Upper Tribunal (Administrative Appeals Chamber)

DECISION OF THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

The claimant's appeal to the Upper Tribunal is allowed. The decision of the Ashford First-tier Tribunal dated 17 September 2010 involved an error on a point of law 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 13 below and any further procedural directions given by a district tribunal judge (Tribunals, Courts and Enforcement Act 2007, section 12(2)(b)(i)).

REASONS FOR DECISION

1. The tribunal was concerned with the decision dated 22 March 2010 superseding the decision of 15 February 2009 awarding the claimant contributory employment and support allowance (ESA), apparently on the ground of receipt of medical evidence from an approved health care professional (regulation 6(2)(r) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999). The superseding decision was that the claimant was not entitled to ESA from and including 22 March 2010 because he was no longer assessed as having limited capability for work. The claimant appealed, saying that he had a very bad back as well as psychological problems and sleep disorder.

2. On the enquiry form sent to him with the Secretary of State's written submission he clearly answered no to the question whether he wanted a hearing where he and any representative could meet the tribunal and put his case. The notes on the form continued:

"If you have ticked NO, we will go ahead on the basis that you have no objection to your appeal being decided by the Tribunal in your absence. You can still write to us with anything you would like the Tribunal to take into consideration, but please do so within the next 14 days."

The claimant apparently enclosed a short written statement with the enquiry form received by the First-tier administration on 14 July 2010, repeating in substance what he had said in the appeal, but adding that his back pain had got worse than before and that he had lost his driving licence in 2003 because of a very harsh decision by an unfair judge and that he still suffered from depression and sleeping disorder.

3. The tribunal determined the appeal on 17 September 2010, without a hearing. The decision notice said nothing about whether there had been a hearing or not and no record of proceedings was produced. The statement of reasons prepared at the claimant's request dealt with the substance of the evidence and the tribunal's findings and conclusions. In paragraph 7 it was recorded that the claimant had appealed against the decision of 22 March 2010 and had provided no further evidence and that he had "opted to have his appeal dealt with without a hearing".

4. The claimant now appeals against that decision with my permission. The appeal has been supported on behalf of the Secretary of State in the fully reasoned submission dated 13 June 2011, which suggested that the case be referred back to a new tribunal for rehearing. The claimant had no observations to make in reply but understandably said that he wanted reasons to be given.

5. When giving the claimant permission to appeal I had said this, after noting that I would not have given permission on the grounds put forward by the claimant, which were no more than attempts to make better arguments than he had put to the First-tier Tribunal:

"... Since this was a case in which there was no hearing and, in accordance with recent practice, no record of proceedings was completed, it is arguable that the tribunal's statement of reasons was inadequate in that it failed to demonstrate that the condition in rule 27(1)(b) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 for making a decision without a hearing was met. The tribunal noted that the claimant had opted to have his appeal dealt with without a hearing (as is confirmed by the [enquiry form] in the Tribunals Service file) and no doubt it can be presumed that the Secretary of State did not object to that course (on the form AT37 sent to the Tribunal Service with the notice of the claimant's appeal and the written submission the `No' box for `Presenting officer to attend?' was ticked). The condition in sub-paragraph (a) of rule 27(1) thus appears to have been met. However, the tribunal said nothing about the condition in sub-paragraph (b) that the tribunal considered that it was able to decide the matter without a hearing or about the residual discretion that it could have exercised to adjourn for a hearing even though able to decide without one. It said nothing about why it had decided to proceed without a hearing at which the claimant could be present beyond noting his option on the [enquiry form]. That was arguably an error of law (compare the comments of the President of the Administrative Appeals Chamber, Mr Justice Walker, in relation to rule 27(4) in paragraph 8 of R (VAA) v First-tier Tribunal (JRC) [2010] UKUT 36 (AAC))."

6. Rule 27(1) of the First-tier Tribunal Rules is as follows:

"(1) Subject to the following paragraphs, the Tribunal must hold a hearing before making a decision which disposes of proceedings unless--

 (a) each party has consented to, or has 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."

None of the other paragraphs of rule 27 impinge on that duty in the case of final decisions on appeals outside the criminal injuries compensation jurisdiction. Under rule 1(3) "hearing" means an oral hearing, including video links and other forms of instantaneous two-way electronic communication.

7. What the Chamber President said in paragraph 8 of VAA, a case about a refusal to admit a late appeal or to extend time, was this:

"The decision of 8 December 2008 by the Tribunal Judge noted in paragraph 7 that [rule] 27(4) of the Rules ... permitted him to make a decision which disposed of the proceedings without a hearing. The decision notice of 8 December 2008, however, does not state this. Moreover it gives no reasons for concluding that it was right to take the decision without a hearing. The Tribunal Judge presumably thought there was no good reason for a hearing. If so, in the circumstances of the present case, he ought to have explained why."

Rule 27(4) gives a more general discretion to a First-tier Tribunal in a criminal injuries compensation case to make a decision disposing of the proceedings without a hearing and does not impose a primary duty to hold a hearing as rule 27(1) does.

8. The view taken on behalf of the Secretary of State in the submission of 13 June 2011 was that, especially as the tribunal found that the claimant's ESA50 questionnaire was very sparsely completed and somewhat vague, it had erred in law by failing to consider whether to adjourn for further medical evidence having taken account of the overriding objective of dealing with cases fairly and justly (rule 2). The representative relied on the decision of Judge Lane in AT v Secretary of State for Work and Pensions (ESA) [2010] UKUT 430 (AAC), which had itself relied on the decision of Judge Jacobs in MH v Pembrokeshire County Council (HB) [2010] UKUT 28 (AAC).

9. I prefer not to enter into the questions of the relevance of the overriding objective to the factors to be taken into account when a tribunal is deciding whether or not to adjourn and of when the exercise of that discretion might involve an error of law that justifies the setting aside of the tribunal's decision. I see the error of law in the present case in the inadequacy of the tribunal's reasons in failing to show that it had considered either the conditions in rule 27(1) for proceeding without a hearing or whether or not to adjourn to give the claimant an opportunity to attend or to produce further medical evidence.

10. Judge Lane made these helpful observations, not as such necessary to her decision of the appeal, in AT:

“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 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 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 [First-tier Tribunal Procedure Rules] 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."

11. The present case falls into the category mentioned in paragraph 13 of AT. There was nothing in any documents apart from the statement of reasons to indicate that the tribunal addressed its mind to rule 27(1) or to whether or not it was fair and just to adjourn for a hearing to take place (or possibly, to give the claimant a further opportunity to make written representations or put in further evidence without there necessarily being a hearing). Then there was nothing in the statement of reasons to indicate that that had been done either. That was an error of law. In my judgment, for the reasons put forward of behalf of the Secretary of State, this was not a case in which no reasonable tribunal would have done other than proceed to make a decision on the papers on 17 September 2011. Accordingly, the error is one that requires the setting aside of the tribunal's decision.

12. It might be objected that that is to require a tribunal to go through an empty technicality, in that the tribunal here plainly did consider that it was able to decide the claimant's appeal without a hearing and that it was fair and just to do so, because that is what it did. It could then be said that it would not have helped the claimant's understanding of matters in any way if the tribunal had simply recited in its statement of reasons what could be a meaningless mantra about rule 27(1) and about the overriding objective in rule 2. However, that would in my judgment be to overlook the force of the requirement in rule 27(1) that there is to be an oral hearing in all cases where the proceedings are disposed of unless both of conditions (a) and (b) are satisfied. It is not good enough for a tribunal in the statement of reasons simply to record that the claimant has opted to have his appeal dealt with without a hearing. It is necessary for the tribunal to acknowledge explicitly that it has considered both of the necessary conditions for excluding the duty under rule 27(1) to have a hearing and to give some reasons (which may, in appropriate circumstances, be very shortly expressed) for its conclusion.

13. The decision of the tribunal of 17 September 2010 is set aside. The claimant's appeal against the Secretary of State's decision of 22 March 2010 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 17 September 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 17 September 2010. There is to be an oral hearing, as in practice happens in all cases remitted by the Upper Tribunal. I am sure that the new tribunal would be greatly assisted if the claimant can attend the hearing to give evidence

and to answer questions in person, which will have to be directed to the circumstances as they were in March 2010. The claimant is of course free to submit further written evidence relevant to the circumstances at that time. I do not need to give any directions of law about the conditions of entitlement to ESA. 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: 18 August 2011