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Cite as: [2009] UKUT 97 (AAC)

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SP v Secretary of State for Work and Pensions [2009] UKUT 97 (AAC) (01 June 2009)
Tribunal procedure and practice
statements of reasons

THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

DECISION OF THE DEPUTY UPPER TRIBUNAL JUDGE

The appeal is allowed.

The decision of the tribunal given at Basildon on 29/04/2008 is set aside.

The case is referred to the First tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal.

REASONS FOR DECISION

I allow the appeal on the grounds that the Statement of Reasons is inadequate. I do not consider that a claimant also has to show that she has been substantially prejudiced by the failure to provide an adequately reasoned decision. I also allow the appeal, because I have reservations that the claimant can be said to have had a fair hearing, where the Statement of Reasons has had to be corrected after it has been issued and the Secretary of State has agreed that the appeal should be allowed. It also appears to me that where there is dubiety about some of the fact and inferences that were to be drawn, that those issues were not put to the claimant for clarification before a decision was made, where those facts appear to have been crucial to the decision.

Judge CG Ward in his observations to the Case Management Direction comments:

"Comments are invited as to whether or not this is an appropriate case to allow an appeal against the decision of the tribunal on the ground of inadequacy of reasons alone, in the light of the observations in South Bucks DC v Porter (No2) [2004] UKHL 33 [2004] 1 WLR 1953 that 'A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.' This applies equally to social security cases: see CSDLA/500/2007"

Judge Ward refers to the Tribunal of Commissioner's decision in CSDLA/500/2007, but I do not consider that decision addressed itself to the issue of prejudice, as I will explain hereafter.

I do not consider that it is necessary, in a benefits appeal, for the claimant to show that "he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision". I consider that an inadequate Statement of Reasons is of itself sufficient prejudice.

It must be remembered that Lord Brown of Eaton-under-Haywood's decision on adequacy of Statement of Reasons was given in the context of an appeal under section 288 of the Town and Country Planning Act 1990. He said:

"36.The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision". [my emphasis]

In an appeal under section 288, the court can find for the appellant only in the circumstances set out in section 288(5), which provides:

"(5) On any application under this section the High Court—

(a) [interim orders];

(b) if satisfied that the order or action in question is not within the powers of this Act, or that the interests of the applicant have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation to it, may quash that order or action." [my emphasis]

A relevant requirement of the Planning Acts is that adequate Reasons are given and therefore if the Statement of Reasons is inadequate it has to be shown under section 288(5) that "the interests of the applicant have been substantially prejudiced". This is a particular requirement of this section and it is therefore understandable why Lord Brown of Easton-under-Hayward added to his summary that "A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision".

However, in Social Security legislation, there is no such statutory requirement. For that reason, I do not consider that a claimant has to show substantial prejudice if a Statement of Reasons is inadequate. If prejudice is required, it arises from the inadequacy of the Statement of Reasons. The prejudice point was argued in a licensing appeal to the Court of Session under the Licensing (Scotland) Act 1976 in Mirza v City of Glasgow Licensing Board 1996 SC 450 (2^nd Div). It was argued for the licensing board that:

"… even if the court took the view that the reasons given were inadequate, the applicant was also required to demonstrate prejudice. In support of that proposition counsel relied upon the case of Save Britain's Heritage v Number 1 Poultry Ltd. In that case, which concerned a planning decision, Lord Bridge of Harwich, at [1991] 1 WLR, p 167C, stated: "Whatever may be the position in any other legislative context, under the planning legislation, when it comes to deciding in any particular case whether the reasons given are deficient, the question is not to be answered in vacuo. The alleged deficiency will only afford a ground for quashing the decision if the court is satisfied that the interests of the applicant have been substantially prejudiced by it."

In delivering the Opinion of the Court, the Lord Justice Clerk said:

"… Where a challenge is made as to the adequacy of reasons given for a decision, we are satisfied that the test to be applied is that referred to in Wordie Property Co Ltd v Secretary of State for Scotland [1984 SLT 345]. That case was a planning case and Lord President Emslie, at 1984 SLT, p 348, said: "So far as para. 11 (1) is concerned all that requires to be said is that in order to comply with the statutory duty imposed upon him the Secretary of State must give proper and adequate reasons for his decision which deal with the substantial questions in issue in an intelligible way. The decision must, in short, leave the informed reader and the court in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it."

In Save Britain's Heritage v Number 1 Poultry Ltd Lord Bridge of Harwich expressly stated that what he was saying in relation to the issue of prejudice applied to cases under planning legislation and that the position might be different in another legislative context. Accordingly, we see no justification for applying any test other than that laid down in Wordie Property Co Ltd v Secretary of State for Scotland. Moreover, on the issue of whether prejudice requires to be established, it is noteworthy that in Wordie Property Co Ltd v Secretary of State for Scotland, at p 348, Lord President Emslie also said:

"I have only to add that in appeals such as these reasons which fail to pass the tests which I have just discussed will demonstrate a failure to comply with statutory requirements which cannot have been other than prejudicial to the appellant."

I therefore follow the reasoning in the Court of Session decision in Mirza, noting in particular Lord Bridge of Harwich's comment, "Whatever may be the position in any other legislative context", thus making clear that different consideration apply to Reasons in other statutory context.

I do not consider that the Tribunal of Commissioners considered the prejudice point in CSDLA/500/2007. It was a case concerning whether or not an illegible Record of Proceedings was sufficient to vitiate a tribunal decision. The Tribunal of Commissioners stated:

"9. Therefore, a record of proceedings may be important when there is an appeal because (for example) it may confirm a claim that there was a procedural irregularity at a hearing or because it is necessary to know what evidence was before the tribunal including the oral evidence given at a hearing. The question whether adequate reasons have been given by a tribunal may also depend on the submissions made to the tribunal. In a well known passage in South Bucks District Council v Porter (No 2) [2004] UKHL 33, [2004] 1 WLR 1953 at [36], Lord Brown of Eaton-under-Heywood said:

[Paragraph 36 quoted]

10. Those comments were made in the context of planning decisions, but they apply equally to social security cases. Identifying "the principal important controversial issues" may depend on the submissions that were made as well as the evidence that was given. Most submissions will, of course, have been advanced in the written representations before any hearing. However, where new submissions arise during the course of a hearing, it is good practice for the record of proceedings to include a brief note of them as well as a note of evidence, which might remind the chairman to deal with the point in the statement of reasons or might support a later claim that the point was raised at the hearing but not covered by the reasons."

I accept that the Tribunal of Commissioners state "Those comments were made in the context of planning decisions, but they apply equally to social security cases", but when one reads the rest of paragraph 10, the Tribunal of Commissioners was more concerned with how a Record of Proceedings linked into a Statement of Reasons and whether that might show the Statement of Reasons was inadequate. At no stage did the Tribunal of Commissioners consider the question of "prejudice" and they were not referred to either Mirza or Save Britain's Heritage v Number 1 Poultry Ltd. I therefore do not consider I am bound to follow CSDLA/500/2007, but consider that I should follow Mirza, which itself relies on the House of Lords decision in Save Britain's Heritage v Number 1 Poultry Ltd.

The tribunal rehearing the appeal should have regard to the factual issues which have caused concern in this appeal and make appropriate findings in fact in relation to them, including when the conditions was first diagnosed, when medication started and the issues identified in the Secretary of State's first submission at page 91 and the submission at paragraph 17 re ankle and joint injuries and problems. The tribunal should also consider the osteo-arthritis issue raised at paragraph 18 of those Submissions. The claimant's representative may wish to ask Dr Dhanapala to explain why he considers the current symptoms are linked to the accident – see first submission page 91 paragraph 11.

(signed)

Sir Crispin Agnew of Lochnaw Bt QC

Deputy Judge of the Upper Tribunal

Date: 1 June 2009