AS v Secretary of State for Work and Pensions [2011] UKUT 159 (AAC) (15 April 2011)
Decision
of the Upper Tribunal
(Administrative Appeals Chamber)
This decision is given under section 12(2)(a) of the
Tribunals, Courts and Enforcement Act 2007:
Although the decision of the First-tier Tribunal under
reference 230/09/00477, made on 2 March 2010 at Newcastle-upon-Tyne, involved
the making of an error on a point of law, it is NOT SET ASIDE.
Reasons
for Decision
1.
This case raises important issues about the powers of the First-tier
Tribunal to change its written reasons.
A.
History and background
2.
The claimant was awarded an employment and support allowance from 3
December 2008. The award was based on a GP’s certificate that the claimant had
stress. When the claimant completed a self-assessment questionnaire in February
2008, he reported depression related to his stress as well as problems with his
heart, tennis elbow and pain in his legs. The medical adviser identified a
problem only with standing and sitting. On the basis of that report, the
decision-maker decided that the claimant scored only six points and terminated
his award. The claimant exercised his right of appeal to the First-tier
Tribunal. In support, he produced a Psychiatric Report from Dr Tyrie. At the
first hearing, the tribunal had not seen the report, through no fault of the
claimant, so it adjourned the hearing. At the second hearing, the tribunal
again adjourned, this time to obtain the GP’s records. At the third hearing,
the tribunal found that the claimant satisfied two of the mental health
descriptors, but removed the points for standing and sitting. The combined
result was that the claimant did not have sufficient points to justify an
award. The tribunal provided detailed written reasons for its decision, in
twelve paragraphs over two pages. The presiding judge explained that the removal
of the points for standing and sitting was based in part on Dr Tyrie’s report.
3.
The claimant’s representative applied for permission to appeal on two
grounds. First, the tribunal had failed to establish the type of chair on which
Dr Tyrie has observed the claimant sitting. Second, the tribunal had not dealt
with reasonable regularity in respect of sitting.
4.
That application was referred to the presiding judge. She produced a new
statement with additions that dealt in detail with the matters raised in the
application for permission to appeal, an additional nine lines of type in
total. At the end, she wrote:
The original statement omitted
in error to refer to certain matters relating to sitting and also to the
reasonable regularity test. They had been considered by the Tribunal but
were not included in the Statement of Reasons as a result of a clerical mistake
or accidental slip or omission. Consequently, using powers under rules 2, and
36, the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber)
Rules 2008, the statement has been amended. This is subject to a district
tribunal judge accepting this statement.
Documents on the tribunal’s file show that, apart from the words
I have italicised, that passage was added at the suggestion of a salaried
judge.
5.
The salaried judge then issued this direction:
The Appellant has applied for
permission to appeal to the Upper Tribunal against the decision of the Tribunal
issued on 2.3.10.
Following receipt of the
permission to appeal it is proposed to review the decision of the Tribunal
under Rule 40 of the Tribunal Procedure (First-tier Tribunal) (Social
Entitlement Chamber) Rules 2008.
Pursuant to section 9(2)(b) of
he Tribunals, Courts and Enforcement Act 2007 the Tribunal can review a
decision when a party has asked for permission to appeal when it considers that
the decision contains an error of law.
The Tribunal considered there
might be an error of law in the decision as identified in the request for
permission to appeal. The error of law appears to be that the Tribunal may not
have considered all the matters raised.
The judge that prepared the
Statement of Reasons has been asked to consider the issues raised in the
request and has replied. It is proposed to amend the Statement of Reasons. The
attached document is planned to be treated as an amendment of the above
documents. The amendment is proposed under Rule 36 of the Tribunal Procedure
(First-tier Tribunal) (Social Entitlement Chamber) Rules 2008.
The appellant and any
representative and any other party to the proceedings are invited to make
comments in writing within 14 days of the date that this direction was sent to
them, after which the tribunal will make a decision whether, and how, to review
the decision of the Tribunal.
6.
Subsequently, the salaried judge issued this decision:
The Appellant has applied for
permission to appeal to the Upper Tribunal against the decision of the Tribunal
on 2.3.10.
The Statement of Reasons as
amended has been used to make the decision.
It is not appropriate to review
the decision because the decision contains no error of law or procedure.
Permission to appeal is refused
because
No error of law has been
identified
Clear reasons have been given to
explain the findings of fact.
The Tribunal has provided
sufficient reason to explain why it came to the conclusion it did. The reasons
are adequate in line with CIS/4022/2007 and Miss H v East Sussex County Council
and Ors [2009] EWCA Civ 249 (Court of Appeal, 31.3.09).
7.
The claimant’s representative then applied to the Upper Tribunal for
permission to appeal on the following grounds. First, the revised reasons did
not deal with whether the chair in which the claimant sat when with Dr Tyrie
had arms. Second, the changes to the original reasons were a nullity and void
for uncertainty. In support of the argument on uncertainty, the representative
argued that: (i) the additional reasons were those of the presiding judge, not
the doctor on the panel; (ii) the judge did not explain how she could recall
the reasons after six months.
B.
The legislation
8.
There are two statutory powers that authorise a tribunal to alter its
reasons.
9.
One power is contained in rule 36 of the Tribunal Procedure (First-tier
Tribunal) (Social Entitlement Chamber) Rules 2008 (SI No 2685):
36 Clerical mistakes and
accidental slips or omissions
The Tribunal may at any time
correct any clerical mistake or other accidental slip or omission in a
decision, direction or any document produced by it, by-
(a) sending
notification of the amended decision or direction, or a copy of the amended
document, to all parties; and
(b) making
any necessary amendment to any information published in relation to the
decision, direction or document.
10.
The other power is provided by section 9 of the Tribunals, Courts and
Enforcement Act 2007:
9 Review of decision of
First-tier Tribunal
(1) The First-tier Tribunal
may review a decision made by it on a matter in a case, other than a decision
that is an excluded decision for the purposes of section 11(1) (but see
subsection (9)).
…
(4) Where the First-tier
Tribunal has under subsection (1) reviewed a decision, the First-tier Tribunal
may in the light of the review do any of the following-
(a) correct accidental errors in the decision
or in a record of the decision;
(b) amend
reasons given for the decision;
(c) set
the decision aside.
11.
The power to review under section 9 is governed by rule 40:
40 Review of a decision
(1) This rule does not apply
to asylum support cases or criminal injuries compensation cases.
(2) The Tribunal may only
undertake a review of a decision-
(a) pursuant
to rule 39(1) (review on an application for permission to appeal); and
(b) if
it is satisfied that there was an error of law in the decision.
(3) The Tribunal must notify
the parties in writing of the outcome of any review, and of any right of appeal
in relation to the outcome.
(4) If the Tribunal takes
any action in relation to a decision following a review without first giving
every party an opportunity to make representations, the notice under paragraph
(3) must state that any party that did not have an opportunity to make
representations may apply for such action to be set aside and for the decision
to be reviewed again.
12.
Under the 2007 Act, all decisions are made by the tribunal. The
composition of the tribunal is governed by the First-tier Tribunal and Upper
Tribunal (Composition of Tribunal) Order 2008 (SI No 2835), which was made
under the authority of paragraph 15 of Schedule 4 to the Act. The Order
delegates the power to direct the composition of the tribunal for different
purposes to the Senior President of Tribunals. He exercises this power through
a series of Practice Statements. His Composition of tribunals in social
security and child support cases in the Social Entitlement Chamber on or after
3 November 2008 provides:
10. 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.
11. The
determination of an application for permission to appeal under rule 38 of the
2008 Rules and the exercise of the power of review under section 9 of the
Tribunals, Courts and Enforcement Act 2007 must be carried out –
a. where the Judge who constituted or was a member of the
Tribunal that made the decision was a fee-paid Judge, by a salaried Tribunal
Judge; or
b. where the Judge who constituted or was a member of the
Tribunal that made the decision was a salaried Judge, by that Judge or, if it
would be impracticable or cause undue delay, by another salaried Tribunal
Judge,
save that,
where the decision is set aside under section 9(4)(c) of the Act, the matter
may only be re-decided under section 9(5)(a) by a Tribunal composed in
accordance with paragraph 4, 5 or 6 above.
C.
the changes were not authorised
13.
I have come to understand, and have a little more sympathy with, the
salaried judge’s approach as these proceedings have progressed. I began by
being puzzled by some of his directions. Why for example did he allow the
parties a chance to comment within 14 days on the exercise of rule 36, which is
usually a matter outside the knowledge of the parties? Following the Secretary
of State’s response to the appeal, I realised that the judge was trying to do
two things at once and this had caused him to give the directions that had
puzzled me. His difficulty arose from the Senior President’s Practice
Statement. The presiding judge had power to act under rule 36, but not on
review. The salaried judge had power to act under rule 36 and on review, but
would obviously have difficulty in knowing whether the conditions for the
exercise of the rule 36 power were satisfied. This led him to include in one
set of directions provisions that were appropriate for review but not for rule
36, such as a chance to make representations. That direction related to rule
40(4) and was obviously included to cater for the possibility that the salaried
judge might review the decision. An opportunity to comment might be appropriate
in some cases when rule 36 is in contemplation. For example: other parties may
be affected by the correction. But in this case, as will often be so, that was not
appropriate, as the need for the correction was uniquely known to the members
of the panel that decided the case and to the judge who wrote the tribunal’s
reasons. In the event, the provision was not necessary, as the salaried judge
did not conduct a review.
14.
Rule 36 and section 9(4) contain separate powers. It is not necessary to
review a decision in order to operate rule 36. The powers in section 9(4) only
apply once a decision has been reviewed. And a decision can only be reviewed if
it contains an error of law. The power in section 9(4)(a) looks similar in its language
and scope to rule 36. The power in section 9(4)(b) looks wider. The contrasting
language of that latter (amend rather than correct) and its addition to section
9(4)(a) indicate that it is wider that the powers to correct.
15.
Rule 36 operates outside the review power. The composition of the
tribunal is governed by paragraph 10 of the Practice Statement. The power could
have been exercised by either the presiding judge or the salaried judge. The
changes to the reasons were written by the presiding judge. The comment that
the changes were ‘subject to a [salaried] district tribunal judge accepting the
amendment’ may suggest that the formal exercise of the power was left for the
salaried judge, but there is nothing to show that he exercised the power under
rule 36. His refusal of permission merely records that the reasons had been
‘amended’. That term is more appropriate to section 9(4)(b) than to rule 36,
which uses the term ‘correct’. But there is no formal decision reviewing the
tribunal’s decision and using the power under section 9. The only decision is
the one refusing to review and refusing permission to appeal.
16.
Rule 36 is by its contents a species of slip rule and should be
interpreted in accordance with the nature of that type of provision. As such,
it deals with matters that were in the judge’s mind when writing but for some
reason did not find their way onto the page. Typical examples are the typing
error that produces the wrong date or a momentary lapse of concentration that
results in the word ‘not’ being omitted. The rule does not cover matters that
the judge had planned to mention but forgot to include. Obviously, it is
difficult for the Upper Tribunal to know what was in the judge’s mind, but the
extent of the changes are an indication. It is difficult to classify the
omission of a total of nine lines of explanation as in the same category of
mistake as a typing error or a momentary lapse of concentration. For that
reason, I decide that the changes made by the presiding judge were not
authorised by rule 36.
17.
The Secretary of State has submitted that it is possible to treat
something that was invalidly done under one power as validly done under
another. That may be possible in some cases. It would certainly be of no value
to anyone for the case to be sent back to the First-tier Tribunal for the same
result to be obtained under a different authority. (In practice, the Upper
Tribunal could decline to set the decision aside under its discretion in
section 12(2)(a) of the Act.) In this case, it is not possible to treat the
changes as validly made under the review power. Not only was there no review
under section 40, but the conditions for a review were not satisfied: the
salaried judge merely said initially that there might be an error and then that
there was no error on the new version of the reasons. In those circumstances,
it is impossible to treat the changes as made under section 9(4)(b).
18.
The claimant’s representative referred me to SE v Secretary of State
for Work and Pensions [2009] UKUT 163 (AAC) and AM v Secretary of State
for Work and Pensions [2009] UKUT 224 (AAC). Those decisions are
distinguishable on the ground that in this case the tribunal expressly relied
on rule 36. The tribunals in those cases expressly relied
on rule 40.
19.
There are authorities that allow a judge to add to reasons once they
have been given. No one has argued that the changes to the reasons could have
been valid under that power, which was not used. Whether those authorities
apply in social security cases is a matter for another day.
D.
The other arguments
20.
I have yet to deal with the other arguments put by the claimant’s
representative.
21.
The first argument is that even the revised reasons did not deal with
whether the chair that the claimant used with Dr Tyrie had arms. That is not
correct. The judge included a statement that this was not stated by Dr Tyrie.
22.
The other argument was based on uncertainty. This was put on two
grounds. The first ground was that the presiding judge had added her own
reasons, not those of the panel, as she had not consulted the doctor who sat
with her. I reject this argument. For a start, there is no evidence that she
did not consult the doctor. Nor was there necessarily any need for her to do
so. A tribunal’s reasons are those of the whole panel and they should be
apparent to them at the end of their deliberations. Consultation should not
usually be necessary. The second ground is effectively that the judge could not
recall the tribunal’s reasons six months later. I reject this argument. Judges
can often recall the details of cases long after the hearing. They also take
notes that they are able to consult. The judge has said that she meant to deal with
the additional issues and there is no reason to doubt her integrity.
E.
why i have not set the decision aside
23.
The tribunal’s reasons as originally drafted did not deal with the two
issues of sitting and reasonable regularity. The revised reasons included
those, but I have decided that the additions were not valid. In those
circumstances, the tribunal’s reasons were inadequate and I now have to decide
on disposal. I have a power not to set aside a decision, despite an error of
law, under section 12(2)(a) of the 2007 Act:
(2) The
Upper Tribunal-
(a) may (but need not) set
aside the decision of the First-tier Tribunal, …
I allowed the claimant’s representative a chance to comment
on disposal, but he merely referred me to a statement in the Secretary of
State’s response that supported a rehearing. I am not sure that is the effect
of the response when it is read as a whole. Be that as it may, the issue is one
for me to decide and the claimant’s representative has not commented on it.
24.
The key issue is whether I can take account of the additional reasons
that were given by the judge outside the authority of rule 36. There are two
possible approaches. One is to ignore those reasons as they were given without
authority. The other, which I favour, is not to direct a rehearing if the
tribunal’s decision was sound on the facts and the law. In deciding whether it
is sound, I see no reason why I cannot take into account the additional reasons
that the judge gave. As I have said, there is no reason to doubt the judge’s
integrity. I have know other judges to admit that they could not recall
reasons, but she has said that she can. The reasons she has given are soundly
based in the evidence and are the sort of reasons that I would have expected
the tribunal to give. In summary, they are as follows. The tribunal took
account of Dr Tyrie’s evidence as one part of the evidence as a whole,
appreciating that the doctor did not specify the type of chair. It decided that
the claimant did not have a significant back problem, sufficient to affect his
ability to sit regularly, in view of the contents of the detailed medical
records provided by his GP. Those are sound and rational reasons for rejecting
the claimant’s case on sitting.
25.
My decision is that technically the tribunal’s reasons were inadequate,
but having read the evidence that was before the tribunal, and taken into
account the tribunal’s reasons as disclosed by the judge, I consider that the
decision itself was sound in fact and law. It is not appropriate to set it
aside. I exercise my power under section 12(2)(a) accordingly.
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Signed on original
on 15 April 2011
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Edward Jacobs
Upper Tribunal Judge
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