Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CDLA/1780/2010

ADMINISTRATIVE APPEALS CHAMBER CDLA/1781/2010

Before Judge Mark

Decision:  1. The application of the claimant for an oral hearing of these appeals is

 refused.

2. The appeals are dismissed.

REASONS FOR DECISION

1.     These are two appeals with the permission of a tribunal judge from linked decisions given by a first tier tribunal sitting in Darlington on 15 April 2010.

2.     The claimant, who suffers from back pain and depression, was awarded the higher rate of the mobility component of DLA, and the lowest rate of the care component, from 22 April 2005 to 21 April 2008.  In December 2007 she submitted a renewal claim.  There was no medical examination at this stage, but in the application the claimant contended that she could only walk about 50 yards in 4 minutes, but with severe discomfort after two minutes, that she would fall without physical support, and needed somebody with her out of doors at all times for physical and emotional support, and that she had significant care needs and that she could not stand long enough to prepare a cooked meal.  The renewal claim was supported by a very short GP’s report that the GP saw the claimant every one or two months and that she suffered from acute back pain, depression and anxiety.  The GP provided no information as to the extent to which these problems affected the claimant’s ability to walk or self care.

3.     On 20 February 2008 the claimant was given an indefinite award of the lower rate of the mobility component and the lowest rate of the care component from 22 April 2008.  At the claimant’s request this award was reconsidered, but it was not revised, despite the claimant having contended that she could only walk 20-30 metre most days and that the award should not be reduced. 

4.     On 22 April 2008 the claimant appealed, contending that her condition had worsened and not improved.  The first hearing of her appeal was on 25 September 2008, when the hearing was adjourned to the next available date and the secretary of state was directed to arrange a medical examination of the claimant.  The claimant, who was represented throughout, was warned at that hearing that the tribunal would consider the appropriateness of the existing award on the next occasion and that she could end up with a lower award as to both time and the level of the award.

5.     The medical examination took place on 18 October 2008, and in his report the medical practitioner who carried out the examination expressed the opinion based on the examination that the claimant could fully self care and could walk slowly with a stick, with normal balance, for about 400 metres before the onset of severe discomfort.

6.     On 31 October 2008 the original decision maker reconsidered the decision dated 20 February 2008 and determined that the claimant was not entitled to either component of disability living allowance at any level from and including 31 October 2008.  Although described as a revision of the earlier decision, it was clearly a supersession of that decision.

7.     The claimant appealed that decision, and a further adjournment of the original appeal was granted at the adjourned hearing of that appeal on 9 December 2008.  A direction was then given at that hearing that the two appeals should be heard together.  There was no appeal against that direction.  The two appeals were then listed to be heard on 24 April 2009, but by letter dated 26 March 2009 the claimant’s representative asked that they should be postponed, and that request was granted. 

8.     They then came on for hearing on 27 May 2009 before a new tribunal, which would appear from the record of the proceedings to have sat from 10.12 to 11.35am.  In the course of the hearing, problems arose and the tribunal directed that the appeals should be relisted together on the next available date for a complete session before the same tribunal.  The adjournment was stated to be due to ‘the Appellant’s representative not being able to proceed due to lack of evidence and asserted lack of papers’. Directions were given as to further evidence and submissions and the claimant’s attention was expressly drawn to the warning originally given on 25 September 2008 with regard to the decision of 20 February 2008.  The directions further expressly stated that in the interests of resolving the appeals, the matter would proceed at the next session.

9.     The next hearing was on 26 August 2009 before the same tribunal.  On this occasion the hearing again lasted for over an hour according to the record of the proceedings and was then again adjourned with further directions giving leave for the claimant to adduce full copies of her GP’s records and other documents from 1 January 2005 and to serve them on the DWP within 21 days, and with further directions for the production and service of written submissions by both the claimant and the DWP.

10. The adjourned hearing was then relisted before the same tribunal on 15 April 2010.  Despite directions that the same representatives should attend that hearing as had attended the previous hearings, the claimant attended with a different representative, who had previously represented the claimant at the hearing on 9 December 2008 and who has also represented the claimant on this appeal.  He sought to take two new points.  First he contended that the second appeal should be heard first, and secondly, and more significantly for the purposes of this appeal, he contended that the two appeals should be heard by separate tribunals.  Both applications were rejected by the tribunal. 

11. It appears from the record of the proceedings that while the tribunal was considering how to deal with the two applications, at 10.35am the tribunal was given notice of the claimant’s withdrawal of the appeal against the decision of 20 February 2008.  The tribunal refused to agree to that appeal being withdrawn and heard both appeals, concluding unanimously that the claimant was not entitled to either component of DLA from 22 April 2008.  It found that the claimant’s evidence was unreliable, that with the aid of a walking stick she was able to walk in excess of 350 metres before the onset of severe discomfort in about 6 minutes with a slightly limping gait and normal balance.  It also found that she had not had any propensity to fall since she had started using a stick in 2005, that she had stopped having panic attacks and did not have the care needs she claimed.  Her back was bad at most 1-2 days per week.  She had clearly overstated her condition and understated her capabilities.

12. Permission to appeal was sought by her representative on two grounds.  The representative has also sought an oral hearing of the appeal.  I see no reason to hold such a hearing.  The argument that the two appeals ought to have been heard by two separate tribunals is wholly misconceived.  The factual evidence in the two appeals was closely interrelated, and plainly called for the two appeals to be heard together.  I can see no rational basis for the suggestion that the claimant could not receive a fair hearing of the second appeal once the tribunal had determined the first appeal against her.

13. As the decision on the appeal from the decision of 20 February 2008 was that the claimant was not entitled to either component of DLA, the tribunal ought to have framed its decision so as to revise the decision under appeal to provide this.  That is, however, the clear meaning of the decision read as a whole.  Once that appeal was dealt with on that basis, the claimant could derive no benefit from the second appeal as there was no entitlement to benefit at all independently of the award made in February 2008, and no new award could be made on the basis of it.

14. Finally, the direction that the appeals be heard together had been given in December 2008 and it was only at the third subsequent hearing that any attempt was made to disturb it at the last possible moment.  While there may be cases where the injustice from a proposed course of action might be so plain that even at that stage a tribunal ought to take steps to avoid it, that is not the case here. On all counts the tribunal was correct to proceed with both appeals.

15. So far as the second ground of appeal is concerned, rule 17(1)-(3) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 provides as follows:

(1)   Subject to paragraph (2), a party may give notice of the withdrawal of its case, or any part of it –

(a)     at any time before a hearing to consider the disposal of the proceedings (or, if the Tribunal disposes of the proceedings without a hearing, before that disposal), by sending or delivering to the Tribunal a written notice of withdrawal; or

(b)     orally at a hearing.

(2)   In the circumstances described in paragraph (3), a notice of withdrawal will not take effect unless the Tribunal consents to the withdrawal.

(3)   The circumstances referred to in paragraph (2) are where a party gives notice of withdrawal –

(a)     under paragraph (1)(a) in a criminal injuries compensation case; or

(b)     under paragraph (1)(b).

16.  In my judgment, it is clear that the absolute right to withdraw ceases once a hearing to consider the disposal of the proceedings commences.  In this case it is clear that a hearing to consider the disposal of the proceedings commenced at the latest on 27 May 2009 in accordance with the directions at the previous hearing.  The record of the proceedings shows that claimant stated that she was worse that day that in February 2008, but the representative was concerned that she did not have all the documents.  The tribunal advised the representative that the claimant had been seen walking through an underpass at a fair pace that day to the tribunal room with minimal use of her stick and talking quite happily, but it reluctantly concluded that an adjournment was needed.  Both parties’ attention was drawn to the fact that in the interests of resolving these appeals the matter would proceed at the next hearing and it was directed to be re-listed before the same tribunal.

17. Again, at the adjourned hearing on 26 August 2009, it is noted that the claimant stated that she was worse since February 2008 with regard to pain and everything and walking, and was a bit worse since October 2008.  It would appear that her representative arrived late, as there follows an apology for her late arrival.  It is noted that the hearing was told that a tribunal member had seen the claimant coming up the ramp/underpass at a brisk pace again that day and it was explained that the claimant should take advice from the representative as to whether to withdraw the appeals.  Again the case was adjourned to come on before the same tribunal.

18. Had the claimant written to withdraw her appeals, it seems clear that the tribunal would have exercised its discretion to allow her to do so.  She did not do that, but instead attended the adjourned hearing before the same tribunal and only sought to withdraw after her representative had made preliminary submissions to the tribunal. 

19. The absolute right to withdraw is only before ‘a hearing to consider the disposal of the proceedings’.  Once such a hearing has commenced, the absolute right has gone, although in many cases, where a claimant acts reasonably promptly after being warned that she could have her benefit lost or reduced, a tribunal is likely to exercise its discretion to permit her to withdraw.  In the present case the hearing had commenced on three occasions before the claimant sought to withdraw.  It had commenced even if it commenced with procedural arguments.  The claimant had had two warnings and had also had it pointed out twice that she had been seen walking in a manner inconsistent with her claims despite the fact that she had twice claimed to be worse than at the time of the award.  She had ignored these warnings and it seems to me that the tribunal was fully justified in refusing to permit her to withdraw.

20. It is pointed out in the notes to rule 17 in vol.3 of the Social Security Legislation 2010/11, and in earlier editions of that volume, that a case cannot be withdrawn at a hearing without the consent of the Tribunal, although it is suggested that it apparently can be withdrawn during an adjournment.  That is not what the rule provides.  It gives an absolute right to withdraw only before a hearing.  Once the hearing commences the absolute right goes and it does not revive just because there is an adjournment, whether for discussions, for lunch or for a more extended period.

21. I do not consider that oral argument could affect the outcome of this appeal and there is no absolute right to an oral hearing.  The original appeal involved five hearings and a very considerable amount of tribunal time which might have been at least partly saved had the claimant acted with greater speed in gathering her evidence, and in considering the question of withdrawal when invited to do so.   It would not be in accordance with the overriding objective of dealing with cases fairly and justly to hold an oral hearing, involving, as it must, time and expense, and delay to parties in other cases, when the relevant facts and law are as clear as they are here.

(signed on the original) Michael Mark

Judge of the Upper Tribunal

7 June 2011