Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No. CDLA/636/2010

ADMINISTRATIVE APPEALS CHAMBER

 

Before Mr Justice Walker CP, Upper Tribunal Judges May QC and Bano

 

Decision: Our decision is to make no order on the reference.

 

 

REASONS FOR DECISION

 

Introduction

 

1. This case concerns the enforcement powers conferred on tribunals under the Tribunals, Courts and Enforcement Act 2007 (‘the 2007 Act’). The claimant (“Miss D”) appealed against a refusal of an award of disability living allowance. The FTT issued a direction requiring her general practitioner (“Doctor M”) to attend the adjourned hearing of Miss D’s appeal. Doctor M did not attend. The FTT has referred the matter to the Upper Tribunal with a view to exercise by the Upper Tribunal of its powers under s 25 of the 2007 Act. The case raises issues of general importance and for that reason a three-judge panel has been constituted.

 

Proceedings in the FTT

 

2. The Secretary of State refused to make an award of disability living allowance from 29 July 2009 on a renewal claim made by Miss D. She had previously been in receipt of the lower rate of mobility component and the middle rate of care component. At the first hearing of the appeal, on 27 October 2008, the chairman of the appeal tribunal (as it then was) directed Doctor M to supply a print-out of the claimant’s medical records and consultant’s letters since 2001. The letter enclosing this direction was wrongly addressed and Doctor M has stated that it never arrived. Correctly addressed reminder letters were sent on 13 January, 1 April and 16 April 2009. A fax was sent to a member of Doctor M’s staff on 6 March, and the GAPS print-out records that in the period up to and including 10 July 2009 there were repeated telephone calls to Doctor M’s surgery about the matter by tribunal staff. In a letter dated 4 May 2010 solicitors who have now been instructed by the Medical Defence Union on Doctor M’s behalf accept that the fax was received at the doctor’s surgery. They state that the claimant’s records were in fact printed out, but were not sent to the tribunal because of an unexplained administrative error by Doctor M’s staff. As to the various communications sent by the tribunal, it may be noted that the address on the letter of 30 October 2008 has been amended by hand to include a change in the post code and to add the town and county, and the road number has also been added in handwriting. The letter of 13 January had the correct address, but the wrong postcode.

 

3. On 16 July 2009 a district judge issued a “Directions Notice” (“the July notice”) on the tribunal’s own initiative under rule 16 of the Tribunal Procedure (First-tier Tribunal (Social Entitlement Chamber) Rules 2008 (‘the SEC Rules’). It directed that the appeal be listed for an oral hearing at a date and time to be notified to Doctor M. The remainder of the document was addressed to Doctor M. Paragraph 1 summoned him to attend the hearing. Paragraph 2 ordered Doctor M to produce “the following documents: - the medical details previously requested in the respect of your above named patient.” (sic) However, while the tribunal had intended that the date and time be filled in by tribunal staff, no date or time was specified. At the foot of the document was a warning:

“Failure to comply with this summons or order may lead to the matter being referred to the Upper Tribunal under rule 7(3) of the rules and section 25 of the Tribunals, Courts and Enforcement Act 2007.”

 

The July notice does not appear to have been sent to Doctor M until 12 August 2009. A covering letter of that date gave the location, date and time of the hearing. It stated that he had been summoned to attend the hearing, and it repeated the order for production of documents in the July notice. It concluded with a warning in similar terms to that in the July notice.

 

4. The July notice contained an address for Doctor M with the wrong post code and did not give the road number of Doctor M’s surgery. The covering letter of 12 August 2009 misspelt Doctor M’s name, giving the name of another doctor who practises nearby, and contained no indication of the address to which it was sent. Neither document complied with rule 16(2)(b) of the SEC Rules, which provides that a summons directed to a person who is not a party must “make provision for the person’s necessary expenses of attendance to be paid, and state who is to pay them”.

 

5. The appeal was finally heard on 1 October 2009. In accordance with her previous indication, Miss D did not attend the hearing. The tribunal nevertheless allowed her appeal and awarded her lower rate mobility component and middle rate care component for two years from 27 October 2008. In a separate decision the tribunal recorded that Doctor M had neither complied with the direction to produce the claimant’s medical records nor attended the hearing of the appeal. It referred the matter to the Upper Tribunal under rule 7(3) of the SEC Rules because:

“(Doctor M) has ignored the Summons and disobeyed the order of the Tribunal and we cannot find any explanation for his lack of response. This is a lack of professional behaviour that cannot go unmarked.”

 

On 18 February 2010 a regional tribunal judge directed that the matter should be referred to the Upper Tribunal. Upper Tribunal Judge Rowland gave directions on 8 April 2010, observing among other things that it is not at all clear why Doctor M was ordered to attend the adjourned hearing of the appeal.

 

6. The enforcement powers of tribunals prior to the passing of the 2007 Act were as haphazard and confused as many other features of the unreformed tribunal system described in the 2001 Leggatt report. We are concerned with a case arising in England and Wales. Here the Queen’s Bench Division of the High Court had power to punish for disobedience to an order of a tribunal, but only if the tribunal was a ‘court’ “exercising the judicial power of the state”, in accordance with section 19 of the Contempt of Court Act 1981-see Pickering v Liverpool Daily Post and Echo Newspapers Limited [1991] 2 AC 370 in which the House of Lords held a mental health tribunal to be a ‘court’ for these purposes. In some tribunals, notably industrial tribunals, disobedience to an order of the tribunal was punishable as a criminal offence, while tribunals under the Tribunals of Enquiry (Evidence) Act 1921 had power to certify that a person had been guilty of contempt, but the power to punish the contemnor was reserved to the High Court.

 

7. The uncertainty and difficulty of contempt proceedings under the old system resulted in an almost total lack of any effective sanctions for non-compliance with tribunal orders. The inclusion in the 2007 Act of provisions conferring on the Upper Tribunal, as a superior court of record, the same powers as the High Court to punish for disobedience to certain types of order was therefore a necessary and integral part of the new tribunal structure, designed to create a self-contained and effective system of administrative justice.

 

8. The Upper Tribunal’s powers, conferred by section 25 of the 2007 Act, are as follows:

 

“(1) In relation to the matters mentioned in subsection (2), the Upper Tribunal-

(a) has, in England and Wales or in Northern Ireland, the same powers, rights privileges and authority of the High Court, and

(b)   has in Scotland, the same powers, rights privileges and authority as the Court of Session.

 

(2) The matters are-

(a) the attendance and examination of witnesses,

(b) the production and inspection of documents, and

(c) all other matters incidental to the Upper Tribunal’s functions,

 

(3) Subsection (1) shall not be taken-

(a) to limit any power to make Tribunal Procedure Rules;

(b) to be limited by anything in Tribunal Procedure Rules other than an express limitation.

 

(4) A power, right, privilege or authority conferred in a territory by subsection (1) is available for purposes of proceedings in the Upper Tribunal that take place outside that territory (as well as for purposes of proceedings in the tribunal that take place within that territory).”

 

9. Section 22 gives to the Tribunal Procedure Committee power to make rules governing the practice and procedure to be followed in both the First-tier and Upper Tribunals, and paragraph 10 of Schedule 5 provides:

“(3) Rules may make provision, where the First-tier Tribunal has required a person-

(a) to attend at any place for the purpose of giving evidence,

(b) otherwise to make himself available to give evidence,

(c) to swear an oath in connection with the giving of evidence,

(d) to give evidence as a witness,

(e) to produce a document, or

(f) to facilitate the inspection of a document or any other thing (including any premises),

for the Upper Tribunal to deal with non-compliance with the requirement as though the requirement had been imposed by the Upper Tribunal.

(4) Rules may make provision for the payment of expenses and allowances to persons giving evidence, producing documents, or required to attend proceedings.”

 

10. Rule 7 of the SEC Rules provides as follows:

 

“(1) An irregularity resulting from a failure to comply with any requirement in these Rules, a practice direction or a direction, does not of itself render void the proceedings or any step taken in the proceedings.

(2) If a party has failed to comply with a requirement in these Rules, a practice direction or a direction, the Tribunal may take such action as it considers just, which may include-

(a) waiving the requirement;

(b) requiring the failure to be remedied;

(c) exercising its power under rule 8 (striking out a party’s case);or

(d) exercising its power under paragraph (3)

(3) The Tribunal may refer to the Upper Tribunal, and ask the Upper Tribunal to exercise its power under section 25 of the 2007 Act in relation to any failure by a person to comply with a requirement imposed by the Tribunal-

(a) to attend at any place for the purpose of giving evidence;

(b) otherwise to make themselves available to give evidence;

(c) to swear an oath in connection with the giving of evidence;

(d) to give evidence as a witness;

(e) to produce a document

(f) to facilitate the inspection of a document or any other thing (including any premises)”.

 

11. Upper Tribunal Rule 7 provides:

 

“(1) An irregularity resulting from a failure to comply with any requirement in these Rules, a practice direction or a direction, does not of itself render void the proceedings or any step taken in the proceedings.

(2) If a party has failed to comply with a requirement in these Rules, a practice direction or a direction, the Upper Tribunal may take such action as it considers just, which may include-

(a) waiving the requirement;

(b) requiring the failure to be remedied;

(c) exercising its power under rule 8 (striking out a party’s case);or

(d) except in mental health cases, restricting a party’s participation in the proceedings

(3) Paragraph (4) applies where the First-tier Tribunal has referred to the Upper Tribunal a failure by a person to comply with a requirement imposed by the First-tier Tribunal-

(a) to attend at any place for the purpose of giving evidence;

(b) other wise to make themselves available to give evidence;

(c) to swear an oath in connection with the giving of evidence;

(d) to give evidence as a witness;

(e) to produce a document

(f) to facilitate the inspection of a document or any other thing (including any premises).

(4) The Upper Tribunal may exercise its power under section 25 of the 2007 Act (supplementary powers of the Upper Tribunal) in relation to such non-compliance as if the requirement had been imposed by the Upper Tribunal.”

 

12. The powers of referral to the Upper Tribunal which have now been conferred on tribunals in order to aid them in ensuring compliance with their orders may have very serious consequences, including the deprivation of a person’s liberty. In England and Wales a sentence of two years’ imprisonment may be imposed - see sections 14 and 15 of the Contempt of Court Act 1981. Rule 7(1) of both the SEC Procedure Rules and the Upper Tribunal Procedure Rules provide that a failure to comply with any procedural requirement does not in itself invalidate the proceedings. In Nicholls v Nicholls [1997] 1 WLR 314 the Court of Appeal in England and Wales held that the power to rectify procedural defects under RSC Order 59 rule 10 enabled the court to overlook a procedural breach if the irregularity had caused the contemnor no prejudice or injustice. However, in its guidance (at page 327) the court held that, as committal orders involve the liberty of the subject, it is particularly important that the relevant rules are complied with.

 

13. The SEC Rules do not contain provisions regulating service of documents on persons who are not parties to the proceedings, but Rule 6(4) requires written notice of any direction to be sent to any person affected by the direction, and section 7 of the Interpretation Act 1978 only deems a document to be effectively served by post if it is properly addressed. These are fundamental points which must be borne in mind by tribunals. Even more fundamentally in the present case Dr M has told us, and we accept, that he did not receive the July notice. In the circumstances his failure to comply with that notice could not conceivably warrant the exercise of powers under section 25 of the 2007 Act.

 

14. That of itself is enough to dispose of this reference. We add some further observations because of the importance of the matter.

 

15. We have identified regrettable failures at the outset of communications with Dr M. When those communications did not achieve their object, the tribunal decided to require him to attend. That course is one which we view with considerable disquiet. In the event it was possible to proceed without the records, and that possibility should have been investigated before deciding to require the doctor to attend. As Judge Rowland observed in his directions, it is not at all clear why Doctor M was ordered to attend the adjourned hearing of the appeal. The directions on 27 October 2008 were for Doctor M to provide a print-out of the claimant’s medical records and consultants’ letters. There is no suggestion that Doctor M needed to give oral evidence at the hearing and, in any case, the appeal was finally determined without either the medical records or Doctor M’s attendance. An order to compel a practising doctor to attend a hearing should not be made without a very compelling reason for doing so, and in this case there is no indication of why it was considered that an order for Doctor M’s attendance at the tribunal was a necessary and proportionate response to his apparent failure to comply with the directions given at the first hearing of the appeal.

 

16. Turning to the decision to issue the July notice, although the tribunal found that Doctor M had “ignored the summons and disobeyed the order of the tribunal”, a cursory examination of the letter to Doctor M of 12 August 2009 would have shown that it misspelt his name and contained no indication of the address to which it was sent. The tribunal’s finding that Doctor M had “ignored the summons” could only be justified on the basis that the letter had actually been delivered to Doctor M’s address. That was a matter which should have been investigated before the tribunal found Doctor M guilty of “a lack of professional behaviour”, and decided to refer the matter to the Upper Tribunal. Indeed, even if that investigation had established that Dr M had received the July notice, the tribunal would need to consider any explanation offered by the doctor and assess whether in the light of that explanation the matter did indeed warrant a reference to the Upper Tribunal.

 

17. Taking care to follow proper procedures is thus of vital importance before a tribunal decides to make a reference. Proper procedures must also be followed once such a decision is made. Article 2 of the First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008 provides for the Senior President to determine the number of members of a tribunal who are to determine any matter and the qualifications which they must have, and by paragraph 15(4) of Schedule 4 to the TCEA 2007 that power extends to authorising the Senior President to determine that a matter should be decided by a Chamber President. The Senior President has exercised his powers in relation to the Social Entitlement Chamber by means of a Practice Statement applicable to cases on or after 3 November 2008, paragraph 10 of which provides:

 

“A decision, including a decision to give a direction or make an order, made under, or in accordance with, rules 5 to 9, 11, 14, to 19, 25(3), 30, 32, 36, 37 or 41 of the 2008 Rules may be made by a Tribunal Judge, except that a decision made under, or in accordance, with rule 7(3) or rule 5(3)(b) to treat a case as a lead case (whether in accordance with rule 18 (lead cases) or otherwise) of the 2008 Rules must be made by the Chamber President.”

 

The reference under rule 7(3) in this case was made after 3 November 2008, so that under paragraph 10 of the Practice Statement it was reserved to the Chamber President. Paragraph 9 of the Practice Statement confers power on the Chamber President to delegate his powers under rule 7(3) to a regional tribunal judge, but it seems that no delegation has in fact been made. The failure to comply with paragraph 10 of the Practice Statement deprived Doctor M of the opportunity for the Chamber President to consider whether, in the light of the matters to which we have referred, a reference to the Upper Tribunal should be made.

 

18. There was in fact a breach of rule 16(2)(b) of the SEC Rules in this case because the summons did not make any provision for the payment of Doctor M’s expenses. A witness such as a doctor who is ordered to attend a hearing may clearly incur very considerable expenses.

 

19. All these points serve to emphasise that procedures are not followed merely for their own sake. Tribunals must make clear in plain English what things must be done. They must also make clear the possible consequences of any failure to do what the tribunal has required. In order to make clear what may happen if the necessary things are not done we think it highly desirable, at the very least, that a statement under rule 16(4)(b) of the SEC Rules of the consequences of a failure to comply with a summons or citation should spell out the penalties that may be imposed for failure to comply. In England and Wales these include imprisonment, a fine, and sequestration of assets.

 

20. The present case is the second occasion on which the power of reference for enforcement purposes has been considered by the Upper Tribunal. In MR v CMEC (No. 1) [2009] UKAAC 285 the Upper Tribunal sitting in Scotland was concerned with a failure to comply with an order by the FTT for, among other things, production of documents. In the circumstances of that case the Upper Tribunal concluded that prior to making any order on the reference, and for the purpose of the proper and effective exercise of its powers in relation to the reference, it should make its own order identifying particular documents to be produced. That was not because the exercise of the Upper Tribunal’s powers was in any way conditional upon the making of a further order: it was simply because that course was, as a matter of discretion, the course which the Upper Tribunal considered appropriate in all the circumstances.

 

21. In MR v CMEC (No. 1) after the second respondent (the absent parent) had partially complied with the directions given by the Upper Tribunal, the Presiding Judge gave directions for a further hearing. In its reasons for discharging the reference following that hearing (at [2010] UKUT 38 (AAC) para. 3), the Upper Tribunal said:

 

“We took the view that the matter before us at (the second hearing) was one of potential contempt of court and that that was an issue only between the Upper Tribunal and the second respondent. Thus, no submissions from the appellant nor the second respondent were, in our view appropriate and we did not invite any.”

 

In his directions Judge Rowland directed the Secretary of State to make a written submission as to whether in view of what was said in MR v CMEC the Secretary of State had the right to make any representations in this case.

 

22. Following Judge Rowland’s directions, a letter was received from Doctor M’s Practice Manager apologising both to the tribunal and to the claimant and setting out steps which had been taken to prevent a recurrence of what occurred in this case. On 6 May 2010 a Registrar gave a direction indicating that in view of the Practice Manager’s letter we were not minded to seek further information from Doctor M. However the letter from Doctor M’s solicitors of 4 May, containing a detailed explanation and apology, was received on the same day as the Registrar’s direction. The solicitor’s letter was accompanied by a personal letter from Doctor M, expressing his deep regret for what had happened and again offering an unqualified apology to the tribunal and to the claimant. A copy of that correspondence was sent to the Secretary of State’s representative under cover of a direction dated 12 May 2010 so that any observations on it could be included in the Secretary of State’s submission.

 

23. In a submission dated 11 May 2010 the Secretary of State’s representative asked that we reserve for the future the question of whether a party other than the alleged contemnor can make representations in a section 25 case, observing that it would be more appropriate for that issue to be considered and decided in a case where a party had substantive representations to make. In a further submission dated 13 May 2010, in response to the direction of 12 May 2010, the Secretary of State’s representative indicated that the Secretary of State did not wish to play a further part in these proceedings.

 

24. In M v P (Contempt of Court: Committal Order) [1993] Fam 167, Lord Donaldson held:

 

“In all contempt cases, justice requires the court to take account of the interests of at least three categories of persons, namely, (a) the contemnor (b) the ‘victim’ of the contempt and (c) other users of the court for whom the maintenance of the authority of the court is of supreme importance.”

 

Although we consider that that is an important principle, we do not need to decide this question in the present case. Guidance by the Upper Tribunal on how the principle should be applied in individual cases should await a case in which the issue actually arises.

 

25. For those reasons, our decision is as set out above.

 

 

 

 

Mr Justice Walker CP

 

 

 

Upper Tribunal Judge Douglas May QC

 

 

 

Upper Tribunal Judge Andrew Bano

 

 

 

(Signed on the original)