Upper Tribunal (Administrative Appeals Chamber)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007:

The decision of the First-tier Tribunal at Fox Court under reference 160/09/00008, held on 18 February 2009, did not involve the making of an error on a point of law.

Reasons for Decision

A.          The issues and how they arise

1.           The claimant was awarded a disability living allowance from 2004 to 2008. The award consisted of the mobility component at the higher rate and the care component at the highest rate. On her 'renewal' claim in 2008, she was awarded a disability living allowance until 2011. This time, the award consisted of the mobility component at the lower rate and the care component at the middle rate. She exercised her right of appeal and, at the start of the hearing, the presiding judge warned her and her representative that it would be considering whether the middle rate of the care component was properly included in the award. Having heard her evidence, it reduced the care component to the lowest rate.

2.           In those circumstances, four questions arise. First, does a tribunal have jurisdiction to deal with an aspect of an award that was not put in issue between the parties? Second, if it does, in what circumstances may the tribunal exercise its jurisdiction? Third, if the tribunal has jurisdiction, subject to what conditions may it exercise it? This question is about due process. The claimant must have notice that the tribunal will be considering the issue and time to prepare: R(F) 1/72 at [9]. That principle is not in dispute. Fourth, in what circumstances will there be an error of law in the tribunal’s decision to exercise its jurisdiction?

3.           I need to answer those questions in order to evaluate the grounds of appeal.

B.          Analysis – the first and second questions

4.           Does a tribunal have jurisdiction to deal with an aspect of an award that was not put in issue between the parties? If it does, in what circumstances may the tribunal exercise its jurisdiction?

Historical development

5.           These questions have arisen from the beginning of the modern social security jurisdiction. They have not been affected by the creation of the First-tier Tribunal on 3 November 2008. The principles were applied alike to the appeal tribunal and the Commissioners: R(F) 1/72 at [9]. From the start, a tribunal’s jurisdiction was not limited to the issues raised by the parties. Its duty was to decide the case correctly: R(P) 1/55 at [12]. In order to do so, it even had jurisdiction to deal with issues that had not been considered by the decision-maker: R(U) 2/54. The Commissioners distinguished between the duty to consider the issues raised by the parties and the power to consider other issues. The Commissioner’s remarks in R(U) 2/54 exemplify this distinction (my emphasis):

‘8. … They were required to determine, firstly whether the claimant had voluntarily left her employment and if so whether she had just cause for so doing. They were also entitled to determine, if necessary, whether in the circumstances the claimant’s action in taking time off on the Saturday amounted to misconduct.’

The tribunal’s duty was not limited to issues raised by the parties. The Commissioners held that in some circumstances a tribunal, as part of its inquisitorial role, was under a duty to identify, investigate and decide issues. Usually, but not exclusively, that duty arose for the benefit of the claimant.

6.           These principles were affected by statute. Tribunals were given jurisdiction to deal with questions first arising in the course of an appeal: eventually consolidated in section 36 of the Social Security Administration Act 1992. This provision had little practical significance and was repealed without noticeable effect in 1999. For some reason, it is retained in the child support jurisdiction, although only for the Upper Tribunal: section 24(2) of the Child Support Act 1991.

7.           Statute also restricted the jurisdiction that a tribunal would otherwise have. It thus restricted the power to review a decision awarding disablement benefit for a change of circumstances to cases of unforeseen aggravation, excluding cases of unforeseen improvement: section 47(4) of the Social Security Administration Act 1992. The changes made by the Social Security Act 1998 were more fundamental. The Act removed the tribunal’s jurisdiction to deal with changes of circumstances that occurred after the decision-maker’s decision: sections 8(2)(a) and 20(7)(b). And it relieved the tribunal of the duty to consider issues that had not been raised by the parties: section 20(7)(a):

‘In deciding an appeal under this section, the First-tier Tribunal-

(a) need not consider any issue that is not raised by the appeal; …’

This provision merely restricts the scope of the tribunal’s duty. It relieves the tribunal of the duty to consider issues that have not been raised by the parties. The tribunal’s duty to consider the issues raised by the parties, in so far as necessary in order to dispose of the appeal, is unaffected. Also unaffected is the tribunal’s power to consider those other issues.

The caselaw

8.           The proper exercise of this power was considered by a Tribunal of Commissioners in R(IB) 2/04. The Tribunal analysed the power as arising under section 12(8)(a). To me, the historical analysis suggests that the discretion arises independently of the section. I cannot see that this difference affects the analysis. The Tribunal said:

‘93. Fifth, the “strong” guidance which CPAG submits that we should give in relation to exercise of the tribunal’s discretion in section 12(8)(a) is that it would “normally” be inappropriate for the tribunal to consider superseding an award adversely to the claimant when the Secretary of State did not. However, any such guidance would in our judgment be so vague as to be of no assistance, since it would give no real indication as to when it would be appropriate for the tribunal to exercise its discretion to consider superseding adversely to the claimant when that was not in issue in the appeal. The discretion is one to be exercised judicially, taking into account all the circumstances of the particular case. We do not think it appropriate or helpful to attempt to formulate guidance as to the exercise of the discretion.’

9.           The Tribunal referred to the ‘legitimate public interest in ensuring’ that claimants receive no more and no less than their proper entitlement to benefit: at [32]. Collins J also referred to the public interest in R (Starling) v Child Support Commissioners [2008] EWHC 1319 (Admin). He was there considering the child support equivalent of section 12(8)(a) (section 20(7)(a) of the Child Support Act 1991):

‘30. It is clear that in those circumstances the tribunal does have the obligation to ensure that public funds are properly protected even if the Secretary of State's representative does not take the points that perhaps ought to have been taken. In that sense clearly the tribunal has an inquisitorial role.

31. Mr Burrows submits that the situation is different in child support cases because the main issue is between the ex‑husband and wife but there is a third party, the Secretary of State. However it is not directly concerned with public funds.

32. Nonetheless I am satisfied that there is a public interest involved, the public interest being primarily that the payments are for the benefit of the children and thus the children's welfare is in issue. Indeed the whole system is set up by Parliament as a substitute for what used to be court hearings in relation to such matters. So there is clearly a public element involved in it. Secondly it may well be the result if proper maintenance payments are not made by a non‑resident parent ‑ usually the husband ‑ that the state may have to provide benefits which it would not otherwise have to provide. It seems to me in those circumstances that the tribunal does have a similar inquisitorial role and it is open to it in any given case to take points and to go into matters which affect, in its view, the assessment of the income which is available to the absent non‑resident parent, in this case Mr Starling.

33. The point that is particularly made by Mr Burrows is that the appeal is against the decision of the Secretary of State. This particular issue ‑ that is the paragraph 26 issue ‑ was not raised by the Secretary of State, nor indeed by Mr Starling's ex‑wife. Accordingly it does not properly fall within the decision against which an appeal is brought. It is no part of the Secretary of State's decision to consider the paragraph 26 issue. However the Secretary of State's decision was the assessment of the appropriate amount which should be regarded as the assessed income for the purpose of maintenance payments. It is against that decision that the appeal is brought. The fact that the Secretary of State did not have regard to a particular issue, a particular piece of evidence, in reaching his decision does not seem to me to mean that it is a matter which could not be dealt with by the tribunal on appeal. It is the decision as to correct amount which is the subject of the appeal. Thus the tribunal is seized of that issue: what is the correct amount?’

10.        In CDLA/0884/2008, Mr Commissioner Rowland said:

‘7. I am satisfied that, among other errors to which I shall refer below, the tribunal erred in law in failing to explain why it decided to consider entitlement to the mobility component and to the lowest rate of the care component when such entitlement was not in issue between the parties … and also in superseding the existing award on the ground of change of circumstances …

8. An increasing number of appeals before Commissioners seem to be cases where a tribunal has made a decision less favourable to the claimant than the one the claimant was challenging before the tribunal. It is not surprising that appeals should be brought before Commissioners in such cases, particularly as the consequence of any such decision is that there will have been an overpayment, the recoverability of which will have been left undetermined by the tribunal. Tribunals need to be aware of the dangers of being both prosecutor and judge, one of which is the risk of making errors unprompted by the parties. Such errors are too common and are contributing significantly to the caseload of Commissioners. It is particularly unfortunate that two of the several errors made by the tribunal in the present case were on points in respect of which a Tribunal of Commissioners had relatively recently given clear guidance.

9. There are other risks in being both prosecutor and judge. The most obvious is that there can be a perception that the tribunal has prejudged the case. Of course a tribunal has an inquisitorial or investigative role but here it is noteworthy that the tribunal, having apparently formed the (not unreasonable) view on the papers that the claimant’s entitlement to any disability living allowance was doubtful, started the proceedings by warning the claimant that his existing award was at risk and advising him that he could withdraw his appeal. The claimant having declined to withdraw his appeal, the tribunal then launched straight into the question of the claimant’s entitlement to the mobility component, by questioning him about how he had got to the hearing, without first listening to what the claimant had to say about his needs for care which was the issue upon which he had brought his appeal. It is little wonder that the claimant says, in effect, that he formed an early view that the tribunal was more interested in its own agenda than in what he had to say.

10. Mr Spencer also points out that it is not necessarily enough for a tribunal to warn a claimant that his existing award is at risk and give him the opportunity to withdraw his appeal. He refers me to paragraph 94 of the Tribunal of Commissioners’ decision, in which they said that it was necessary that “the claimant has sufficient notice of the tribunal’s intention to consider superseding adversely to him to enable him properly to prepare his case.” Here, the claimant had no advance notice of the possible case against him in respect of either the mobility component or the lowest rate of the care component and there is no indication that it was explained to him that the risk to his existing award was not merely theoretical. … A tribunal is in a difficult position. If it gives the claimant too robust a warning at the beginning of a hearing, it runs the risk of giving the impression of having prejudged the case. If it does not give such a robust warning, the warning may not adequately convey to the claimant the case he or she needs to consider resisting with the consequence that a decision not to withdraw the appeal, or not to ask for an adjournment, is not fully informed. This is a powerful reason for tribunals refraining from making decisions less favourable to claimants than the decisions being challenged, except in the most obvious cases (e.g., where the evidence is overwhelming or the facts are not in dispute and no element of judgment is involved or where the law has been misapplied by the Secretary of State) or after an appropriate adjournment. In such obvious cases, a failure expressly to state why a tribunal has considered a point not in issue between the parties will not necessarily render the tribunal’s decision erroneous in point of law; in less obvious cases, the absence of a reason for considering the point may suggest that the discretion to do so has not been exercised properly.’

11.        In identifying the proposition for which a decision is authority, it is important to distinguish between rulings on the law and general advice. As a matter of law, the Commissioner treated the tribunal as having a power, but not a duty, to consider the additional issue. He was not seeking to circumscribe the tribunal’s jurisdiction. Nor was he setting threshold criteria for the exercise of the tribunal’s jurisdiction. Rather, as the opening words of paragraph 7 and the closing words of paragraph 10 show, he was concerned with the adequacy of the tribunal’s reasons to explain why it had exercised its jurisdiction. With respect, his approach to the law is unexceptional. The need for a conscious exercise of a power and an explanation for it is consistent with the decision in R(IB) 2/04, where the Tribunal of Commissioners said:

‘93. There must, however, be a conscious exercise of this discretion and (if a statement of reasons is requested) some explanation in the statement as to the reasons why it was exercised in the manner it was.’

And the notion that the adequacy of reasons varies according to the nature of the exercise is consistent with the approach of the Court of Appeal in Jones v Governing Body of Burdett Coutts School [1999] ICR 38. Walker LJ there said that ‘if any court or tribunal exercises its discretion in a particularly unusual manner it is bound to give reasons’ (at 47).

12.        As to the Commissioner’s advice, the need to avoid appearing to pre-judge a case is again unexceptional. I would only comment that presiding judges have considerable experience at steering a course between conveying fair warning and prejudgment.

13.        It may be possible to discern the Commissioner’s view that tribunals should not generally take the initiative in investigating and removing components of awards that are not in issue. That may or may not be so. His comments may have been coloured by the circumstances of that case, which were extreme. Whatever his views, he did not seek to limit a tribunal’s jurisdiction or powers to fit in with them. Specifically, he did not say, still less did he decide, that the power should only be exercised in obvious cases.

14.        In C15/08-09(DLA), Mr Commissioner Mullan summarised the caselaw in a series of propositions. They included:

‘the LQPM of the appeal tribunal is at liberty to draw any doubts about the validity of the decision to the Department’s attention in the decision notice and can arrange for the parties to be sent a copy of the record of proceedings without them having to request it. That action would enable the Department to consider a supersession or revision.’

He went on:

‘62. The last principle was derived from the decision of Commissioner Rowland in CDLA/884/2008. With respect to the Commissioner, I do not agree with his conclusion. I would state the relevant principle to be:

(x) Where the appeal tribunal has any doubt concerning the validity of the decision under appeal, where that decision incorporates an existing award, it is under a duty to undertake a full investigation of the legitimacy of the existing award and determine whether that award is correct.’

15.        The Commissioner derived that duty from the comments of the Tribunal of Commissioners in R(IB) 2/04 at [32]. With respect, that passage has to be read in the context of the decision as a whole. Paragraph 93 makes clear that there is a discretion, not a duty. It would be inconsistent with the existence of a discretion to identify a single criterion that would determine its exercise. A judicial discretion must be exercised in the light of all the relevant circumstances. It involves what the courts have called a ‘balancing exercise’ that has to be undertaken for the individual case. A single criterion would subvert that process.

16.        Both those decisions were considered by Upper Tribunal Judge Lane in BK v Secretary of State for Work and Pensions [2009] UKUT 258 (AAC):

‘16. Unsurprisingly, conflicting approaches to the exercise by a tribunal of this discretion have emerged in the case law. In C15/08-09(DLA) (Northern Ireland), Commissioner Mullan considered, after an extensive review of the case law, that an appeal tribunal should always investigate an element of an existing award if it has any doubt concerning its validity (paragraph [62]). In CDLA/884/2008, on the other hand, Judge Rowland, contemplates that a tribunal should steer clear of considering an element of an award which has not been put in issue by the parties:

‘except in the most obvious cases (e.g., where the evidence is overwhelming or the facts are not in dispute and no element of judgement is involved or where the law has been misapplied by the Secretary of State) or after an adjournment. In such obvious cases, a failure expressly to state why a tribunal has considered a point not in issue between the parties will not necessarily render the tribunal’s decision erroneous in point of law; in less obvious cases, the absence of a reason for considering the point may suggest that the discretion to do so has not been exercised properly’ - paragraph [10] of CDLA/884/2008 (italics added).

17. In my view, where a First-tier Tribunal has a real doubt about an existing unappealed element of an award, it should normally investigate it. It has a duty, qualified by the exercise of its discretion, to do so. The Upper Tribunal should not seek to limit the First-tier Tribunal’s discretion. Indeed, in R(IB)2/04 the Tribunal of Commissioners specifically declined to give advice about how that discretion was to be exercised (paragraph [93]). The comments in CDLA/884/2008, which are not binding in law, should not be taken to detract from the principle confirmed in R(IB)2/04 by the Tribunal of Commissioners. In practical terms, of course, it is unlikely that a tribunal would embark upon consideration of an unappealed element of an award unless the defects in it were patent.’

17.        I respectfully disagree with the analysis in paragraph 17 for these reasons. The references to ‘real doubt’ and ‘patent’ are, with respect, either inappropriate or liable to misinterpretation. If they are intended to indicate the circumstances in which the tribunal should normally exercise its discretion, the judge has done what the Tribunal of Commissioners declined to do in R(IB) 2/04. If they are merely intended to predict when the jurisdiction would normally be exercised, the judge has created the danger that her remarks will later be interpreted as restricting the tribunal’s jurisdiction. Moreover, again with respect, I disagree that the passage she quoted from CDLA/0884/2008 is not binding in law. The final sentence is a proposition of law and is binding. As I have said, when properly understood, it is unexceptional.

18.        In summary, these are my conclusions:

·       the tribunal has a discretion to consider issues that are not raised by the appeal;

·       it does not matter whether the discretion arises under section 12(8)(a) of the Social Security Act 1998 or independently;

·       the tribunal must exercise the discretion judicially;

·       the points made by Mr Commissioner Rowland are relevant to that exercise, as is the public interest. I would add this point. If an award is removed by the Secretary of State, the claimant has the right to appeal on fact to the First-tier Tribunal. But if it is removed by the First-tier Tribunal, there is no right of appeal on fact. Tribunals should bear that in mind;

·       if the tribunal decides to consider other issues, the parties are entitled to a fair hearing;

·       it is always good practice to explain why the tribunal exercised its discretion;

·       an explanation may be required as a matter of adequacy of reasons.

C.          Analysis – the fourth question

19.        In what circumstances will there be an error of law in the tribunal’s decision to exercise its jurisdiction?

20.        I have emphasised the distinction between duty and power. It is significant, because of the limited scope for finding an error of law in the decision to exercise a power. Those limits have been consistently and repeatedly emphasised by the courts. It is the nature of such decisions that it will often by permissible for a tribunal to decide either for or against exercising a power without being in error of law. There will only be an error if the tribunal approached the issue incorrectly or if its exercise was perverse. Lord Hoffmann gave a valuable warning in Piglowska v Piglowski [1999] 1 WLR 1360 at 1372:

‘An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself.’

That warning is valid generally. It is not limited to the use of ‘narrow textual analysis’.

D.          Application of the principles to this case

The grounds of appeal

21.        The claimant’s representative has argued that the tribunal ‘has not provided sufficient reasons for its decision to consider the already existing award which was not in dispute between the parties’ and cited paragraph 10 of CDLA/0884/2008 in support. So far, so good. The argument reflects the principle stated in that paragraph. However, the representative then argued that ‘there was nothing in the case papers which made an award of the middle rate of the care component clearly wrong’. This is a departure from CDLA/0884/2008. The issue under that decision is whether the reason why the tribunal investigated was clear. It may be appropriate to investigate even if the award is not ‘clearly wrong’. As the tribunal did not explain why it had decide to investigate the care component, the issue for me is: is it clear why the tribunal did so? In order to answer that question, I must look at the evidence before the tribunal.

The tribunal’s exercise of its discretion

22.        The reason why the tribunal exercised its discretion to investigate the award of the care component is clear from the state of the evidence. There was first the claimant’s own evidence in her 'renewal' claim pack. She set out the help that she needed, but repeatedly stated that the frequency with which she needed the help ‘varies’. She made only a few references to ‘daily’ help. Her comments also referred to variation in her difficulties. A significant number of her comments began with ‘when’. To put the matter beyond doubt, her concluding comments began: ‘I have good days, and bad days.’ From the care component section of the claim pack, it was by no means clear that she was entitled to the middle rate.

23.        In addition to the claim pack, the decision-maker had the claimant’s list of medications and a report from her GP. The report stated that the claimant’s ability to self care was not known and that she was aware of common dangers. That evidence took the matter no further than the claim pack. There was, finally, the claimant’s oral evidence and a letter from her GP. The claimant’s representative has relied particularly on that letter, arguing that the award could have been based on supervision in respect of falls and her mental state. It is correct that the award might have been based on supervision. But that is not the point. The issue is: is it clear why the tribunal investigated? It is not: was the award clearly wrong? In her claim pack, the claimant said that both her mental health and her Ménière’s disease, which could lead to falls, were variable. The former lasted for three to four months at a time and the latter for a week or so at a time. The GP’s letter for the tribunal did not mention falls and referred to variation in her depression. That evidence is not sufficient to show that the award was necessarily correct.

24.        On the evidence as a whole, it is clear why the tribunal considered the care component at the middle rate: the evidence was not sufficient to show that she was entitled.

E.          Disposal

25.        I accept the Secretary of State’s submission that the tribunal did not make an error of law and dismiss the appeal.