IN THE UPPER TRIBUNAL Case No  CDLA/2156/2010

ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD

Decision:  The appeal is allowed.  The decision of the First-tier Tribunal sitting at Exeter on 5 May 2010 under reference 194/10/00161 involved the making of an error on a point of law and is set aside.  The case is referred to the First-tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal in accordance with the directions set out in paragraph 18 of the Reasons.

REASONS FOR DECISION

1. Both the claimant and the Secretary of State have expressed the view that the decision of the tribunal involved the making of an error on a point of law and have agreed to a rehearing.  That makes it unnecessary to set out the history of the case or to analyse the whole of the evidence or arguments in detail.  I need only deal with the reason why I am setting aside the tribunal’s decision.

2. The claimant has back pain, depression and bowel and bladder problems, resulting in incontinence.  He is also obese. He lives alone and has very limited social contacts, these being essentially confined to the church of which he is a member. 

3. By a decision dated 24 November 2008, as revised on 5 January 2009, the claimant had been awarded the lowest rate of the care component of Disability Living Allowance from 24 October 2008 to 9 September 2010 (both dates included) but not the mobility component at either rate.  On or around 7 September 2009 the claimant applied for supersession on the grounds that his conditions were worsening and he was developing new medical problems.  On 4 December 2009 a decision was taken not to supersede, as the outcome was unchanged.

4. The claimant appealed and expressly requested an oral hearing on his GL24 appeal form.  He sought advice under the Legal help scheme from the Citizens Advice Bureau, who, while not in a position to attend with him, provided a written submission which was received five days before the hearing and which duly found its way in time into the tribunal papers for the hearing.  This was a substantial piece of work, prepared with considerable care.  The submission indicated that the claimant had understated his care needs on his form and reviewed the medical evidence before continuing:

“I submit that [the claimant’s problems are considerable; anyone with this combination of disabilities and on this level of medication is bound to be affected in such a way that day to day life is made substantially   very difficult.  That [the claimant] lives on his own should not be taken as an indication that he is self-managing, it merely means he has to cope on his own. He has explained how he struggles to cope with the combined effects of his disability, when talking to him it is apparent that he is also very depressed.  [The claimant] has told me that he is unsure whether he will be able to attend the Tribunal because he feels he needs someone to be with him.  I am given to understand that he contacted the Tribunals Service and explained his fears about attending, he tells me that he would prefer to be accompanied, he has   asked his priest but unfortunately he is unable to attend on the day.  I have tried to persuade him to attend so that the tribunal can hear first   hand how difficult he is finding it on his own.”

5. The submission then contained a diary extract and four pages of analysis of the claimant’s care needs, in support of an argument that he was entitled to the middle rate of the care component.  In the course of this the CAB worker wrote:

“Although [the claimant] says he does not need help with coping with going out, he admits to being petrified at the prospect of attending the Tribunal.  I saw him on the 27^th April in preparation for his hearing and he told me how agitated he was by it all, he wanted to ‘give up’   because he could not face going on his own.  Unfortunately Legal Help does not extend to representation at the hearing so I am unable to attend; we have no resources to provide anyone to go with him merely for support, nor has he got any one to call on to go with him. I fear he may not attend.”

6. A hearing had been arranged, in accordance with the claimant’s original request and as indeed the tribunal was obliged to do by virtue of rule 27 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, the claimant having neither consented to, nor failed to object to, the case being dealt with without one. The claimant did not attend. As recorded by the tribunal in its statement of reasons:

“We noted that [the claimant] did not attend the hearing of his appeal, it being listed for hearing at 11.40 and [the claimant][ not attending at 12.00.  We gave very careful consideration as to whether or not we had sufficient information upon which to reach a reasoned decision and we decided that we did have such adequate information before us.  Accordingly…the appeal…was unsuccessful.”

7.  When the claimant failed to attend, the matter was governed by rule 31:

“If a party fails to attend a hearing the Tribunal may proceed with the hearing if the Tribunal-

(a) is satisfied that the party has been notified of the hearing or that reasonable steps have been taken to notify the party of the hearing; and

(b) considers that it is in the interests of justice to proceed with the hearing.”

8. Rule 2 provides, so far as relevant:

“2.— Overriding objective and parties' obligation to co-operate with the Tribunal

(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.

(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.

(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.

…”

9. Accordingly, in considering whether to go ahead in the absence of the claimant, the tribunal had:

(a) to decide whether the conditions of limb (a) and limb (b) of rule 31 were met.  If they were not, the discretion whether to proceed did not even arise; and

(b) if they were, to consider the exercise of the discretionary power it had.

10. Rule 2 was potentially relevant in more than one way.  By rule 2(3)(b) the overriding objective was relevant when interpreting any rule or practice direction.  When considering the “interests of justice” in rule 31, guidance is available from what “dealing with a case fairly and justly” includes, as set out in rule 2(2). Rule 2 was also relevant when it came to exercising the tribunal’s discretion (assuming the conditions for the discretion to arise were met.)

11. In the present case, the tribunal gave very careful consideration to whether it had sufficient information to enable it to reach a reasoned decision.  That was an important matter to consider, but it was not the only one.  In this case, the claimant had clearly stated the wish to attend.  However, probably through some combination of personality, mental ill-health and the potentially difficult and embarrassing nature of some of the likely topics for discussion, the claimant was finding it difficult to contemplate attending alone. The only person who, it appears, might have been able to support him, his priest, was unavailable on that particular day.  All of this was known to the tribunal.

12.  Only a few days before, the CAB was still urging the claimant to attend, though unsure whether he in fact would.  Of course, it would have been better if the claimant, either directly or through the CAB, had expressly applied for an adjournment once he had concluded that he could not attend.  But even without such an application, the tribunal was still bound to apply rule 31.  In doing so, in my judgement it limited its field of inquiry unduly narrowly by considering only whether it had enough evidence to enable it to reach a reasoned decision.  While that may have been so, it was also relevant, particularly in the light of the written submission from the CAB, to consider whether further useful evidence was likely to be forthcoming if the tribunal did hear from the claimant and whether it was just to deprive the claimant, who had expressly requested the opportunity to attend the tribunal, of the opportunity to give his evidence in person in the circumstances set out in [11] above.

13. Of course, there are a number of factors called into play, including by the terms of rule 2, and they will not all point in the same direction.  However, (c), “ensuring, so far as practicable, that the parties are able to participate fully in the proceedings”, needed to be part of that mix of factors. Balancing them would pre-eminently be a matter for the First-tier Tribunal.  But what in my judgement it was not entitled to do, but did, was to limit the factors which it considered more narrowly than its rules of procedure permitted.

14. The opportunity to hear from the claimant was capable of providing useful evidence and to do so directly as to matters which thus far had only been covered by the CAB’s submission.  The only known problem with the claimant being accompanied by his priest was the latter’s unavailability on the particular day, thus it seems likely that both would have attended a further hearing. The point is thus far from an academic one.

15.The tribunal judge in refusing permission to appeal questions whether, as the claimant had said that he was “petrified at the prospect of attending the tribunal”, he would attend even with his priest.  He also observed that “In the [considerable] experience of the tribunal religious people are often unable to attend a pre-arranged attendance at a Tribunal due to unexpected and untoward effect such as attending scenes of fatal accidents, administering Last Rites, conducting funeral services etc.”  I do not comment on these, as there is no indication in the statement of reasons or the decision notice that any of these considerations, whether or not valid, were in the tribunal’s mind when it exercised its discretion.

16. One can view the error of law as either construing the “interests of justice” in rule 31 too narrowly, with the result that the tribunal’s discretion whether to go ahead never arose in the first place, or, if a different view is taken on that point, as failing sufficiently to apply the factors required by rule 2 when considering the exercise of the discretionary power. 

17. I do not need to deal with any other error on a point of law that the tribunal may have made.  Any that were made will be subsumed by the rehearing.

18. I direct that the First-tier Tribunal must liaise with the claimant and his present representative with a view to finding a hearing date when the claimant can be accompanied by his priest or another available person by whom the claimant wishes to be accompanied.  The tribunal must conduct a complete rehearing of the issues that are raised by the appeal and, subject to the tribunal’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration.  While the tribunal will need to address the grounds on which I have set aside the decision, it should not limit itself to these but must consider all aspects of the case, both fact and law, entirely afresh.  The tribunal must not take into account any circumstances that were not obtaining at the date of the decision appealed against (4 December 2009) – see section 12(8)(b) of the Social Security Act 1998- but may take into account evidence that came into existence after the decision was made and evidence of events after the decision was made, insofar as it is relevant to the circumstances obtaining at the date of decision: R(DLA)2/01 and 3/01.

19. The above directions are subject to any further direction which may be given by a District Tribunal Judge, in particular as regards listing.

19. The fact that this appeal has succeeded on a point of law carries no implication as to the likely outcome of the rehearing, which is entirely a matter for the tribunal to which this case is remitted.

(signed)

C.G.Ward

Judge of the Upper Tribunal

3 March 2011