Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CE/997/2012

ADMINISTRATIVE APPEALS CHAMBER

 

Before Upper Tribunal Judge Rowland

 

Decision:  The Secretary of State’s appeal is allowed.  The decision of the First-tier Tribunal dated 22 September 2011 is set aside and the case is remitted for determination by a differently-constituted panel of the First-tier Tribunal.

 

 

REASONS FOR DECISION

 

1. This is an appeal, brought by the Secretary of State with permission granted by Upper Tribunal Judge Turnbull, against a decision of the First-tier Tribunal dated 22 September 2011, whereby it allowed an appeal against the Secretary of State’s decision dated 3 December 2010, superseding an award of employment and support allowance and deciding that the claimant was not entitled to the allowance from that date because she did not have limited capability for work.  Although the First-tier Tribunal accepted that the claimant did not have a limited capability for work, it held that she should be treated under regulation 29 of the Employment and Support Allowance Regulations 2008 (SI 2008/794) as though she did have a limited capability for work.

 

2. Regulation 29(1) and (2)(b) provides –

 

“29.—(1) A claimant who does not have limited capability for work as determined in accordance with the limited capability for work assessment is to be treated as having limited capability for work if paragraph (2) applies to the claimant.

  (2) This paragraph applies if—

(a)  …; or

(b)  the claimant suffers from some specific disease or bodily or mental disablement and, by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work.”

 

3. The claimant is a former nurse who suffers from spondylolisthesis. She was 30 years old at the time of the First-tier Tribunal’s decision and has been living in the Republic of Ireland since before the date of her claim for employment and support allowance in 2009.  She was awarded employment and support allowance with effect from 21 June 2009 and then asked to complete a questionnaire and attend a medical examination in Dublin.  In the light of the medical report, the Secretary of State concluded that she scored only 6 points for the purposes of a limited capability for work assessment under Schedule 2 to the 2008 Regulations (accepting that she “cannot stand for more than 30 minutes, even if free to move around, before needing to sit down”) and so made the decision against which the claimant appealed.  The First-tier Tribunal, comprised of a fee-paid judge and a doctor, allowed the appeal on 22 September 2011, agreeing with the Secretary of State as to the assessment but finding that regulation 29(2)(b) was satisfied.  In the statement of reasons subsequently provided by the judge at the request of the Secretary of State, it was stated –

 

“15. The Tribunal then went on to consider Regulation 29 (exceptional circumstances).  The Tribunal decided that 29(2)(b) applied in this case.  In light of all the evidence the Tribunal finds that (the appellant) suffers from a specific bodily disablement and, by reason of that disablement, there would be a substantial risk to the physical health of any person if (she) were found capable of work.  The risk has to be assessed in relation to the type of work for which the appellant would otherwise be required to be available.  It involves a consideration of the risk involved in the general type of work that the appellant is qualified, experienced or skilled to undertake.  She would be unable at the date of the decision to resume her nursing career without substantial [risk] to her own health or that of her patients.

 

16. The appellant can, therefore, be treated as having Limited Capability for Work and is entitled to ESA from 3 December 2010.”

 

4. Having obtained that statement of reasons, the Secretary of State applied for permission to appeal under section 11 of the Tribunals, Courts and Enforcement Act 2007 or, in the alternative, a review of the decision under section 9 of that Act, on the ground that the decision of 22 September 2011 was wrong in law because the First-tier Tribunal had failed to give proper consideration to any work other than nursing for which the claimant might be suitably qualified or experienced.

 

5. The response of the district (i.e. salaried) judge considering that application appears to have been to refer the case to the fee-paid judge who had presided when the original decision was made.  The fee-paid judge provided an “amended statement of reasons for decision” which was really a statement of amendment, dated 20 January 2012.  That was issued to the parties at the same time as a decision of the district judge, dated 1 February 2012, reviewing the original decision on the ground that it was wrong in law because “insufficient reasons were given to explain the decision”.  The statement of amendment added to the original paragraph 15 –

 

“The appellant’s General Practitioner has stated that there is no chance of the appellant resuming nursing practice ‘of any description’ for a minimum period of 6-12 months.  The Tribunal has taken into account that the appellant has undergone extensive tests and investigations including MRI scans and X-rays, an intensive course of physiotherapy, is on strong (morphine based) painkillers and has been referred to a pain specialist.  Relying on their knowledge of the effects of the appellant’s medical condition the Tribunal Judge and Medical Member decided that it was highly unlikely that the appellant would be considered fit to undertake any kind of work at the date of the decision under appeal and that there would be a substantial risk to her health if she were found not to have Limited Capability for Work.”

 

The statement said that the amendment was “a reflection of the consideration of the tribunal as a whole”.  The parties were informed in directions accompanying the district judge’s decision that they had “1 month from the date of the amended Statement of Reasons being issued to make an application for permission to appeal to the upper tribunal”.

 

6. The Secretary of State again applied for permission to appeal but also pointed out that the First-tier Tribunal had failed to inform the parties, as it was required to do under rule 40(4) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) 2008 (SI 2008/2685), that they could apply under rule 40(4) for the amendments to be set aside and for the original decision to be reviewed again and, in the alternative, he requested such a setting aside and further review.

 

7. On 17 February 2012, the district judge directed as follows –

 

“Please return the application to the Secretary of State.

 

Further to section 9(10) Tribunals, Courts and Enforcement Act 2007 this decision cannot be reviewed again.  It can only be reviewed once and that has happened.

 

Application has to be made direct to the Upper Tribunal.”

 

The covering letter sent by the clerk with a copy of those directions informed the Secretary of State that the district judge had refused permission to appeal, whereas he had declined to consider the application.

 

8. In any event, the Secretary of State did make an application to the Upper Tribunal, which Judge Turnbull granted.  Judge Turnbull did not allude to the fact that the First-tier Tribunal judge had not refused permission to appeal, but either the application to the First-tier Tribunal had “not been admitted” for the purpose of rule 21(2)(b) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) or the requirement under rule 21(2)(b) to await a refusal of permission could have been waived (it being implicit in rule 7(1) that the requirement can be waived if insisting on it would serve no purpose) and should now be taken to have been waived.

 

9. The Secretary of State’s grounds of appeal are the same as those raised before the First-tier Tribunal.  Understandably, the claimant has not addressed the points of law, but she has provided further medical evidence and sought to explain how disabled she is.

 

10. Before I turn to the substantive issues, I should say something about the procedure adopted by the First-tier Tribunal in response to the applications for permission to appeal.  In my judgment, it was thoroughly unsatisfactory although, in mitigation, it can be said that the legislation is unnecessarily complicated and, I would respectfully suggest, matters are not made easier by the Senior President of Tribunals’ Practice Statement on the Composition of Tribunals in Social Security and Child Support Cases in the Social Entitlement Chamber on or after 3 November 2008.

 

11. Section 9(1) of the 2007 Act confers on the First-tier Tribunal a power to review its decisions but is, by subsection (3), made subject to Tribunal Procedure Rules which can, of course, also make procedural provision.  Rule 40(2) to (3) of the First-tier Tribunal Rules provides –

 

 “(2) The Tribunal may only undertake a review of a decision—

(a)  pursuant to rule 39(1) (review on an application for permission to appeal); and

(b)  if it is satisfied that there was an error of law in the decision.

  (3) The Tribunal must notify the parties in writing of the outcome of any review, and of any right of appeal in relation to the outcome.

  (4) If the Tribunal takes any action in relation to a decision following a review without first giving every party an opportunity to make representations, the notice under paragraph (3) must state that any party that did not have an opportunity to make representations may apply for such action to be set aside and for the decision to be reviewed again.”

 

12. Section 9(4), (5), (10) and (11) of the 2007 Act provides –

 

 “(4) Where the First-tier Tribunal has under subsection (1) reviewed a decision, the First-tier Tribunal may in the light of the review do any of the following—

(a)  correct accidental errors in the decision or in a record of the decision;

(b)  amend reasons given for the decision;

(c)  set the decision aside.

  (5) Where under subsection (4)(c) the First-tier Tribunal sets a decision aside, the First-tier Tribunal must either—

(a)  re-decide the matter concerned, or

(b)  refer that matter to the Upper Tribunal.

…

  (10) A decision of the First-tier Tribunal may not be reviewed under subsection (1) more than once, and once the First-tier Tribunal has decided that an earlier decision should not be reviewed under subsection (1) it may not then decide to review that earlier decision under that subsection.

  (11) Where under this section a decision is set aside and the matter concerned is then re-decided, the decision set aside and the decision made in re-deciding the matter are for the purposes of subsection (10) to be taken to be different decisions.”

 

13. Paragraph 11 of the Senior President of Tribunals’ Practice Statement says –

 

“11. The determination of an application for permission to appeal under rule 38 of the 2008 Rules and the exercise of the power of review under section 9 of the Tribunals, Courts and Enforcement Act 2007 must be carried out –

a.   where the Judge who constituted or was a member of the Tribunal that made the decision was a fee-paid Judge, by a salaried Tribunal Judge; or

b.   where the Judge who constituted or was a member of the Tribunal that made the decision was a salaried Judge, by that Judge or, if it would be impracticable or cause undue delay, by another salaried Tribunal Judge,

save that, where the decision is set aside under section 9(4)(c) of the Act, the

matter may only be re-decided under section 9(5)(a) by a Tribunal composed

in accordance with paragraph 4, 5 or 6 above.”

 

14. Although I accept that the First-tier Tribunal may “amend” reasons under section 9(4)(b) by adding to them, it seems to me that the addition must do no more than provide reasons that were contemplated by the First-tier Tribunal before the original statement of reasons was issued but were omitted from the statement of reasons either accidentally or simply through the statement being badly expressed.  If the First-tier Tribunal in truth overlooked a point but would have reached the same conclusion had it not done so, the proper procedure is not to amend the reasons but to set the decision aside under section 9(4)(c) and then re-decide the matter under section 9(5)(a).  In my judgment, dealing with an additional point requires the First-tier Tribunal to do more than simply “amend” its reasons.

 

15. Where a salaried judge constituted the First-tier Tribunal when the original decision was made, it is easy enough for him or her to correct a decision or amend reasons and there will be cases where he or she can also properly re-decide the case, so as to deal with an overlooked point, without obtaining further representations from the parties or holding a hearing, particularly where the parties did not ask for a hearing in the first place.  Matters are more complicated if the original decision was made by a panel that included other members and that decision must be re-decided, since the First-tier Tribunal must be similarly constituted when re-deciding a case (see the “saving” at the end of paragraph 11 of the Practice Statement).  However, modern communications can make it unnecessary for a panel to reconvene in the same place.

 

16. Matters are even more complicated if the original decision was made by a fee-paid judge or a panel presided over by a fee-paid judge.  Paragraph 11 of the Practice Statement requires any review to be carried out by a salaried judge but often only the judge who made or presided over a panel making the original decision knows whether or not reasons can properly be amended under section 9(4)(b).  Moreover, where the reasons cannot properly be amended and it is necessary for a case to be re-decided in order to deal with an additional point, it appears that that cannot be done by a fee-paid judge or a panel presided over by a fee-paid judge due to the effect of paragraph 11 of the Practice Statement with its “saving”.  (Paragraph 5, which applies in this case, is made subject to paragraph 11.) It is clear enough why that should be so where a decision ought to be referred to a different judge or a differently-constituted panel, but the Practice Statement has the effect that a case can never be referred back to the same judge or panel where the judge or presiding judge was fee-paid and a point has simply been overlooked and needs addressing.  Perhaps it is considered to be administratively simpler not to involve fee-paid judges in this way, but the consequence is that, if a point has been overlooked, the whole case must be reconsidered by a salaried judge or a panel presided over by a salaried judge.  There may still be cases where, even though differently constituted, the First-tier Tribunal and can properly deal with the additional issue without obtaining further representations from the parties or holding a hearing because it can properly adopt most of the original decision, but careful thought needs to be given to whether that really is appropriate in any given case.

 

17. In any event, important practical consequences flow from the distinction between amending reasons on one hand and, on the other hand, re-deciding a case so as to deal with an additional point.  If a matter is re-decided, the new decision is a separate decision by virtue of section 9(11) that can itself be reviewed and be the subject of an appeal; whereas, when reasons are amended, that merely has the effect of extending the time for applying for permission to appeal against the original decision as amended (see rule 38(3)(b) of the First-tier Tribunal Rules) and a further review is precluded by section 9(10).

 

18. In the present case, the Secretary of State was right to point out that the notice of the decision was inadequate if the review decision was a mere amendment rather than a setting aside followed by a re-deciding of the matter.  However, the district judge was right to draw attention to the tension between section 9(10) and rule 40(4) of the First-tier Tribunal Rules.  It may be that the latter should be read as though “the decision to be reviewed again” were “alternative action to be taken”. 

 

19. However, having decided that no further action under section 9 was possible, the district judge clearly erred on 17 February 2012 in refusing to consider the subsequent application for permission to appeal.  Where the First-tier Tribunal reviews a decision instead of granting (or refusing) permission to appeal, no action is taken on the permission to appeal and there is no reason why a new application for permission to appeal to the Upper Tribunal should not be made to the First-tier Tribunal, as is required by rule 21(2)(b) of the Upper Tribunal Rules, either against the original decision if it has been amended or against the new decision if the case has been re-decided.  The information in the directions of 1 February 2012 was ambiguous.  If “to the upper tribunal” described “appeal”, it was accurate but failed to state to where the application should be made; if those words qualified “make an application” as the judge’s subsequent actions suggests he intended, it was inaccurate.

 

20. Were it important to decide whether or not the amendment made in this case properly fell within the scope of section 9(4)(b), I would find that it did not because it seems to me to be most unlikely that the question whether the claimant would be expected to be available for work other than nursing was considered by the First-tier Tribunal before the statement of reasons was issued.  That was a more difficult question than the question whether there would be a risk to her health or that of her patients if she went back to nursing, and it seems most unlikely that the judge would have included the reasons for the panel’s decision on the simple issue and forgotten about the more difficult issue.  Moreover, if the panel had considered the more difficult issue at the time, better reasons would probably have been given, explaining how its decision was consistent with its findings on the limited capacity for work assessment. 

 

21. However, as I am satisfied that the First-tier Tribunal’s decision is erroneous in point of law whichever of the two versions of the statements of reasons is considered, the question whether the procedure leading to the second version was flawed does not strictly need to be answered.  

 

22. If, as seems likely, the First-tier Tribunal considered only whether there would be a substantial risk to the claimant’s health or that of her patients if she returned to nursing, it clearly erred in law because regulation 29(2)(b) requires consideration to be given simply to whether there would be a substantial risk to the health of anyone if the claimant were found not to have limited capability for work.  Linguistically, the legislation can be confusing but, in its context, it is clear that what is meant by not having limited capability for work is not that the person’s capacity for work is not limited but that the limitation is not sufficiently severe for the person to be entitled to employment and support allowance rather than jobseeker’s allowance.  The implication is that it is generally thought that those who do not have limited capability for work are generally capable of undertaking some sort of work.  A finding that a person does not have a limited capability for work does not imply an expectation that he or she might be expected to return to any particular sort of employment, such as nursing.

 

23. If, on the other hand, the First-tier Tribunal really did consider whether there would be a risk to the claimant’s health if she were to undertake any work that she might otherwise reasonably have been expected to do, it has failed to give adequate reasons for that conclusion even with the amendment.  Saying that the panel had relied on “their knowledge of the effects of the appellant’s medical condition” was too vague in the context of this case, in which there is no indication in the evidence as to what effects it might have had in mind and there is also no indication as to the types of work the panel considered or, most importantly what the substantial risk to health would have been.

 

24. I do not say that the First-tier Tribunal was not entitled to reach the conclusion it did; only that it either failed to ask itself the correct question or else has not given adequate reasons for its decision.  Although it is unlikely that he claimant will attend a hearing if the case is remitted to the First-tier Tribunal, I consider that I should not substitute my own decision for that of the First-tier Tribunal but should remit the case so that it can be decided by a panel including a doctor among as well as a judge.

 

 

 

 

 

Mark Rowland

27 November 2012