Upper Tribunal (Administrative Appeals Chamber)

THE UPPER TRIBUNAL Appeal No. CE 758 2011 

ADMINISTRATIVE APPEALS CHAMBER

GC v SSWP (CE)

DECISION

The appeal is allowed.

For the reasons below, the decision of the First-tier tribunal is set aside.

I refer the appeal to a new tribunal to decide the appeal again in accordance with the following directions.

Directions for new hearing

A The new hearing will be at an oral hearing.

B The new tribunal should not involve any judge or other member who has previously been a member of a tribunal involved in this appeal.

C The appellant is reminded that the tribunal can only deal with the appeal as at the date of the original decision under appeal.

D If the appellant has any further written evidence to put before the tribunal, this should be sent to the tribunal within one month of the issue of this decision.

These directions are subject to any later direction by a tribunal judge.

REASONS FOR DECISION

1 The claimant and appellant is appealing against a decision of the First-tier Tribunal sitting at Darlington on 2 11 2010 under reference 224 10 01289 about the appellant’s entitlement to employment and support allowance (ESA).  Permission to appeal was granted by a First-tier Tribunal judge.

2 The grounds of appeal put forward for the appellant by Durham County Council Welfare Rights were as follows. The tribunal had heard and disallowed an incapacity benefit (IB) appeal immediately before hearing this appeal. The appellant’s representative then applied for an adjournment on the ground that the tribunal had formed a view about the appellant and his credibility that would compromise a fair hearing of the later appeal. The tribunal judge heard the application, considered it, and rejected it, without consulting the medical member. It was argued that in doing so he erred in law. There were two errors: in the judge taking the decision without consulting the medical member, and in the refusal itself. I am told that there was no appeal against the IB decision.

3 I invited submissions from both parties on the appeal in the light of the following observations I made when first considering the appeal:

“8 … the decision was, according to the appellant’s representative, made by the tribunal judge alone without consulting the other member of the tribunal. It was, the representative submits, therefore not a decision of the tribunal and so was in error of law.

The constitution of the tribunal

9 The record of proceedings is ambiguous on this. The papers contain the usual formal first page of a record of proceedings of the ESA appeal, followed by pages 2 to 15 of the record of proceedings of another appeal, which I take to be the IB appeal. (It has a different and earlier appeal number). As noted, the constitution of the tribunal is recorded as having two members, Judge Pennington and a medical member. The relevant part of the record of proceedings records:

[Representative] “My view is that the judge has erred in law: it is a decision for the tribunal as a whole

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Request to adjourn rejected.”

This ambiguity is repeated in the statement of reasons. The statement of reasons records the two member constitution and (at [4]) states that “the tribunal” refused to adjourn, explaining why. There is no indication that this is a different tribunal to the tribunal that heard the substantive appeals.

10 The full answer to the question whether a tribunal is properly constituted is that the constitution must comply with the relevant Practice Statement of the Senior President of Tribunals and with any specific direction given under that Statement…

11 In this case a single judge could decide the matter under paragraph 10 of that Statement. That is, however, a “may” provision, not a “must” provision. And I can see arguments, such as those for the appellant, why the tribunal that should decide this particular application should consist of the full tribunal. One is because there may be a good reason why the medical member, having heard the IB appeal, agrees that there should be an adjournment – perhaps for some reason known only to him or her. If the tribunal judge does not consult with the other member of the tribunal then he or she will not know that. A second reason is that if the tribunal reconstitutes itself then it should produce a separate record of proceedings and decision for that reconstitution, or at the least a decision accompanied by a clear record of the reconstitution. Further, at least in theory, the decision of the single judge may be appealable separately from the decisions of the tribunal, in which case it might have to be considered out of the context of those decisions. There was no such separate decision and record here. 

Provisional conclusion

12 Taking those points together, my provisional view is that the tribunal arguably erred in either or both of two ways:

(1) it changed its constitution twice by reconstituting itself as a single member tribunal and then reconstituting itself again as a two member tribunal but failed to make any proper record of the decision made while the tribunal was comprised of a judge   alone or of the double reconstitution, and/or

(2) it failed fairly to consider the views of the medical member of both the IB appeal and the ESA appeal about the decision to adjourn the ESA appeal so failing fairly to deal with any question of prejudice to the appellant in both appeals being heard consecutively by the same tribunal, the point having been put expressly to the two member tribunal.

On that provisional view I do not have to consider separately whether there was a separate appealable decision not to adjourn. “

4 In a short written submission the appellant’s representative concurred with my provisional views in paragraph [12] above. He emphasised that this was particularly important where a tribunal was “constituted on 02 or 03 configuration” (that is, with one or two other tribunal members) and a judge took a decision without regard to that or those other members.

5 The Secretary of State’ representative, in another short written submission, also supported those points. The representative emphasised that in this case the appellant’s representative had expressly raised the point with the judge and the medical member, and challenged the view taken, so it was put directly in issue. For this reason the tribunal was in error in not giving a properly recorded and reasoned decision on the point.

6 I accept those submissions, but in doing so agree with the Secretary of State’s representative that this issue is particularly important in this case because it had been expressly put in issue and the judge’s view was expressly challenged at the time. I therefore confirm my provisional view that the decision is wrong in law on both grounds indicated, and set the decision aside.

7 I add a more general comment that there is another procedural danger in the approach taken by this tribunal in this decision. The tribunal clearly relied on its decision in the IB appeal when making its decision in the ESA appeal. In its statement of reasons for its decision in the ESA appeal it states (at [6]) that it did not propose to repeat the findings of fact in relation to the appellant’s physical or functional capability at the date of his IB appeal, although it relied on those findings. That approach runs the danger of making the statement of reasons for the decision on the ESA appeal inadequate unless both a statement of reasons was made for the earlier appeal and it is appended to, or made available with, the statement of reasons for the ESA appeal. It also creates administrative problems. However, in this case there was a statement of reasons for the IB appeal decision, and I directed a registrar of this tribunal to obtain a copy, now added to the papers. Had that statement not been available, I might have been forced to grant the appeal for reasons of inadequacy. I waived any question of irregularity in this case as the statement is now in the papers and no point was taken by either party when invited to comment.

David Williams

Upper Tribunal Judge

16 02 2012

[Signed on the original on the date stated]