DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

The DECISION of the Upper Tribunal is to allow the appeal by the appellant.

 

The decision of the Colchester First-tier Tribunal dated 01 August 2011 under file reference SC132/11/00553 involves an error on a point of law. The First-tier Tribunal’s decision is set aside.

 

The Upper Tribunal is not in a position to re-make the Secretary of State’s decision under appeal. It therefore follows that the appellant’s appeal against the decision dated 21 January 2011 is remitted to be re-heard by a different First-tier Tribunal, subject to the Directions below. 

 

This decision is given under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007.

 

DIRECTIONS

 

The following directions apply to the hearing:

 

(1) The appeal should be considered at an oral hearing. 

 

(2) The new First-tier Tribunal should not involve the tribunal judge or members involved in considering this appeal on 01 August 2011.

 

(3) The appellant is reminded that the tribunal can only deal with the appeal and her circumstances (including her health) as they were at the date of the original decision by the Secretary of State under appeal (namely 21 January 2011).

 

(4) If the appellant has any further written evidence to put before the tribunal, in particular medical evidence, this should be sent to the tribunal within one month of the issue of this decision. Any such further evidence will have to relate to the circumstances as they were at the date of the original decision of the Secretary of State under appeal (see Direction (3) above). 

 

(5) In deciding what evidence to hear, the new First-tier Tribunal should bear in mind the guidance contained in both the decision in R(DLA) 3/06 (especially at paragraph 58) and in the Senior President of Tribunals’ Practice Direction on Child, Vulnerable Adult and Sensitive Witnesses.

 

(6) The new First-tier Tribunal is not bound in any way by the decision of the previous tribunal. Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome to the previous tribunal.

 

 

 

These Directions may be supplemented by later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal.

REASONS FOR DECISION

 

The Upper Tribunal’s decision in summary

1. The appellant’s appeal to the Upper Tribunal is allowed. The decision of the First-tier Tribunal involves an error on a point of law. For that reason I set aside the tribunal’s decision.

 

2. The case now needs to be reheard by a new First-tier Tribunal (FTT). I cannot predict what will be the outcome of the re-hearing. The fact that this appeal to the Upper Tribunal has succeeded on a point of law is no guarantee that the re-hearing of the appeal before the new FTT will succeed on the facts.

 

The background to this appeal

3. The appellant, S, is a girl now aged 15. She has the misfortune to suffer from chronic fatigue syndrome/ME. She was aged 13 when the claim for disability living allowance (DLA) was made and just 14 when the FTT heard her appeal against the Secretary of State’s disallowance of that claim.

 

The proceedings before the First-tier Tribunal

4. The FTT heard S’s appeal on 1 August 2011.  The length of the hearing is unclear from the FTT’s record of proceedings. However, it is plain from the statement of reasons that S was extensively questioned in the course of the hearing about what she could and could not do. The FTT dismissed the appeal.

 

5. S’s mother and appointee applied for permission to appeal to the Upper Tribunal. She argued that the “conduct and questioning of the panel was misleading”. She added:

 

“Also S came to the hearing with me, and because of this the Tribunal asked her all the questions. I feel the conduct and questioning of the panel was misleading to S, she is only just 14 and didn’t get things right or say when they had happened, when I tried to add that this was not right, I was asked not to talk. I feel the tribunal should have been asking me these questions.”

 

6. The District Tribunal Judge refused that application for permission to appeal, commenting that “the Tribunal was chaired by a tribunal judge who was for many years a family practitioner with more experience than most in dealing with minors in a formal context”.

 

The proceedings before the Upper Tribunal

7. S’s mother renewed her application to the Upper Tribunal. She explained that she felt it was a mistake to interview S about her condition: “S is a minor, she tries her utmost to look on the bright side as any young girl would. She doesn’t think about her ME all the time as she has lived with the pains, dizziness, feeling sick, fainting and headaches for nearly two years now.”

 

8. I subsequently gave permission to appeal, referring to the guidance on child witnesses contained in the decision of the Tribunal of three Social Security Commissioners (now Upper Tribunal judges) in the reported decision R(DLA) 3/06. I added:

 

“There seems, on the face of the FTT’s record of proceedings and the statement of reasons, to have been no consideration by the FTT of whether it was appropriate to proceed in the way that they did.  They also do not appear to have asked S’s mother if she had any objection to the course adopted.  Was it necessary for the FTT to give express consideration to how to proceed and to explain their reasons for doing so?”

 

9. Anna Woods, who now acts for the Secretary of State in these proceedings before the Upper Tribunal, argues that there is an error of law in the FTT’s decision as it failed to adhere to the guidance in R(DLA) 3/06. She therefore supports the appeal to the Upper Tribunal and proposes a re-hearing before a new FTT.

 

10. S’s mother has maintained her position that “it was unfair and unlawful to ask my daughter about her illness and her personal care when I am her full time carer and was asked not to speak.”

 

The Tribunal of Commissioners’ decision in R(DLA) 3/06

 

11. The Tribunal of three Social Security Commissioners in the case of R(DLA) 3/06 considered the position of children giving evidence in some detail at paragraphs 48-60 of their decision. At paragraph 58 they gave the following guidance:

 

“58. The guidance we are able to give is as follows.

 

(1) A tribunal should have proper regard to the wishes of a child of sufficiently mature years and understanding who wishes to give evidence in a DLA claim made on his behalf. However, a tribunal should be very cautious before requiring any child to give evidence, and should only call for a child to give evidence if it is satisfied that a just decision cannot otherwise be made. Before reaching such a conclusion, the tribunal should consider first all the other available evidence, and then ask itself whether any necessary additional evidence can be obtained from another source, for example, a health visitor, social worker, teacher, family member or friend, to avoid the need for the child to be called at all.

 

(2) In any event, a tribunal should be very slow to exercise its power to require a child to give evidence if that child's parent or carer takes the view that for the child to give evidence may be detrimental to the child's welfare, particularly if there is evidence from a competent professional that to do so might be harmful. It would be wholly exceptional for it to be appropriate for a tribunal to call a child in such circumstances.

 

(3) Even if it is those representing the child, rather than the tribunal, who wish the child to give evidence, as Brown indicates, a tribunal has power to disallow the child from giving evidence if it is against the child's interests to do so. If it is proposed that the child gives evidence, the tribunal must consider whether it is in that child's interests to do so.

 

(4) The tribunal should bear in mind that the mere presence of a child at a hearing is unlikely to give a reliable indication of the effect of a child's disability in normal circumstances.

 

(5) Where a decision is taken to call a child to give evidence, after submissions from interested persons (including the parents or carers of the child) a tribunal should give consideration to precisely how that evidence will be taken, so that the interests and welfare of the child are maintained, giving any directions that are appropriate. In doing so the tribunal will bear in mind that a child may perceive what is said at a tribunal hearing very differently from an adult. It will be necessary for the tribunal to identify any matters that the child ought not to hear (e.g. it will not generally be appropriate for a child to hear criticism of those responsible for his or her care) and questions that the child ought not to be asked (e.g. it will not generally be appropriate to question a child about his or her own care needs).

 

(6) In addition, where a child is to be called to give evidence, the tribunal will need to give consideration to practical matters such as the geography of the hearing room, having an appropriate adult in close attendance, whether any of the tribunal (including the chairman) should be selected because of experience in dealing with child witnesses and even (in appropriate cases) taking such steps as taking the child's evidence by video link if available, giving directions where appropriate.”

 

12. Anna Woods, for the Secretary of State, argues that in the present case there is no evidence that the FTT gave express consideration to any of the matters identified in paragraph 58(1)-(4) of R(DLA) 3/06. Furthermore, she contends that where a decision is taken to question a child, then the considerations set out in paragraph 58(5) and (6) need to be considered. She suggests that the District Tribunal Judge’s comment about the previous experience of the tribunal judge in question was just one consideration. Furthermore, S was asked directly about her care needs and appears to have struggled to answer some questions.

 

13. I agree with this analysis and so allow this appeal. Given the very clear guidance contained in R(DLA) 3/06, it was simply not good enough for the FTT to conclude that “at the hearing S was articulate with good memory and concentration”. It was also not good enough for the District Tribunal Judge to point out afterwards that the tribunal judge presiding on the FTT panel had plenty of relevant professional experience. For example, the suitability of the other FTT members in this respect is simply not known.

 

14. I accept that in general terms there can sometimes be difficulties for tribunals when carers or other family members seek to talk across both the tribunal and the person giving evidence. I also acknowledge that the particular factual circumstances in R(DLA) 3/06 were somewhat unusual, if not extreme. In that case the foster parent and appointee of a 12 year old with learning difficulties and behavioural problems did not arrange for her to attend a hearing, despite a witness summons, and the appeal tribunal then drew an adverse inference from her non-attendance – notwithstanding the view of relevant professionals that attendance might itself have an adverse effect on her.

 

15. However, there is no suggestion in R(DLA) 3/06 that the Tribunal of Commissioners was confining its comments to the rather peculiar circumstances of that case. The guidance was quite clearly designed to be of general application (see paragraph 57 of the Commissioners’ decision). Although couched in terms of “guidance”, the Tribunal of Commissioners set out important procedural considerations which the FTT in the present case comprehensively ignored. That was a plain error of law which means I must allow this appeal and set the FTT’s decision aside.

 

16. Furthermore, just as the FTT’s decision ignored the guidelines laid down by the Tribunal of Commissioners in R(DLA) 3/06, the tribunal also managed to ignore a highly relevant Practice Direction issued by the Senior President of Tribunals with the agreement of the Lord Chancellor. The Practice Direction in question, made on 30 October 2008 under section 27 of the Tribunals, Courts and Enforcement Act 2007, reads as follows:

 

 PRACTICE DIRECTION

FIRST TIER AND UPPER TRIBUNAL

CHILD, VULNERABLE ADULT AND SENSITIVE WITNESSES

 

1. In this Practice Direction:

a. “child” means a person who has not attained the age of 18;

b. “vulnerable adult” has the same meaning as in the Safeguarding Vulnerable Groups Act 2006;

c. “sensitive witness” means an adult witness where the quality of evidence given by the witness is likely to be diminished by reason of fear or distress on the part of the witness in connection with giving evidence in the case.

 

CIRCUMSTANCES UNDER WHICH A CHILD, VULNERABLE ADULT OR SENSITVE WITNESS MAY GIVE EVIDENCE

2. A child, vulnerable adult or sensitive witness will only be required to attend as a witness and give evidence at a hearing where the Tribunal determines that the evidence is necessary to enable the fair hearing of the case and their welfare would not be prejudiced by doing so.

 

3. In determining whether it is necessary for a child, vulnerable adult or sensitive witness to give evidence to enable the fair hearing of a case the Tribunal should have regard to all the available evidence and any representations made by the parties.

 

4. In determining whether the welfare of the child, vulnerable adult or sensitive witness would be prejudiced it may be appropriate for the Tribunal to invite submissions from interested persons, such as a child’s parents.

 

5. The Tribunal may decline to issue a witness summons under the Tribunal Procedure Rules or to permit a child, vulnerable adult or sensitive witness to give evidence where it is satisfied that the evidence is not necessary to enable the fair hearing of the case and must decline to do so where the witness’s welfare would be prejudiced by them giving evidence.

 

MANNER IN WHICH EVIDENCE IS GIVEN

6. The Tribunal must consider how to facilitate the giving of any evidence by a child, vulnerable adult or sensitive witness.

 

7. It may be appropriate for the Tribunal to direct that the evidence should be given by telephone, video link or other means directed by the Tribunal, or to direct that a person be appointed for the purpose of the hearing who has the appropriate skills or experience in facilitating the giving of evidence by a child, vulnerable adult or sensitive witness.

 

8. This Practice Direction is made by the Senior President of Tribunals with the agreement of the Lord Chancellor. It is made in the exercise of powers conferred by the Tribunals, Courts and Enforcement Act 2007.

 

17. The FTT’s failure in the present case to consider the overriding objective of dealing with the case fairly and justly in the light of the requirements of, for example, paragraphs 2, 3, 4 and 6 of the Practice Direction compounds the error of law in ignoring R(DLA) 3/06.

 

18. Finally, the FTT’s three-page decision was written without any paragraph numbering. As such it does not comply with the Practice Statement issued by the Senior President of Tribunals on 31 October 2008, Form of Decisions and Neutral Citation: First-Tier Tribunal and Upper Tribunal on or after 3 November 2008. Compliance with this Practice Statement is not optional (see JW v Secretary of State for Work and Pensions (ESA) [2011] UKUT 416 (AAC) at paragraphs 25-28).

 

What happens next: the new First-tier Tribunal

19. There will need to be a fresh hearing of the appeal before a new FTT. Although I am setting aside the FTT’s decision, I should make it clear that I am making no finding, nor indeed expressing any view, on whether or not S is entitled to DLA. That is a matter for the good judgement of the new tribunal. That tribunal must review all the relevant evidence and make its own findings of fact. 

 

20. In doing so, the new FTT will have to focus on the appellant’s circumstances as long ago as at 21 January 2011. This was the date of the Secretary of State’s original decision under appeal. The appellant’s condition as at the date of the new hearing (e.g. perhaps later in 2012 or early in 2013) is not directly relevant to the re-hearing. This is because of section 12(8)(b) of the Social Security Act 1998. This states that a tribunal “shall not take into account any circumstances not obtaining at the time when the decision appealed against was made” (emphasis added). For this reasons the further evidence sent in by S’s mother may carry only limited weight as those letters appear to focus on the position as it was in the summer of 2012.

 

Conclusion

21. I conclude that the decision of the First-tier Tribunal involves an error of law.  I allow the appeal and set aside the decision of the tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)). The case must be remitted for re-hearing by a new tribunal subject to the directions above (section 12(2)(b)(i)). My decision is also as set out above.

 

22. I just repeat that the fact that this appeal to the Upper Tribunal has succeeded should not be taken as any indication either way as to the likely outcome of the re-hearing before the First-tier Tribunal.

 

 

 

 

 

Signed on the original Nicholas Wikeley

on 24 September 2012 Judge of the Upper Tribunal