubt the authenticity of the two letters in question. The first tribunal had quite properly adjourned and put the appellant on notice that she was required to authenticate both letters. The appellant did not attend to do so. So what should the second tribunal have done? In practice the second tribunal had three options open to it.
24. First, it could have simply decided to proceed with the hearing and still reached the same view that the authenticity of the letters had not been established, so undermining the appellant's credibility. The tribunal could then have considered the rest of the evidence and decided whether or not to allow or dismiss the appeal.
25. Secondly, the tribunal could have asked the tribunal clerk at the hearing to make a telephone call to the surgery, with instructions to ask one or more specific questions about the purported letter. In particular, this might have been followed up on the day by the clerk faxing a copy of the letter in question to the GP's surgery with a specific request to confirm whether a copy was indeed held on file there. Depending on the outcome of such an enquiry, initiated by the tribunal but carried out by the clerk, the tribunal could then have proceeded either to decide the appeal or to adjourn it for the appellant to comment on the evidence obtained through the clerk.
26. Thirdly, the tribunal could simply have adjourned the appeal again and put in train enquiries, for example instructing a tribunal clerk to write to the surgery with a copy of the first letter and asking them if there was a copy on file and whether indeed it had been written by one of the GPs at the practice. The case would then have had to be re-listed for a third hearing.
27. In practice most tribunals would probably, and quite reasonably, take the first of these three possible courses of action, given that there had already been one adjournment and the appellant had been put on clear notice as to the need to address the tribunal's concerns. The important point, however, is that each of these three courses of action would have ensured that the tribunal maintained its exclusively judicial role. The action taken by the tribunal chairman in the present case did not.

Conclusion

28. I must allow the appeal. The tribunal's decision involves an error of law as explained above. This error of law is such that I must set the tribunal's decision aside under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. I do not believe that it is appropriate for me to re-make the tribunal's decision.
29. The reason for this is the appellant has argued that the letters in question may be something to do with a campaign of harassment by her former boyfriend. She does not explain how, if this is the case, the therapist's letter appears to be countersigned by her, but she is entitled to put her arguments to a new First-tier Tribunal.
30. The tribunal, of course, has no criminal jurisdiction, but will be aware that in certain circumstances knowingly making false statements or representations or producing or furnishing documents which are known to be false in a material particular, for the purposes of obtaining a social security benefit, can be a criminal offence (Social Security Administration Act 1992, section 112(1)).
31. The appellant's appeal against the Secretary of State's decision dated 14 September 2007 is accordingly remitted under section 12(2)(b)(i) of the 2007 Act so that it may be re-heard by a differently constituted First-tier Tribunal.
32. I must obviously stress that the fact that the appellant's appeal to the Upper Tribunal has succeeded should not be taken as any indication as to the outcome of the rehearing before the new First-tier Tribunal.
33. The new tribunal will have to form its own judgment as to the merits of the case and the weight, if any, to be attached to the various items of evidence.

Directions for the rehearing

34. I make the following specific directions for the rehearing.

(1) The rehearing will be at an oral hearing.

(2) The new tribunal should not involve any member who has previously been a member of a tribunal involved in this appeal.

(3) The appellant is reminded that the tribunal can only deal with the appeal as at the date of the original decision under appeal.

35. These directions are subject to any later directions by a District Tribunal Judge. Given the nature of one of the appellant's health conditions, the District tribunal Judge may think it appropriate to direct that at least one member of the new tribunal should be female.

Outcome of this appeal to the Upper Tribunal

36. My decision is therefore as set out above.

Signed on the original Nicholas Wikeley

on 31 March 2009 Judge of the Upper Tribunal