Upper Tribunal (Administrative Appeals Chamber)

DECISION OF THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

The Secretary of State's appeal to the Upper Tribunal is allowed. The decision of the Swindon First-tier Tribunal dated 22 January 2010 involved an error on a point of law, for the reason given below, and is set aside. The case is remitted to a tribunal within the Social Entitlement Chamber of the First-tier Tribunal for reconsideration in accordance with the directions given in paragraph 14 below and with any further directions that might be given by a district tribunal judge (Tribunals, Courts and Enforcement Act 2007, section 12(2)(b)(i)).

REASONS FOR DECISION

1. The tribunal of 22 January 2010 was concerned with the decision dated 11 May 2009 disallowing the claim for disability living allowance (DLA) from and including 25 April 2009. The tribunal allowed the claimant's appeal to the extent of awarding him the lowest rate of the care component, on the main meal test, for the period from 25 April 2009 to 24 April 2014. I gave the Secretary of State for Work and Pensions permission to appeal against that decision, not on the basis of the challenges to the reasoning of the tribunal on questions of substance (which I come back to briefly below), but on another ground.

2. The point arises in this way. The record of proceedings completed by the tribunal judge who presided on 22 January 2010, after several pages of notes of the evidence and submissions and recording that the tribunal adjourned to make a decision at 3.28 pm, continued "Maj. Dec. Main Meal 5yrs. only". The decision notice signed by the tribunal judge on 22 January 2010 appears to have been printed in advance on a computer because many details, such as the date and location and the names of the members, were printed out, but the claimant's name etc and the actual decision were entered by striking out printed words in pen and by writing things in. The pre-printed part of the notice said that it was of the unanimous decision of the tribunal. The word "unanimous" was not struck out in pen. The statement of reasons signed by the tribunal judge on 9 March 2010 said nothing about whether the decision had been unanimous or by a majority.

3. A First-tier Tribunal consisting of more than one member is allowed to reach a decision by a majority by virtue of article 8 of the First-Tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008:

"8. If the decision of the tribunal is not unanimous, the decision of the majority is the decision of the tribunal; and the presiding member has a casting vote if the votes are equally divided."

4. Rule 33 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 merely requires a tribunal to provide a decision notice stating its decision, plus notification of the right to apply for a statement of reasons and of any right of appeal. Regulation 53(5) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, in force down to 2 November 2008 in relation to appeal tribunals in social security and child support cases, had provided:

"(5) If the decision is not unanimous, the decision notice specified in paragraph (1) shall record that one of the members dissented and the statement of reasons referred to in paragraph (4) shall include the reasons given by the dissenting member for dissenting."

5. When giving permission to appeal I said that:

"the question ought to be answered at the level of the Upper Tribunal whether under the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 it is an error of law for a tribunal's decision notice and statement of reasons not to state that a decision is by a majority and/or for the statement of reasons to give the reasons of the minority. In my preliminary and provisional view the note at the end of the chairman's record of proceedings ..., which appears to have been made at the moment of the tribunal as a whole reaching its decision, is particularly cogent evidence that the decision was not unanimous, despite the failure to amend the printed form of the decision notice signed on the same day."

6. The submission dated 28 July 2010 by the current representative of the Secretary of State included the following, after referring to the differences between the Decisions and Appeals Regulations and the legislation in force from 3 November 2008:

"4. I therefore submit that there is nothing to suggest that there is a duty to record that the decision was reached only by a majority and record the reasons of the dissenting member. However it is my submission that given that the FtT must provide a written statement of reasons if a party makes and application for one (rule 34(5) of the FtT Rules 2008), it is arguable that a FtT's statement of reasons that fails to include such information is inadequate and therefore the FtT will have erred in law for that reason. I submit that without that vital part of the FtT's reasoning, the parties are unable to see why the minority view was not persuasive or are not made aware that there is a flaw in the reasoning."

In the reply that seems to have come from the claimant personally and not his representative he did not grapple with that point but argued in support of his qualification for the lowest rate of the care component.

7. On further reflection I now think that the question I posed when giving permission to appeal was put in too general terms. It seems to me that the problem has to be approached in stages. That leads me not to accept the full width of the Secretary of State's submission, while agreeing that there was an error of law in the particular circumstances of the present case.

8. The first stage is whether a tribunal within the Social Entitlement Chamber is obliged to state in the notice of its decision that it has been made by a majority, rather than being unanimous. In my judgment, the answer has to be, as submitted on behalf of the Secretary of State, that there is no such obligation. The change in the terms of the legislation from those in operation for social security and child support cases before 3 November 2008 is compelling. Nor is it by any means a universal feature of the decisions of courts and tribunals in general to state whether a decision has been reached unanimously or by a majority. The Court of Justice of the European Union (the ECJ), the Privy Council and, I think, the Court of Appeal (Criminal Division) do not do so. There are other tribunals which do not do so. It is legitimate and not inconsistent with any fundamental principles of natural justice or a fair trial for the judgment to be made that the interests of having a final conclusion on the issues in dispute outweigh the arguments for disclosure of more information. However, it is important to note that the absence of a legal obligation to state whether a decision is unanimous or by a majority does not prevent either a particular tribunal or a Chamber of the First-tier Tribunal or some constituent part of such a Chamber deciding that such information will be given.

9. The second stage depends on what has actually been done at the first stage. If the tribunal in question, under no obligation to state whether the decision is unanimous or by a majority, has not done so in its decision notice, I cannot see how it could be under an obligation when giving a statement of reasons to give that information and to state the reasoning of the minority. That would undermine the conclusion in the previous paragraph and introduce by the back door the very obligation that had been rejected there. Although I can see the force of the considerations put forward at the end of paragraph 4 of the Secretary of State's submission of 28 July 2010, especially where the tribunal had only two members and the presiding member had exercised the casting vote, that can only be an argument for amending the Procedure Rules, rather than for interpreting them as suggested.

10. However, if the tribunal in question has said on the decision notice that the decision was unanimous or by a majority, that statement should be accurate. If the decision notice accurately records that the decision was by a majority and a statement of reasons is prepared, at least a brief statement of the reasons for the dissent of the minority member should be given there. Even though the obligation under rule 34(2) and (3) of the Procedure Rules is, on request, to give reasons for the decision, and the decision of the majority is the decision of the tribunal, it seems to me in these circumstances implicit in the basic principle of enabling the losing party to understand why he or she has lost that there should be some statement of in what respects the minority member would have decided in his or her favour. That can sometimes point up and clarify where the majority found the losing party's case wanting. Sometimes it can expose a potential flaw in the majority's reasoning. The same approach must apply where the decision was in fact by a majority, but the decision notice stated that it was unanimous, with perhaps an additional obligation to acknowledge the discrepancy in the documents.

11. Applying those principles in the present case produces the following result. Although the tribunal's decision was by a majority, the decision notice stated that it was unanimous. That is on its face an error of law. However, it is an error that in my view could have been cured or rendered non-material if the subsequent statement of reasons had acknowledged the decision notice as mistaken, correctly set out that the decision was by a majority and given an adequate statement of the reasons of the minority member. Whether or not there was a formal correction of the decision notice (as would be desirable, and could cure the problem in cases of genuine mistake where no statement of reasons is produced) there would have then been an implicit correction. I do not think that the inconsistency between the original decision notice and the statement of reasons would then have been such as to leave sufficient sense of unfairness as to require the setting aside of the decision. But that did not happen here. The statement of reasons did nothing to acknowledge or correct the inaccuracy of the decision notice. Accordingly, the decision involved an error of law.

12. I have considered whether the error could be said not to be material or not to justify setting aside the decision under the discretion in section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 when the losing party was the Secretary of State. It could be said that the representatives of the Secretary of State would not be disadvantaged in any real sense in their ability to understand why a decision had gone against them by not knowing that it was a majority decision or what the reasons of the minority member were. However, it seems to me that what is sauce for the goose must be sauce for the gander. The important point is that if a tribunal chooses to say that the decision is unanimous, there is an error of law if that is not so and there is no adequate correction, without the losing party having to show any further disadvantage.

13. For that reason, the decision of the tribunal of 22 January 2010 must be set aside as involving an error of law and the case must be sent back to a new tribunal for rehearing. In his reply dated 13 August 2010 the claimant wrote that I believed that his inability to prepare a cooked main meal if he has the ingredients is genuine. That is not what I said when giving the Secretary of State permission to appeal on the “majority decision” point. What I said was that the tribunal of 22 January 2010 had probably been entitled on the evidence to conclude that the claimant was entitled to the lowest rate of the care component on the main meal test and that I did not think that its reasoning was unsound or involved taking into account legally irrelevant considerations. That was not an expression of any personal opinion of my own about what the result should have been or an exclusion of some other equally reasonable tribunal coming to a different conclusion on the same or similar evidence. That is the basis on which the claimant will have to approach the rehearing. The new tribunal will start from scratch again.

14. The claimant's appeal against the Secretary of State's decision of 11 May 2009 is remitted to a First-tier Tribunal for reconsideration in accordance with the following directions. No-one who was a member of the tribunal of 22 January 2010 is to be a member of the new tribunal that reconsiders the claimant's appeal. There must be a complete rehearing of the appeal on the evidence produced and submissions made to the new tribunal, which will not be bound in any way by any findings made or conclusions expressed by the tribunal of 22 January 2010. I do not need to give any directions of law about the conditions of entitlement to DLA. The evaluation of all the evidence will be entirely a matter for the judgment of the members of the new tribunal. The decision on the facts in this case is still open.

(Signed on original):  J Mesher

  Judge of the Upper Tribunal

Date:  22 October 2010