Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No.  CE/841/2010

ADMINISTRATIVE APPEALS CHAMBER

 

Before Judge S M Lane

 

 

This decision is made under section 12(1) and (2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007.

 

The decision of the tribunal heard on 4/12/09 under reference 227/09/04480 is SET ASIDE because its making involved errors on points of law.

 

The appeal is REMITTED to a fully reconstituted tribunal for a complete rehearing.

 

REASONS FOR DECISION

 

1       The appellant brings this appeal with my permission.  Her representative submitted that the First-tier Tribunal’s decision to find that the appellant no longer had a limited capability for work was erroneous in law on several grounds.  These included failures (i) to adjourn for further medical evidence; (ii) to exercise its discretion judicially in determining the appeal as a paper case; (iii) to consider the descriptors in activity 16 of the Limited Capability for Work Assessment (LCWA) under Schedule 2 of the Employment and Support Allowance Regulations 2008 properly; and (iii) to consider other activities in the LCWA and evidence relating to them specifically raised by the appellant.

 

2       While I am not satisfied that the tribunal erred in law in determining the case on the papers as requested by the appellant and in not adjourning for further medical evidence, I am satisfied that the tribunal made material errors of law in relation to the remaining grounds and that the decision must be set aside because of them. 

 

Adjourning for further medical evidence

 

3       The submission that the tribunal erred in failing to consider whether to adjourn for further medical evidence is not accepted. 

 

4       The factual and legal background:  The appellant suffers with migraine headaches amongst other problems.  She was required to undergo the LCWA and score enough points to pass it in order to remain incapable of work and thereby entitled to Employment and Support Allowance (‘ESA’).  Scoring points depends on whether the claimant falls within descriptors set out in the activities in Schedule 2 of the Regulations.  Under activity 11, a claimant can be awarded points if he suffers involuntary episodes of lost or altered consciousness, resulting in significantly disrupted awareness or concentration.  There was no evidence that this appellant suffered from anything other than common migraine.  Lost or altered consciousness would therefore be unusual, as this specialist tribunal would know.  The appellant herself stated in her self-assessment questionnaire that she had no trouble with consciousness.  In these circumstances, the tribunal was not obliged to speculate on the unlikely, let alone to consider adjourning for evidence on such a long shot. 

 

Rule 27, Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008

 

5       Whether the tribunal failed to exercise its judicial power to proceed by way of a decision on the papers is more complex.  Rule 27(1) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 requires a First-tier Tribunal to hold an oral hearing of a matter disposing of the proceedings unless (a) the parties have consented to, or not objected to, the matter being decided without a hearing; and (b) the tribunal considers that it is able to decide the matter without a hearing.  Under rule 1(3), a hearing means an oral hearing, so that there is technically no hearing when a tribunal decides a case on the papers.  For ease of reference, I will use the term ‘paper hearing’.

 

6       The appellant in this case requested a paper hearing.  She will have been sent an enquiry form for her appeal and guidance notes on how to fill it out.  The guidance leaflet accompanying explains:

 

Question 2. Do you want a hearing?

A “hearing” means meeting [sic] the Tribunal, so that you and your representative, if you have one, can put your case in person. The advantage of a hearing is that you have an opportunity to speak to the Tribunal and the Tribunal has an opportunity to learn more about your case than it could gather from the appeal papers alone. Most people who appeal opt for a hearing. Statistically, more than twice as many appeals are successful with a hearing.

 

The enquiry form also tells the appellant that further evidence may be sent to the tribunal for its consideration.  Armed with this information, a competent adult can make an informed choice about opting for an oral or paper hearing.  That autonomous choice should be respected unless there are particular circumstances which would make it unfair to proceed.

 

7       Evidential problems will not necessarily make it appropriate to adjourn for an oral hearing or for further evidence where the appellant has opted for a paper hearing.  A tribunal should in theory be able to decide an appeal by the application of standard principles of evidence.  Parties to tribunal proceedings have a duty to cooperate with the tribunal: Kerr v Department for Social Development [2004] UKHL 23, per Lady Hale of Richmond [62]; rule 2(4) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008.  In Kerr, Lady Hale stated

 

‘As Commissioner Henty put it in CIS/5321/1998, “a claimant must to the best of his or her ability give such information to the AO[1] as he reasonably can, in default of which a contrary inference can always be drawn." The same should apply to information which the department can reasonably be expected to discover for itself.  If there is still ignorance about a relevant matter then generally speaking it should be determined against the one who has not done all they reasonably could to discover it.’

 

The principle in Kerr should mean that it is rarely be necessary for a tribunal to resort to the notion of the burden of proof, but there is no reason why it should not do so if inconsistencies and ambiguities in the evidence remain at the end of the day. 

 

8       The fact that a tribunal could come to a decision on the papers by using these legal principles does not mean that they would be right to do so.  Tribunals have always had a duty to deal with cases fairly and justly; and this is reinforced by the overriding objective set out in rule 2(1) of the Tribunal Procedure (First-tier Tribunal)(Social Entitlement Chamber) Rules 2008.  Each set of procedural rules governing the various tribunals operating under the Tribunals, Courts and Enforcement Act 2007 contains this overriding objective. 

 

9       Rule 2(3) reinforces the overriding objective by providing that: 

 

(3)  ‘The tribunal must seek to give effect to the overriding objective when it –

(a)  exercises any power under these Rules; or

(b)  interprets any rule or practice direction.’ 

 

It follows that the power to hear the appeal on the papers should only be exercised where it is fair and just to do so.

 

10   What is fair may vary with the jurisdiction of the tribunal concerned.  In the Social Entitlement Chamber, where claimants tend to be unrepresented and often disadvantaged in a variety of ways, it may well be necessary for a tribunal to override an appellant’s choice in order to do justice.  This may occur, for example, where the tribunal notices (or should have noticed) a material point which could affect the outcome of the case which a layman would not appreciate, or where the tribunal believes the appellant may have evidence whose significance he does not understand.  In other types of tribunal where appellants are represented, a less interventionist approach is likely to prevail. 

 

11   Whether exercising a power or a discretion, the tribunal must do so consciously and, in terms of the Rules, consider not only the requirements of the particular rule but also the overriding objective under rule 2.  That objective is fleshed out in rule 2(2) which provides a non-exhaustive list of factors included in the broad concept of dealing fairly with a case: 

 

(2) Dealing with a case fairly and justly includes—

(a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties;

(b) avoiding unnecessary formality and seeking flexibility in the proceedings;

(c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;

(d) using any special expertise of the Tribunal effectively; and

(e) avoiding delay, so far as compatible with proper consideration of the issues.

 

 

These factors are not, however, to be seen as a shibboleth by which fairness and justice are inescapably judged. 

 

12   In this appeal, there was evidence that the tribunal did consider whether it was appropriate to proceed on the papers, as can be seen in the signed declaration on the pro-forma Record of Proceedings for paper cases used at the time the appeal was heard.  This states:

 

‘I am satisfied that that it is proper to proceed to decide the appeal on the papers’. 

 

The pro-forma was produced for the purposes of regulation 39(5) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999) which applied to the hearing of paper cases before the new procedure rules came into force on 3 November 2008.  There are differences between the old regulation and rule 27.  As the appellant’s representative pointed out, under regulation 39(5) the decision whether to proceed with a paper hearing was for the tribunal judge alone whereas under rule 27 the decision is for the tribunal as a whole.  In practice, however, a tribunal judge would take the decision whether or not to proceed after consultation with the other tribunal members.  In these circumstances, it seems to me that the tribunal judge’s declaration is, for all intents and purposes, a declaration relating to the tribunal as a whole.  Another difference is that under the old regulation the question was whether it was ‘proper’ to proceed whereas under the new rule the question is whether the tribunal is able to decide the matter without a hearing.  But the gist is the same:  can the appeal be decided properly, or in other words, fairly and justly, on the papers?  The signed declaration shows that the tribunal applied its mind to that question.  

 

13. The First-tier Tribunal of the Social Entitlement Chamber abandoned the use of a Record of Proceedings for paper hearings in April 2010.  Since then, there is nothing to show that a tribunal which conducts a paper hearing has addressed its mind to the relevant rule or the overriding objective unless the tribunal judge issues a Statement of Reasons which explains this.   

 

14.  The Tribunal Procedure (First-tier Tribunal)(Social Entitlement Chamber) Rules 2008 have not changed a tribunal’s duty to give adequate reasons for its decision.  A failure to explain expressly (or impliedly) why a discretion was exercised in a particular way may, therefore, involve an error of law. This would leave the tribunal’s reasons open to attack for inadequacy.  A bald statement that ‘the tribunal have considered the overriding objective in deciding to proceed on the papers’ is unlikely to be enough if there were obvious factors which pointed the other way.  The tribunal would then need to do more to show how it balanced the factors in deciding to go ahead. 

 

15.  Whether the lack of reasons on this issue would be an error of sufficient gravity to warrant setting the decision aside would depend on all the circumstances of the appeal.  The error might be seen as immaterial if any tribunal acting rationally would have heard the case on the papers.  Moreover, section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 does not require the Upper Tribunal to set aside a decision of the First-tier Tribunal, even if there is an error of law. 

 

16.  In the general run of cases involving paper hearings, there may be nothing in the factors in rule 2(2) to suggest to a fair-minded tribunal that the appellant’s election should not prevail. 

 

17.  I consider that to be the case here.  It was not enough that the appellant was a shy person who did not like meeting new people.  She was not unable to do so, as the tribunal pointed out, as shown by her attendance at the medical examination centre for her assessment.  This was simply not enough to indicate that it would not be fair to comply with her choice. 

 

18.  A detailed consideration of the individual factors in rule 2(2) would not have taken the matter any further.  In this appeal, as in many cases where the appellant opts for a paper hearing, the factors are as arguable one way as the other.  While it might be argued, for example, that adjourning for an oral hearing would have been flexible and have led to greater participation, it could be said with greater justification that, given the appellant’s election, it would have imposed unwanted formality and a level of participation she specifically wished to avoid.  In respect of factors such as dealing proportionately with a case and avoiding delay, the arguments on either side may well be standard, as they were here:  adjournment inevitably causes delay, adds costs, and wastes judicial time.  It offends against the principle that each party is as entitled as the other to have his cause determined expeditiously.  Determining what is fair and just, therefore, is not simply an exercise in totting up the factors in rule 2(2).  The decision will often be one of impression in which the appellant's informed choice is a most powerful consideration. 

 

19.  There will, of course, be cases such as M H v Pembrokeshire CC (HB) [2010] UKUT (AAC) 28 where the need for an adjournment will be clear.  Judge Jacobs, who set aside the tribunal’s decision in that case because it failed to give sufficient reasons for conducting a paper hearing rather than adjourning, held that in deciding how to proceed the tribunal must apply the overriding objective and consider any factor relevant to the fairness and justice of the way it deals with the case [14].  That is plainly right. 

 

20.  The facts of that case were a far cry from the one in this appeal.  The appellant, who was a young man with ADHD and concentration problems, required help from his mother when dealing with officialdom.  His initial claim for Housing Benefit/Council Tax Benefit was rejected by the local authority as defective because he did not provide all of the required information.  When he subsequently made a further claim, he requested that it be backdated.  To succeed, he had to show that he had good cause for his delay in claiming.  He provided a letter from his mother which explained that she was too ill to assist him with the earlier claim and he explained that he had not received a number of letters sent by the local authority earlier.  The local authority refused to backdate his claim, as did the tribunal to which he appealed.  One of the reasons the tribunal gave was that the appellant had not provided medical evidence to show that he suffered from conditions which affected his ability to claim promptly.  Given the appellant’s youth, the difficulties confirmed by his mother and the obvious possibility that this unrepresented appellant would not have realised that something more formal than a note from his mum might be required, Judge Jacobs considered that the only appropriate course of action for the tribunal was to adjourn for the missing medical evidence.  The tribunal had not done so and had not provided sufficient reasons for exercising its discretion to proceed on the papers.  It neither exercised its inquisitorial function properly nor explained how it exercised its judicial discretion.

 

21.  Judge Jacobs illustrated how each of the factors in rule 2(2)(b) might be applied, but the caveat to the principle is clear:  the tribunal must consider any factor relevant to the fairness and justice of the way it deals with the case.  Not every factor will be relevant in every case.

 

Errors in applying the descriptors

 

22.  I am satisfied that the tribunal failed to deal with activity 16 adequately.  The test is whether the claimant cannot, due to cognitive impairment or a severe disorder of mood, initiate or sustain (a) any personal action; or cannot sustain personal action without verbal prompting given by another person in his presence either (b) daily, (c) for the majority of the time, or (d) without frequent verbal prompting.  The tribunal misdirected itself by considering whether she could perform activities without the support or assistance of another person. This is simply the wrong test.  It also failed to take account of the appellant’s evidence as given in the ESA50.  The appellant is entitled to know why her evidence has been rejected. 

 

23.  The tribunal failed to deal adequately with activity 19 (coping with social situations).  It makes no reference to the appellant’s evidence and why it rejected it as not satisfying the requirements of any of the descriptors. 

 

24.  The tribunal failed to deal with activity 21 at all, though the appellant raised it in her ESA50. 

 

25.  Finally, I would draw the parties’ and the tribunal’s attention to the correct test for activity 15.  To score points on the descriptors for this activity, the appellant must be unable successfully to complete everyday tasks within certain parameters.  The descriptors do not concern a lack of motivation to begin tasks: CE/406/2010.  Lack of motivation is, however, relevant to the descriptors for activity 16.  Activities 15 and 16 concern discrete aspects of mental functioning. 

 

26. I am not in a position to substitute my own decision.  The appeal is accordingly remitted to the First-tier Tribunal for a complete rehearing by a fresh tribunal. 

 

 

[Signed on original] S M Lane

Judge of the Upper Tribunal

[Date] 2 December 2010