Title: ML v Secretary of State for Work and Pensions [2012] UKUT 19 (AAC) (17/01/2012) ~Tribunal procedure and practice (including UT)~evidence~~
Subject: A4 Minute
Author: sln330039
Last saved by: joe.ury
Company: SCS

ML v Secretary of State for Work and Pensions (ESA)
[2012] UKUT 503 (AAC)

Case No:CSE/555/2011

ML v Secretary of State for Work and Pensions (ESA)
[2012] UKUT 503 (AAC)

THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

DECISION OF THE UPPER TRIBUNAL JUDGE

The appeal is allowed.

Permission to appeal was given by a District Tribunal Judge.  The decision of the First-tier Tribunal sitting in Stranraer on 1 July 2011 (the tribunal) is wrong in law.  I set aside the tribunal’s decision and return the appeal to a new tribunal for a wholly fresh hearing.   The Upper Tribunal is not in a position to remake the decision under appeal as further findings of fact are required.  The appeal is not supported by the Secretary of State but, for the reasons set out below, in my judgement, the tribunal erred in law.

REASONS FOR DECISION

Undertaking  a “view” of a place

1.	In issue before the tribunal (in addition to descriptor 3(c) for bending or kneeling, which the tribunal awarded) was descriptor 1(d) of the Employment and Support Allowance Regulations 2008 (before amendment on March 28 2011):

	“Cannot walk more than 100 metres on level ground without stopping or severe discomfort”. 	

2.	In its statement of reasons, the tribunal recorded that the claimant and her representative told the tribunal that she was in discomfort as soon as she began to walk and would have to stop after 50 metres before continuing.  The tribunal’s statement of reasons for its decision then continues thus:

	“During the Tribunal Hearing the Appellant said that she had habitually walked from her home (in Bowling Green Road, Stranraer) to Morrisons.  It was maintained that this was approximately 100 metres.  This was the distance that both the Appellant and her representative said that she could walk albeit after a brief stop after 50 metres or so.
	…

	Both the Appellant and her representative had said that the distance between her home and Morrisons was 100 yards and that she, the Appellant, could walk this distance but no further.   The question could be answered by finding out whether the distance between her home and Morrisons was, in fact, 100 yards.  Given that the Appellant was in much better health and could walk now without any obvious difficulty we felt that the best way of testing the matter as at the date of decision was to actually go and see whether the distance was in fact 100 yards.

	I, as Judge, felt that as a matter of fairness to the Appellant and her representative it would be appropriate to invite either on or both of them to join us for the site visit and having checked with the Clerk that although this was unusual it was not contrary to any known rule of procedure I duly asked both the Appellant and [the claimant’s representative], whether they were happy to go with us.  Neither in any way demurred and indeed [the representative] said that that would be perfectly all right.  We duly took the trip to West Bowling Street and back via Morrisons.  At no point did we stop or get out of the car.  The total journey took approximately 12 minutes.  It was discovered that the distance between West Bowling Street and Morrisons was 539 yards.

	…

	The question has arisen as to whether it was appropriate to have a site visit and if so whether the Appellant and/or her representative should have been asked to accompany us on such visit.  In my judgement a Tribunal has an inquisitorial function and the object of the exercise is, fundamentally, to try and ascertain as far as possible the  reliability of what is being maintained.  The Courts are more reluctant to have site visits because the Court system is adversarial rather than inquisitorial but I personally have been involved in one such visit (to a local aerodrome) and the Sheriff determined that all parties should attend so that justice was seen to be done.  Had the geography been known to either the medical member or myself then obviously a site visit would have been unnecessary because our local knowledge would have enabled us to gauge the accuracy of the distances involved.  Obviously the Appellant and her representative may have been a little uncomfortable on the 
	return journey from Morrisons to the Tribunal because at that stage the distance had been ascertained but the conversation in the car had been neutral and agreeable especially on the way out.”

3.	It is argued on behalf of the appellant that the above procedure was, in effect, a “walking test” which tribunals are prohibited to undertake; patently, however, this is not the case because the tribunal was not watching the appellant walk and then assessing the quality and extent of her capacity to walk in the light of such observations.  Much more substantially, however, it is contended that the tribunal stopped being a judge, and became both an investigator and a witness.  The submission made on behalf of the Secretary of State to the Upper Tribunal disagrees and regards the procedure followed as an aspect of the undoubted inquisitorial function of a tribunal:

	“I submit that in this case the trip that the Tribunal embarked upon was justified in view of their need to “ascertain the facts” of the case.  The claimant’s representative has not explained why they consider that she was disadvantaged by the Tribunal participation in the fact-finding process.  It is difficult to see how it would have made any difference to the outcome if the Tribunal had adjourned and asked someone else to verify the distance between the two points.”

4.	The present case is quite different from J B v SSWP [2009] UKUT 61(AAC) where the chairman of a tribunal telephoned a doctor’s surgery to check the authenticity of documents that a claimant had produced.  There had been no consent by the parties for the tribunal chairman to do this (or even knowledge of it) so that, in effect, the judge was making himself a witness in the case in circumstances where the information which he obtained could not  be the subject of comment by the parties.  In this appeal, however, what was done had the consent of both the claimant and her representative and was carried out by the tribunal in their presence; there was nothing covert in the process.  A private view by an adjudicating body is  usually objectionable.  

5.	Even where there is no provision made by statute for a viewing, it is competent for a judge to leave the court in order to view a location.  However, if a view is taken after the leading of evidence (as here), then it requires the consent of all parties.  I appreciate that it is the Secretary of State’s policy not to send presenting officers routinely to tribunal hearings, and the absence of a presenting officer was the situation here; nevertheless, this matter is so important and so unusual that, any tribunal minded to order a view must also obtain the prior requisite consent from the Secretary of State.  The present tribunal therefore erred in not doing so.  

6.	Furthermore, the only proper rationale for a view of a location is where it is essential for the purpose of understanding the evidence but not carried out to test it.  A lawful use is, therefore, highly unlikely to arise in the social security context; it is usually deployed, for example, in a road accident case where the surrounding geographical features are confusing and require to be properly comprehended.  An analogy in social security might be where the circumstances of a possible industrial accident need to be clarified.  The tribunal, however, was not elucidating evidence: it was rather testing the accuracy of a proposition that the distance between two given points was a 100 yards.  This use of a site visit in order to confirm or challenge the evidence, rather than better to understand it, also renders the tribunal’s subsequent decision erroneous in law. 

7.	Finally, if a view is undertaken, an adjudicating authority must be meticulous in recording its exact details.  There are inconsistencies on the face of the tribunal’s statement (for example, between “100 yards” and “100 metres”), and the appellant’s representative now states other inconsistencies; the judge could not have made a note while he was driving but should have continued the record of proceedings immediately after the visit and, moreover, noted on it the comments made by the claimant and her representative about the visit taken. 

8.	Thus, while it is competent for a tribunal to carry out a view in order to clarify their understanding of the evidence, because this was not the objective in the present appeal, and because there was no consent of all the parties, and because no proper record of what the view involved or of comments made by the parties on it was produced immediately following it, I judge the tribunal erred in law.   I stress again, however, that it must be very rare indeed that all the necessary and strict constituents are present which authorise and justify a tribunal leaving its hearing room in order to view a place. 
Insufficient findings of fact and giving of reasons

8.	The representative on behalf of the Secretary of State submits that “since the claimant does not now dispute the fact that the distance between her home and the supermarket is in excess of 500 yards”, the Upper Tribunal Judge should decide the appeal.  Regrettably, I am unable to do this.  The tribunal narrated screeds of evidence but made few findings of primary fact from it.  In particular, even if the claimant did, at the relevant time, habitually walk from her home to a supermarket, a distance of 539 yards, what is important is whether and when, disablement meant she had to stop or was in severe discomfort.  If she could, in fact, in total walk such a distance, this is relevant to whether her evidence was accurate that she had to stop after 50 metres or so, but it is not conclusive;  the tribunal wrongly seemed to think that it was and therefore made no actual findings of fact about the distance the claimant could walk on level ground “without stopping or severe discomfort”.  

Summary

9.	 The appeal is therefore remitted to a new tribunal to begin again.  It is emphasised that there will be a complete rehearing on the basis of the evidence and arguments available to the new tribunal and in accordance with my guidance above, and the determination of the case on the merits is entirely for that tribunal.  Although the claimant has been successful in her appeal limited to issues of law, the decision on the facts of her case remains open.

					(Signed)
					L T PARKER
					Judge of the Upper Tribunal
					Date: 17 January 2012

CSE/555/2011