DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

The DECISION of the Upper Tribunal is to allow the appeal by the appellant.

 

The decision of the First-tier Tribunal dated 16 April 2009 under file reference 003/08/01577 involves an error on a point of law.

 

The Upper Tribunal is not in a position to re-make the decision under appeal. It therefore follows that the appellant’s appeal against the Secretary of State’s decision dated 27 July 2008 is remitted to be re-heard by a different First-tier Tribunal, subject to the Directions below. I also refuse the request for an oral hearing of the appeal before the Upper Tribunal.

 

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

DIRECTIONS

 

The following directions apply to the re-hearing:

 

(1) The re-hearing will be at an oral hearing.

 

(2) The new First-tier Tribunal should not involve any tribunal judge or medical member who was a member of either the tribunal considering this appeal at the adjourned hearing on 11 December 2008 or at the final hearing on 16 April 2009.

 

(3) The new First-tier Tribunal should also not involve the tribunal judge who is the uncle of the appellant’s representative (a judge who has not been involved in considering the appeal to date).

 

(4) The appellant is reminded that the tribunal can only deal with the appeal as at the date of the original decision under appeal (namely 27 July 2008).

 

(5) If the appellant has any further written evidence to put before the tribunal, in particular medical evidence, this should be sent to the tribunal within one month of the issue of this decision. Any such further evidence will have to relate to the circumstances as they were at the date of the original decision of the Secretary of State under appeal (see Direction (4) above).

 

(6) A copy of the written submission to the Upper Tribunal dated 19 January 2010 by Mr R J Atkinson, on behalf of the Secretary of State (pages 248-251 of the Upper Tribunal bundle), should be included in the papers for the First-tier Tribunal that re-hears this appeal.

 

(7) The new First-tier Tribunal must consider all the evidence afresh and is not bound in any way by the decision of the previous tribunal. Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome to the previous tribunal.

 

These Directions are all subject to any later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal.

REASONS FOR DECISION

 

The Upper Tribunal’s decision in summary

 

1. The appellant’s appeal to the Upper Tribunal is allowed. The decision of the First-tier Tribunal dated 16 April 2009 under file reference 003/08/01577 involves an error on a point of law and is set aside. The First-tier Tribunal’s decision is set aside for two reasons.

 

2. The first reason is that the tribunal failed to make sufficient findings of fact and failed to give adequate reasons for preferring the report of the examining medical practitioner (EMP) to the expert medical reports provided on behalf of the appellant.

 

3. The second reason is that there was a breach of natural justice in terms of a real risk of perceived bias in terms of the composition of the tribunal. However, for the reasons that follow, I do not accept all the arguments put forward by the appellant’s representative about alleged bias on the part of the tribunal.

 

4. The case now needs to be reheard by a new First-tier Tribunal. The appellant also requests an oral hearing of the appeal before the Upper Tribunal. I refuse that application as the matter can be dealt with fairly and justly (and indeed more expeditiously) on the papers. The time and place for an oral hearing is at the re-hearing before the First-tier Tribunal. Crucially, that tribunal (unlike the Upper Tribunal) includes a medical member.

 

The background to the appeal to the First-tier Tribunal

 

5. I deal first, and shortly, with the relevant circumstances other than the allegation of bias. The appellant is a gentleman now aged 51. He was the victim of a vicious assault in 2001 which left him with severe head injuries and mental health problems. A decision maker accepted that he was incapable of work and entitled to incapacity benefit with effect from 12 November 2001.

 

6. In 2005 the appellant’s incapacity benefit was withdrawn but he subsequently succeeded at a hearing before an appeal tribunal, which reinstated benefit. In July 2006, on further review, the appellant was seen by a doctor on behalf of the Secretary of State. On that occasion the doctor abandoned the examination, noting that the appellant became extremely distressed during the interview. He advised that the appellant suffered from a severe mental illness and should be regarded as falling into an exempt category.

 

7. In March 2008 the appellant completed a new IB50 questionnaire. He explained that he had suffered brain damage and experienced post-concussional syndrome as a result of the 2001 assault. He added that in his view he remained in an exempt category.

 

8. On 26 June 2008 the appellant underwent a fresh medical examination. The EMP on that occasion reported diagnoses of a neurological problem, anxiety and depression. However, his overall conclusion was that the appellant’s mental health condition was “very mild” and that the impact on day to day activities was “minimal”.

 

9. Following that examination, a decision maker concluded on 27 July 2008 that the appellant scored nil points on the physical descriptors and just 2 mental health points. She accordingly decided that the appellant was capable of work and was no longer entitled to incapacity benefit.

10. The appellant lodged an appeal, arguing that his condition had not changed in six years and was the same as at the time of the previous appeal and the previous medical when he had been found to be exempt from the personal capability assessment. A tribunal held an initial hearing on 11 December 2008 but sensibly adjourned for sight of further medical reports.

 

11. A considerable body of medical evidence from the appellant’s GP and specialists was then produced, along with some documentation relating to the appellant’s claim under the criminal injuries compensation scheme (“the CICA claim”). The medical evidence included reports from: (1) Dr M, a consultant clinical neuropsychologist (dated 24 July 2002); (2) Dr P, a consultant psychiatrist (dated 14 February 2005), which had been prepared for the previous incapacity benefit appeal; and (3) Dr K, another consultant psychiatrist (dated 9 December 2008), which had been prepared for the present appeal. The appellant’s representative, Ms A, also submitted a lengthy submission drawing attention to various aspects of these reports.

 

The First-tier Tribunal’s decision

 

12. The First-tier Tribunal, comprising Judge B and Dr W, heard the appeal on 16 April 2009. The appellant attended but without his representative. The tribunal’s decision was to dismiss the appeal and to confirm the Secretary of State’s decision, albeit that one further mental health descriptor was awarded, making a score of 3 points overall. The tribunal judge, Judge B, subsequently issued a Statement of Reasons for the tribunal’s decision.

 

The proceedings before the Upper Tribunal

 

13. The appellant’s representative, Ms A, puts forward two grounds of appeal. The first is a submission that the tribunal failed to make sufficient findings of fact about the effects of the appellant’s condition and also failed to give adequate reasons for preferring the report of the EMP from June 2008 to the report of Dr K from December 2008. The second ground, as already indicated, relates to an allegation of bias.

 

14. Mr R.J. Atkinson, who now acts for the Secretary of State in these proceedings, supports the appellant’s appeal to the Upper Tribunal. He agrees that the tribunal failed to provide adequate findings of fact or reasons for its decision and in particular with regard to the mental health descriptors.

 

15. Dr K’s report ran to some 25 pages. A substantial part of that report concerned the mental health descriptors, with Dr K reviewing the evidence, making findings and expressing an opinion with respect to whether particular descriptors applied. I acknowledge that Dr K seems to have misunderstood how the scoring system operates, in that Dr K appeared to believe that if a 2 point-descriptor was partly met then 1 point might be awarded. That aside, Dr K’s report was clearly a detailed report which needed to be addressed. Indeed, although the report was prepared in December 2008, Dr K expressly stated that his findings were equally relevant to the appellant’s circumstances as at July 2008.

 

16. The tribunal dealt with only one mental health descriptor in any detail in its Statement of Reasons. Dr K had found that the appellant had real problems with concentration, giving some practical examples, and so concluded that he “would definitely score him 1 point here”. The tribunal, however, found that the appellant had “found his way around the papers [during the hearing] in an excellent fashion and with a considerable degree of alacrity thus giving the lie to the opinions of medical experts relied upon to the effect that he lacks concentration”. There are two problems with the tribunal’s approach here.

 

17. First, the evidence the tribunal relied on was arguably much more relevant to descriptor 15d (“cannot use a telephone book or other directory to find a number”) than to descriptor 15c (“cannot concentrate to read a magazine article or follow a radio or television programme”).

 

18. Secondly, and more fundamentally, the tribunal failed to engage with the other possible descriptors identified by Dr K and also referred to in Ms A’s submission. True, the tribunal found that the additional descriptor 15(e) applied (“mental condition prevents him from undertaking leisure activities previously enjoyed”). As regards the other descriptors, however, the tribunal simply stated that it adopted the reasons given by the EMP in his choice of descriptors, without addressing the contentions of Dr K (and Ms A).

 

19. In Hampshire County Council v JP [2009] UKUT 239 (AAC) a three-judge panel of the Upper Tribunal explained the requirement to give reasons as follows:

 

“…where there is a crucial disagreement between experts and ‘the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other’ (Flannery v Halifax Estate Agencies Limited [2001] 1 WLR 377 (CA))” (at paragraph 39).

 

20. Similarly, a different three-judge panel of the Upper Tribunal in BB v South London and Maudsley NHS Trust [2009] UKUT 157 (AAC) concluded that a First-tier Tribunal in the mental health jurisdiction had failed to give adequate reasons for its decision. In that case the appellant had produced a supportive expert report by a Dr Cripps. The Upper Tribunal observed that:

 

“In Dr Cripps’s report the tribunal had a coherent reasoned opinion expressed by a suitably qualified expert. We consider that in the circumstances of the present case the tribunal needed to state with clarity how and why it disagreed with the reasoning of Dr Cripps” (at paragraph 18).

 

21. That reasoning can be applied in the present case by simply substituting “Dr K” for “Dr Cripps” in the passage just cited.

 

22. The failure to provide adequate findings of fact or reasons is in itself a sufficient ground for finding the tribunal’s decision to involve an error of law such as it requires to be set aside. The District Tribunal Judge who considered the initial application for permission to appeal intimated as much in directions that he issued. However, the focus of the appeal then shifted to the allegations of bias, and the first ground relating to adequacy of fact finding and reasons appears to have been lost sight of in the subsequent proceedings before the First-tier Tribunal.

 

The circumstances giving rise to the allegations of bias

 

23. The appellant took advice on his CICA claim arising out of the 2001 assault from a firm of solicitors, which for present purposes will be known as ABC. Indeed, according to the Record of Proceedings he told the tribunal on 16 April 2009 that his CICA claim arising out of the 2001 assault was still to be resolved, although the “last offer” was an award of £36,000. The appellant’s representative, Ms A, had previously worked for ABC and in that capacity had actually instructed Dr P to provide the February 2005 psychiatric report used in the previous incapacity benefit appeal. Ms A made this point in her written submission to the 2009 tribunal. It was also plain from Dr P’s report that it had been prepared on behalf of ABC for the purposes of the appellant’s 2005 incapacity benefit appeal.

 

24. At some point, it appears in or around 2006, Ms A left ABC’s employment and started working for a voluntary sector welfare rights agency. It is reasonable to surmise from the correspondence on file that the parting of the ways may not have been entirely happy. Ms A asserted that many ABC clients still came to see her in her new role “for advice and assistance and at times representation”. A further development was that ABC later merged with another firm of solicitors, and became known by that firm’s name (DEF).

 

25. Ms A’s father was at one time the senior partner in the firm ABC. Two of the First-tier Tribunal’s fee-paid tribunal judges in the district concerned were also current or former partners in ABC. One of them, Judge A, happened also to be Ms A’s uncle. Judge A took no part in the present proceedings. The other (ex-)partner was Judge B, who was not related to Ms A in any way, and who chaired the tribunal on 16 April 2009. Judge B had retired from what was by then the DEF partnership about 4 months before the 2009 tribunal hearing.

 

The allegations of bias made by Ms A on behalf of the appellant

 

26. In the normal course of events neither the appellant nor Ms A would necessarily have known who would be the tribunal judge chairing the appeal hearing until the day of the hearing itself. Ms A, of course, had sent in a written submission but did not attend the hearing herself. There is nothing in the Record of Proceedings to suggest that Judge B recognised the appellant or vice versa.

 

27. On receipt of the Statement of Reasons, Ms A lodged grounds of appeal on behalf of the appellant. One of these grounds related to the alleged “conflict of interest” in that Judge B had been senior litigation partner at the firm ABC and as such would have had oversight of the appellant’s CICA claim which was still ongoing. She argued that Judge B should accordingly have adjourned the hearing.

 

28. Ms A added that in 2006 she had asked the Tribunals Service not to list any of her cases before either Judge A “for obvious reasons” or Judge B, with whom she was “personally acquainted”. She conceded that she was aware of another case that had in her words “slipped through the net”, but she did not think there was a “problem” until the present appeal arose. It is unclear whether the arrangement that Ms A refers to was one sanctioned by the Regional Tribunal Judge or a District Tribunal Judge or one that was reached informally with Tribunals Service administrators, although Ms A’s correspondence implies the latter.

 

29. In a further submission Ms A claimed that Judge B, as the senior litigation partner, would have been privy to “sensitive and privileged documents” about the CICA claim. She argued that the situation was analogous to that in which a tribunal medical member would stand down from a particular tribunal panel if he or she had been the claimant’s former G.P. She also alleged that as a former employee of Judge B she herself did “not feel that there is impartiality”, especially as she had what she claimed to be “a vast following of clients that were former clients at a former law firm” (i.e. ABC).

 

30. In granting permission to appeal, I directed the parties to the well-known test of bias as set out by the House of Lords in Porter v Magill [2001] UKHL 67 and by the Court of Appeal in Locabail UK v Bayfield Properties [1999] EWCA Civ 3004, decisions which have been applied in the social security context in reported decisions R(DLA) 3/07 and R(IS) 1/09, as well as in the unreported decision of Mr Commissioner Bano (as he then was) in CCS/557/2005. I also referred to the Guide to Judicial Conduct.

 

The proceedings before the Upper Tribunal

 

31. Mr Atkinson, for the Secretary of State, acknowledges in his submission that bias can be both actual and perceived. He rightly points out that the Guide to Judicial Conduct is not simply for the benefit of judges and lawyers. Rather, Mr Atkinson rhetorically asks, “is it not also for the benefit of non-legally qualified parties to actions so that they can be assured that the law, as applied in their case, is seen to be impartial?” (Mr Atkinson’s emphasis). His conclusion is that, although there was no evidence of actual bias in this case, there was a risk of perceived bias in the particular circumstances of this appeal and accordingly Judge B should have stood down.

 

32. I am acutely conscious that Judge B is not a party to this appeal and so has not had a direct opportunity to address the points made by Ms A in a public forum. However, I see from the Tribunals Service file that the District Tribunal Judge did write to Judge B asking for his comments on Ms A’s allegations. I did not regard it as necessary to share Judge B’s observations with either Ms A or Mr Atkinson before reaching a decision on this appeal, as I am confident that it would have no impact on the outcome of what is, in any event, a supported appeal. In fairness to Judge B, however, I record his main points here.

 

33. Judge B acknowledged that he was personally acquainted with Ms A. He confirmed that he did not personally know the appellant. He accepted that the appellant had been a client of ABC when he was a partner at that firm, but he disclaimed any knowledge of the CICA claim or any other legal matters involving the appellant. He pointed out that he had completely retired from DEF in 2008, and that had he retained some connection with the firm, e.g. as a consultant, he would have given thought to his position. He saw no reason to recuse himself, given that he had no personal or professional knowledge of the appellant and given that he had no personal or professional interest in the outcome of this incapacity appeal (in respect of which neither ABC nor DEF had acted).

 

The relevant case law on the test of bias

 

34. The test for apparent bias was set out by Lord Hope of Craighead in Porter v Magill [2001] UKHL 67 at paragraph 103:

 

“The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”

 

35. As Mr Commissioner Lloyd-Davies (as he then was) observed in R(DLA) 3/07, there are accordingly two questions to be resolved:

 

“First, what are the facts which are said to give rise to the possibility that the tribunal was biased. Secondly, whether a fair-minded and informed observer would conclude that there was a real possibility, in the light of those facts, that the tribunal was biased.”

 

36. In CCS/557/2005, a child support appeal, the part-time tribunal chairman was a consultant in a firm of solicitors which the father had consulted in connection with the very same case. It seems that the chairman had been asked by another solicitor in the firm to give advice about the case, although the chairman was not told the name of the firm’s client and there is no reason to suppose that he was aware that he had been consulted about the case when dealing with the appeal.

 

37. Mr Commissioner Bano allowed the father’s appeal in the following terms:

 

“5. I take the view that it is not necessary to consider whether there is a possibility that the discharge of the chairman’s judicial functions were affected in any way by his previous involvement in the case. It is axiomatic that a person discharging judicial functions should be wholly independent. I consider that a person who has previously been involved in a case, albeit unwittingly, in his professional capacity as a solicitor has a sufficiently direct personal connection with the case for it to be unnecessary to show that there is a real possibility of actual bias in order for the decision to be held to be unlawful.”

 

38. The circumstances in CCS/557/2005 were much more straightforward than those in the present appeal: the tribunal judge had unwittingly and unknowingly given advice in a professional capacity on the very case which ended up before him. In the present case, I accept that Judge B neither knew the appellant himself nor had he had any direct professional involvement in the CICA claim or any related legal matter handled by his firm ABC (or DEF).

 

39. The question remains, however, whether this is a material difference or not. I have come to the view that the particular circumstances of the present case fall on the same side of the line as those in CCS/557/2005, although closer to that line, and that there was a risk of bias, albeit perceived rather than actual, for the reasons that follow. It is important to bear in mind that ultimately the test is not what Judge B thinks, nor what the appellant thinks, nor what Ms A thinks. The question must be assessed from the standpoint of “the fair-minded and informed observer” and not the perspective of a participant, whether interested or disinterested.

 

The Guide to Judicial Conduct

 

40. The Guide to Judicial Conduct was published by the Judges' Council of England and Wales in October 2004 and provides guidance as to the standard of conduct to be expected of a judge. Chapter 7 of the Guide deals specifically with "Personal relationships and perceived bias", but points out that “there are few hard and fast rules” and much depends on “judicial instinct”.

 

41. The Guide warns that "Personal friendship with, or personal animosity towards, a party is ... a compelling reason for disqualification" (paragraph 7.2.2). There is, however, no suggestion in the Guide that a judge’s personal friendship with, or personal animosity towards, a representative, or indeed vice versa, is a ground for recusal. Rather, the Guide expressly states otherwise: “Friendship or past professional association with counsel or solicitor acting for a party is not generally to be regarded as a sufficient reason for disqualification” (paragraph 7.2.4). The same principle may be applied to a welfare rights representative in a tribunal context. The day to day practice of the courts and tribunals would simply grind to a halt if the position were otherwise, as Judge B rightly pointed out in his observations to the District Tribunal Judge.

 

42. However, the Guide to Judicial Conduct goes on to state as follows:

 

“Past professional association with a party as a client need not of itself be a reason for disqualification but the judge must assess whether the particular circumstances could create an appearance of bias” (paragraph 7.2.6).

 

43. It is not clear from the terms of paragraph 7.2.6 whether it is confined to the situation where the judge himself or herself had a personal past professional association with a party as an individual client or whether it also covers the situation where the party has been a client of the judge’s firm. However, the latter interpretation is probably the better one, given the realities of modern legal practice. Furthermore, as the Court of Appeal stated in Locabail UK v Bayfield Properties: “in any case there is real ground for doubt, that doubt should be resolved in favour of recusal” (at paragraph 25).

 

Bangalore Principles of Judicial Conduct

 

44. The Guide to Judicial Conduct builds on The Bangalore Principles of Judicial Conduct, the importance of which has recently been recognised by the Privy Council in Hearing on the Report of the Chief Justice of Gibraltar (Gibraltar) [2009] UKPC 43. The Bangalore Principles, which set out certain key judicial values, were adopted by an international conference of Chief Justices in 2002. Value 2 is “Impartiality”, and the Bangalore Principles state that “A judge shall disqualify himself or herself from participating in any proceedings... in which it may appear to a reasonable observer that the judge is unable to decide the matter impartially” (paragraph 2.5).

 

45. The international Judicial Integrity Group has since published a detailed Commentary on the Bangalore Principles of Judicial Conduct (March 2007). This Commentary confirms that “Impartiality must exist both as a matter of fact and as a matter of reasonable perception” (paragraph 52). Moreover, “The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasize that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by other judges of the capacity or performance of a colleague” (paragraph 81).

 

46. The Bangalore Principles give as an example of one situation in which judges should recuse themselves as where “the judge previously served as a lawyer or was a material witness in the matter in controversy” (paragraph 2.5.2). The Commentary gives the following further explanation of this example:

 

“Lawyers responsible for professional acts of partners

 

95. A solicitor or similar lawyer practicing [sic] in a firm or company may be legally responsible for the professional acts of other partners. He or she may therefore owe a duty as partner to clients of the firm even though he or she had never acted for them personally and knows nothing of their affairs. Accordingly, a judge who had previously been a member of such a firm or company should not sit on any cases in which the judge or the judge’s former firm was directly involved in any capacity before the judge’s appointment, at least for a period of time after which it is reasonable to assume that any perception of imputed knowledge is spent”.

 

47. Paragraph 95 of the Commentary is clearly written with permanent salaried judiciary in mind, rather than fee-paid part-time judges. However, the underlying principle must apply equally to the latter category. Furthermore, the terms of paragraph 95 suggest that paragraph 7.2.6 of the domestic Guide to Judicial Conduct (see paragraphs 42 and 43 above) should be read broadly rather than narrowly.

 

The Upper Tribunal’s conclusions on the issue of bias in this case

 

48. The first question is to establish the facts which are said to give rise to the possibility that the First-tier Tribunal may have been biased. Ms A’s allegation of bias is essentially based on three main facts: (1) that she knows Judge B personally; (2) that she used to work as an employee for the same firm in which Judge B was a partner; (3) that Judge B had worked for, and had been senior litigation partner in, that same firm, which was still dealing with the appellant’s CICA claim.

 

49. The second question is then “whether a fair-minded and informed observer would conclude that there was a real possibility, in the light of those facts, that the tribunal was biased.” In the light of the case law and the domestic and international guidance cited above, I am satisfied that a fair-minded and informed observer would not conclude that there was a real possibility of bias on the basis of points (1) and (2) in the preceding paragraph.

 

50. As regards point (1), the fact that Ms A and Judge B are acquainted is really neither here nor there. As indicated above, that is a daily fact of life in tribunals and courts. As the Commentary on the Bangalore Principles of Judicial Conduct advises, judges should avoid frequent recusals and it is important to avoid the impression that a party (and indeed any representative) may be able to “pick and choose the judge who will decide its case” (paragraph 66). The same reasoning applies to point (2), namely the fact that there had been a previous employment relationship between Ms A and Judge B.

 

51. However, I conclude that a fair-minded and informed observer would be concerned about the risk of bias in that Judge B had been senior litigation partner in ABC, which was still dealing with the appellant’s CICA claim. There are a number of separate component facts relating to point (3) which the fair-minded and informed observer would take into account. These are: (a) the appellant’s CICA claim and incapacity benefit appeal both arose out of the same assault in 2001; (b) ABC were still acting for the appellant at the time of the 2009 incapacity benefit appeal in connection with his outstanding CICA claim; (c) Judge B had been senior litigation partner in ABC and had only retired from what was by then the DEF practice a few months previously; (d) ABC had also previously acted for the appellant in the earlier incapacity benefit appeal, in which Dr P had been instructed.

 

52. It may be that one of these factors alone would not have been sufficient for the fair-minded and informed observer to be concerned about a real possibility of bias. Taken together, however, and bearing in mind again the guidance in the case law and the domestic and international codes of judicial conduct, my view is that the fair-minded and informed observer would conclude that there was a real possibility of bias.

 

53. I emphasise that this is a case of perceived bias, not actual bias. However, the result is that the tribunal’s decision involves an error of law and so must be set aside on that basis as well. I also stress that there is no question about Judge B’s good faith – but judicial good faith is not the test for perceived bias.

A coda: the position of Judge A

 

54. It will be recalled that Ms A’s uncle, Judge A, is also a current or past partner in ABC (now DEF), although he has had no part in the present appeal. For completeness, however, it may be helpful to deal with his position.

 

55. The Guide to Judicial Conduct advises as follows:

 

“A judge should not sit on a case in which a member of the judge’s family (as defined in the Bangalore principles) appears as an advocate” (paragraph 7.2.8).

 

56. Strictly, this would not cover the uncle/niece relationship between Judge A and Ms A. The Bangalore Principles of Judicial Conduct define the judge’s family as including “a judge’s spouse, son, daughter, son-in-law, daughter-in-law, and any other close relative or person who is a companion or employee of the judge’s and who lives in the judge’s household”.

 

57. So in principle there is no reason why Judge A should not be involved in hearing appeals in which Ms A acts as a representative. However, in the particularly complex and fraught circumstances of this appeal it would not be appropriate for Judge A to conduct the re-hearing and I direct accordingly.

 

Conclusion

 

58. For the two reasons explained above, the decision of the First-tier Tribunal involves an error of law. I must therefore allow the appeal and set aside the decision of the tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)). The case must be remitted for re-hearing by a new tribunal subject to the directions above (section 12(2)(b)(i)). My decision is also as set out above.

 

59. I stress that I am making no decision nor indeed expressing any view on the issue of whether the appellant is properly entitled to an award of incapacity benefit. That is a matter for the good judgment of the new tribunal. To do so it must review all the relevant evidence and make its own findings of fact.

 

60. I must also draw attention to section 12(8)(b) of the Social Security Act 1998. This states that a tribunal “shall not take into account any circumstances not obtaining at the time when the decision appealed against was made” (emphasis added). This means that the new tribunal will have to focus on the appellant’s circumstances as at 27 July 2008, the date of the Secretary of State’s decision, and not the position as at the date of the new hearing. It may be difficult to think back to the position nearly two years ago, but that is the requirement laid down by statute.

 

 

 

 

 

 

 

Signed on the original Nicholas Wikeley

on 9 March 2010 Judge of the Upper Tribunal