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 Fox Court First-tier Tribunal dated 28 October 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 7 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 made on 19 March 2010 to supersede the decision awarding the claimant employment and support allowance (ESA) from and including 8 January 2010, on the ground of receipt of a report from an approved healthcare professional, and to decide that she was no longer entitled to ESA from and including 19 March 2010. At the time of the award she was said to be suffering from depression, musculoskeletal problem, hearing problem and bladder incontinence. According to the report from Mrs Thomas, the registered nurse who examined the claimant on 9 March 2010, the claimant mentioned the same problems, although unfortunately pages 4 and 12 of the report (pages 44 and 52 of the papers before the First-tier Tribunal) are missing. In the claimant’s appeal a letter dated 27 October 2010 from Dr Eileen Walsh, a clinical psychologist at The Traumatic Stress Clinic (part of Camden and Islington NHS Foundation Trust), was produced which recorded a diagnosis of post-traumatic stress disorder relating to multiple traumatic events in the claimant’s home country of Kosovo. The letter mentioned chronic untreated symptoms for the previous ten years, with a history of suicidal behaviour.

2. The claimant attended the tribunal hearing on 28 October 2010. The tribunal disallowed the appeal. In its statement of reasons the tribunal preferred Mrs Thomas’s report to Dr Walsh’s evidence and said that in assessing the claimant’s evidence it had given more weight to her oral evidence as it had had the opportunity to elicit further information by putting questions to her. It concluded that the evidence did not support a significant level of functional impairment and that the claimant did not reach the threshold of scoring any points under physical or mental descriptors. The paper record of proceedings (page 82) merely recorded the names of those present and the receipt of six pages of medical evidence and had this stamped on it:

“In accordance with Practice Statement Record of Proceedings in Social Security and Child Support Cases in the Social Entitlement Chamber the presiding member, or in the case of a Tribunal composed of only one member that member, has determined that the record of proceedings shall be made by being digitally recorded.”

The claimant’s representative, Helen Sheldon of Mary Ward Legal Centre, had requested a copy of the record of proceedings when requesting the statement of reasons.

3. When giving permission to appeal on 6 February 2012 (unfortunately not issued by the Upper Tribunal (AAC) office until 19 April 2012: an exceptionally long delay even by comparison with the general administrative difficulties being suffered at the time), I said this:

“1.  In the light of the reason given by the First-tier Tribunal judge for refusing permission to appeal (that the tribunal made findings of fact on the basis of the evidence before it at the hearing) and the statement by the same judge on the paper record of proceedings (page 82) that in accordance with the (Senior President of Tribunals’) Practice Statement Record of Proceedings in Social Security and Child Support cases in the Social Entitlement Chamber she had determined that the record was to be made by being digitally recorded, I instructed the Upper Tribunal (AAC) office to write to the relevant Administrative Support Centre for a copy of the digital recording. The letter of request was sent on 16 November 2011. When the clerk concerned telephoned the ASC on 2 February 2012 to check what had happened (I think following a query from the claimant’s representative as to progress) he was told that the letter had been received, but that no action had been taken and that they could not explain why not. The clerk was promised a call back on the same day, but no further communication has been received.

 2.  In those circumstances, I am not prepared to wait any longer. The claimant’s representative had requested a copy of the record of proceedings when requesting a statement of reasons in the letter dated 8 December 2010. So far as I can tell nothing other than the paper record at page 82 has been provided. The statement of reasons was issued on 4 June 2011, the application to the First-tier Tribunal for permission to appeal was made in a letter dated 28 June 2011 and permission was refused on 5 August 2011. It appears that the Senior President’s Practice Statement … was breached by the failure to provide the claimant’s representative with a copy of a record of the proceedings kept in the medium determined by the tribunal judge. It may also have been breached by a failure to preserve the record for the period specified in the Practice Statement, as evidenced by the failure to produce a copy to the Upper Tribunal within a reasonable time of the request. That is sufficient to indicate that the tribunal’s decision involved an error of law. The failure to provide a record of proceedings has made it impossible to judge whether the tribunal’s findings of fact were supported by the evidence given at the hearing on 28 October 2010.”

Paragraph 2 of the Practice Statement signed by Lord Justice Carnworth on 30 October 2008 requires a record of proceedings to be kept by the presiding member and paragraph 3 allows the record to be kept in such medium as that member determines. Paragraphs 4 and 5 require the record to be kept by the Tribunal for six months from a variety of dates including the date of determination of an application for permission to appeal. Paragraph 6 requires the provision of a copy of the record to a party on written application within the time specified for retention.

4. In the short submission dated 2 May 2012 a representative of the Secretary of State agreed that the tribunal had erred in law and suggested that the case be remitted to a new tribunal. The representative submitted that it could properly be inferred from the failure to produce a copy of the record of proceedings either to the claimant’s representative or to the Upper Tribunal that the record had not been preserved. It was noted that among the tribunal’s reasons for attaching little weight to Dr Walsh’s letter were that she had only seen the claimant once and that the claimant had not been referred to the clinic by her GP, and that both those things had been shown to be false in a further letter from Dr Walsh dated 20 June 2011. It was submitted that in the absence of a record of proceedings it was impossible to see why the tribunal made those assumptions, as there appeared to be nothing in the documents before the tribunal on 28 October 2010 to warrant them, so that there was an error of law. Ms Sheldon had no further comments in her reply dated 24 May 2012.

5. I agree with the Secretary of State that in the circumstances the failure of the First-tier Tribunal to preserve or produce the record of proceedings rendered inadequate the reasons given by the tribunal of 28 October 2010 in the statement signed on 31 May 2011. The inadequacy is in the parties and the Upper Tribunal being unable to see the basis for the assumptions mentioned in the previous paragraph and for the claimant’s oral evidence at the hearing being found to be unsupportive of her case. That is a material error of law requiring the setting aside of the tribunal’s decision

6. I do not then need to decide whether a breach of the Senior President’s Practice Statement in and of itself constitutes an error of law. The Practice Statement was not made under any specific statutory power. Nor do the Tribunals, Courts and Enforcement Act 2007 or the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 contain any requirement to keep a record of proceedings. Nevertheless, there is no doubt an obligation deriving from the judicial nature of the tribunal judge’s role to keep a record of proceedings (see the discussion in paragraphs 8.129 to 8.131 in Jacobs, Tribunal Practice and Procedure, 2nd edition, and the authorities mentioned there), whether or not a statement of reasons is provided. Paragraph 2 of the Practice Statement might be regarded as acknowledging such an obligation and regulating how it should be carried out. I merely note here that if a tribunal judge has relied on the Practice Statement to support the making of the record in the medium of a digital recording there would be an apparent inconsistency in treating the requirements of preservation and production to the parties as not mandatory. However, the principles laid down by the Tribunal of Commissioners in R(DLA) 3/08 in relation to the obligations then contained in regulation 55 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 to make, preserve and produce a copy of a record of proceedings would have to apply a fortiori. Any failure in those obligations would only be material, so as to justify consideration of the setting aside of a tribunal’s decision on appeal, if it resulted in a real possibility of unfairness or injustice, which category would include the giving of inadequate reasons in a statement of reasons.

7. The decision of the tribunal of 28 October 2010 is accordingly set aside. The claimant's appeal against the Secretary of State's decision of 19 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 28 October 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 28 October 2010. That evidence will include the documents produced with the claimant’s application to the First-tier Tribunal for permission to appeal and may of course include oral evidence from the claimant’s daughter if she wishes her to attend and to give evidence. I do not need to give any directions of law about the conditions of entitlement to ESA or the interpretation of the descriptors applicable at the relevant time. 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: 15 August 2012