CONTENTS

 

Decision of the Upper Tribunal 2

Directions. 2

Reasons for Decision. 2

A. The key issue. 2

B. How the issue arises. 3

C. Review by the First-tier Tribunal – the legislation. 4

The Act 4

The Rules. 6

The Practice Statement 8

D. Review by the First-tier Tribunal – analysis. 8

How the provisions apply in combination. 8

The meaning of ‘amend’ 13

Procedural safeguards. 15

Substantive safeguard. 15

How the salaried judge should proceed. 16

E. The additional reasons in this case. 16

F. The tribunal’s original reasons. 17

Appendix A  Statement of Reasons for Decision. 19

Appendix B  Application for Permission to Appeal 22

Appendix C  Supplemental Statement of Reasons for Decision. 24

Appendix D  Decision and Directions. 26

 

 

 

Decision of the Upper Tribunal

(ADMINISTRATIVE APPEALS CHAMBER)

As the decision of the First-tier Tribunal (made on 6 October 2011 at Durham under reference SC225/10/02598) involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 and the case is REMITTED to the tribunal for rehearing by a differently constituted panel.

Directions

A.         The tribunal must undertake a complete reconsideration of the issues that are raised by the appeal and, subject to the tribunal’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration.

B.         In particular, the tribunal must investigate and decide the claimant’s entitlement to a disability living allowance on the Secretary of State’s supersession that was made on 27 August 2010.

C.         In doing so, the tribunal must not take account of circumstances that were not obtaining at that time: see section 12(8)(b) of the Social Security Act 1998. Later evidence is admissible, provided that it relates to the time of the decision: R(DLA) 2 and 3/01.

D.         At the previous hearing, the Secretary of State’s presenting officer accepted that the tribunal need only consider the claimant’s entitlement on and from 27 August 2010. If that is not the position at the rehearing, the tribunal must follow the analysis of the revision and supersession procedures laid down by the Court of Appeal in Wood v Secretary of State for Work and Pensions (R(DLA) 1/03) and by the Tribunal of Commissioners in R(IB) 2/04. The effective date of any decision given on the supersession must be fixed in accordance with section 10(5) of the Social Security Act 1998 and, if applicable, regulation 7 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999.

Reasons for Decision

A.         The key issue

1.          Section 9(4)(b) of the Tribunals, Courts and Enforcement Act 2007 provides that, having reviewed a decision, the First-tier Tribunal may ‘amend reasons given for the decision’. We were constituted as a three-judge panel to consider the interpretation and application of that provision.

2.          We held an oral hearing on 19 February 2013 to consider this issue and are grateful for the assistance we received from the representatives of the parties: Mr Duncan Wall of Durham Welfare Rights for the claimant, Mrs S, and Mr Stephen Cooper for the Secretary of State.

B.         How the issue arises

3.          From the limited information available, it seems that Mrs S was first awarded a disability living allowance by a decision of 13 October 1993. We do know that she applied on 9 February 1994 for a review. On 12 September 1994, an adjudication officer made an award of the mobility component at the higher rate and the care component at the lowest rate from the effective date of 30 June 1994. At the time, it would have been called a life award; now it would be described as an indefinite award.

4.          In 1998, Mrs S applied for another review with the aim of increasing the rate of the care component. On 5 September 1998, an adjudication officer decided that there were grounds to review the decision making the current award, but no grounds to revise it. So her award was not changed.

5.          In 2010, the Secretary of State decided to check on the claimant’s entitlement by inviting her to complete a claim pack and obtaining a report from her GP. On medical advice, an examining medical practitioner interviewed and examined Mrs S. On 27 August 2010, the Secretary of State superseded the decision awarding the disability living allowance to Mrs S and decided that she was not entitled to an award from and including that date.

6.          Mrs S exercised her right of appeal to the First-tier Tribunal. She produced two letters from GPs at her surgery. The hearing took place on 6 October 2011. Mrs S attended and gave evidence, accompanied by Mr Wall as her representative. A presenting officer attended on behalf of the Secretary of State and conceded that the tribunal need only consider whether Mrs S was entitled to any award of disability living allowance on and from 27 August 2010. Mrs S’s case was that her health was no better, and in fact worse, than it had been on 12 September 1994. On that basis, a finding that she was not entitled to disability living allowance in August 2010 was consistent with the Secretary of State’s decision that the decision 12 September 1994 had been made in ignorance of a material fact under regulation 6(1)(b)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI No 991). This ground for supersession does not fall within regulation 7 of those Regulations, so the effective date was the date of the supersession decision: section 10(5) of the Social Security Act 1998. The tribunal decided that Mrs S was not entitled to a disability living allowance on and from 27 August 2011 and so dismissed her appeal.

7.          Mr Wall applied for the tribunal to provide its reasons. Judge Gardner, the fee-paid judge who presided at the hearing, provided the written reasons that we set out in Appendix A. Mr Wall wrote in response to those reasons on 8 November 2011; we set out his letter in Appendix B.

8.          The First-tier Tribunal’s file does not show what happened next. But we have interrogated the tribunal’s GAPS database, which is a little more revealing. The administration referred the letter to a district tribunal judge on 10 November 2011. There is no record of any contact, in writing or by telephone, with Judge Gardner. But there must have been some contact, because that judge produced additional reasons, signing them on 24 November 2011. We set them out in Appendix C. On 28 November 2011, the administration referred these reasons to a district tribunal judge, saying: ‘An amended statement of reasons has now been received from Judge Gardner. File referred to you as requested for further consideration of the leave to appeal request.’ Judge Moss then made a decision on 16 December 2011. It is reasonable to infer that it was Judge Moss who was the district tribunal judge throughout. We set out his decision in Appendix D; we have corrected the inaccuracies and tidied some of the inelegances that reflect the busy workload of a salaried judge. As he envisaged, his decision and the additional reasons were issued together on 19 December 2012.

9.          What we do know is that Judge Moss did not give the parties an opportunity to make representations at any stage. As we explain, in our view that was inappropriate and unfortunate.

10.       Mr Wall applied for permission to appeal against the decision of 6 October 2011 on the ground that the amended reasons were not validly made, because there had been no review. Judge Connell gave permission to appeal.

C.         Review by the First-tier Tribunal – the legislation

11.       The First-tier Tribunal’s review power is governed by the Tribunals, Courts and Enforcement Act 2007, the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI No 2685) and the Senior President’s Practice Statement on Composition of Tribunals in Social Security and Child Support Cases in the Social Entitlement Chamber on or after 3 November 2008.

The Act

12.       Section 9 provides for review:

9 Review of decision of First-tier Tribunal

(1) The First-tier Tribunal may review a decision made by it on a matter in a case, other than a decision that is an excluded decision for the purposes of section 11(1) (but see subsection (9)).

(2) The First-tier Tribunal’s power under subsection (1) in relation to a decision is exercisable—

(a) of its own initiative, or

(b) on application by a person who for the purposes of section 11(2) has a right of appeal in respect of the decision.

(3) Tribunal Procedure Rules may—

(a) provide that the First-tier Tribunal may not under subsection (1) review (whether of its own initiative or on application under subsection (2)(b)) a decision of a description specified for the purposes of this paragraph in Tribunal Procedure Rules;

(b) provide that the First-tier Tribunal’s power under subsection (1) to review a decision of a description specified for the purposes of this paragraph in Tribunal Procedure Rules is exercisable only of the tribunal’s own initiative;

(c) provide that an application under subsection (2)(b) that is of a description specified for the purposes of this paragraph in Tribunal Procedure Rules may be made only on grounds specified for the purposes of this paragraph in Tribunal Procedure Rules;

(d) provide, in relation to a decision of a description specified for the purposes of this paragraph in Tribunal Procedure Rules, that the First-tier Tribunal’s power under subsection (1) to review the decision of its own initiative is exercisable only on grounds specified for the purposes of this paragraph in Tribunal Procedure Rules.

(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.

(6) Where a matter is referred to the Upper Tribunal under subsection (5)(b), the Upper Tribunal must re-decide the matter.

(7) Where the Upper Tribunal is under subsection (6) re-deciding a matter, it may make any decision which the First-tier Tribunal could make if the First-tier Tribunal were re-deciding the matter.

(8) Where a tribunal is acting under subsection (5)(a) or (6), it may make such findings of fact as it considers appropriate.

(9) This section has effect as if a decision under subsection (4)(c) to set aside an earlier decision were not an excluded decision for the purposes of section 11(1), but the First-tier Tribunal’s only power in the light of a review under subsection (1) of a decision under subsection (4)(c) is the power under subsection (4)(a).

(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.       Section 11 limits the right of appeal in respect of decisions under section 9:

11 Right to appeal to Upper Tribunal

(1) For the purposes of subsection (2), the reference to a right of appeal is to a right to appeal to the Upper Tribunal on any point of law arising from a decision made by the First-tier Tribunal other than an excluded decision.

…

(5) For the purposes of subsection (1), an “excluded decision” is—

…

(d) a decision of the First-tier Tribunal under section 9—

(i) to review, or not to review, an earlier decision of the tribunal,

(ii) to take no action, or not to take any particular action, in the light of a review of an earlier decision of the tribunal,

(iii) to set aside an earlier decision of the tribunal, or

(iv) to refer, or not to refer, a matter to the Upper Tribunal,

(e) a decision of the First-tier Tribunal that is set aside under section 9 (including a decision set aside after proceedings on an appeal under this section have been begun), …

The Rules

14.       Rule 38(3) provides that a party has one month in which to apply for permission to appeal. Time runs from the date when the tribunal’s written reasons are sent to the party and runs again if the reasons are amended:

(3) An application under paragraph (2) must be sent or delivered to the Tribunal so that it is received no later than 1 month after the latest of the dates that the Tribunal sends to the person making the application—

(a) written reasons for the decision;

(b) notification of amended reasons for, or correction of, the decision following a review; or

(c) notification that an application for the decision to be set aside has been unsuccessful.

15.       Rules 39 and 40 of the Rules are made under the authority of section 9(3) of the Act:

39 Tribunal’s consideration of application for permission to appeal

(1) On receiving an application for permission to appeal the Tribunal must first consider, taking into account the overriding objective in rule 2, whether to review the decision in accordance with rule 40 (review of a decision).

(2) If the Tribunal decides not to review the decision, or reviews the decision and decides to take no action in relation to the decision, or part of it, the Tribunal must consider whether to give permission to appeal in relation to the decision or that part of it.

40 Review of a decision

(1) This rule does not apply to asylum support cases or criminal injuries compensation cases.

(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.

16.       Rule 5(3)(n) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI No 2698) is also relevant:

5 Case management powers

…

(3) In particular, and without restricting the general powers in paragraphs (1) and (2), the Upper Tribunal may-

…

(n) require any person, body or other tribunal whose decision is the subject of proceedings before the Upper Tribunal to provide reasons for the decision, or other information or documents in relation to the decision or any proceedings before that person, body or tribunal.

17.       Rule 34 provides for a tribunal to provide written reasons, either on its own initiative or on the application of one of the parties. If the tribunal consisted of more than one member, its reasons must, of course, be the reasons of the whole panel.

18.       In applying the rules we have set out, the tribunal must seek to give effect to the overriding objective that tribunals should deal with cases fairly and justly.

The Practice Statement

19.       The composition of a First-tier Tribunal is governed by the First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008 (SI No 2835), which is made under the authority of paragraph 15 of Schedule 4 to the 2007 Act. By article 6:

The number of members who are to be judges of the tribunal and the number of members who are to be other members of the tribunal must be determined by the Senior President of Tribunals.

The Senior President’s Practice Statement implements that provision.

20.       Paragraph 4 of the Statement provides that a disability living allowance appeal must be decided by a panel consisting of a judge and two members. One member must be a medical practitioner and the other must have a disability qualification. Paragraph 13 provides for the presiding member (in practice, the judge) to give any written reasons. Paragraph 11 deals with review:

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.

This paragraph has recently been amended, but not in a way that affects our analysis.

21.       The Statement makes no provision for the position if a decision in a disability living allowance appeal is made by a First-tier Tribunal that is not constituted in accordance with paragraph 4.

D.        Review by the First-tier Tribunal – analysis

How the provisions apply in combination

22.       The legislation specifies conditions precedent for a review and the action that may be taken in the light of the review. The combined effect of section 9 and rules 39 and 40 is that the First-tier Tribunal may only review a decision on an application for permission to appeal and on the ground of error of law. These are essential conditions that must be satisfied before a review can take place. By its language, the powers under section 9(4) do not arise until there has been a review. But unless action is taken pursuant to those powers the review would have no effect.

23.       Rule 40(3) does not in its language maintain that distinction between the review and the action taken in light of the review. In our view, ‘outcome of the review’ in that paragraph must mean the action taken, if any, under section 9(4). We say ‘if any’, because section 9(4) is discretionary. There is no duty to choose to correct, amend, or set aside. The tribunal may decide to take no action in the light of the review, as is recognised by section 11(5)(d)(ii) and rule 39.

24.       If, as here, the presiding judge was fee-paid, paragraph 11 of the Practice Statement allocates to a salaried judge ‘the exercise of the power of review’. Does this include the decision on the steps to be taken under section 9(4)? If it does, it means that the salaried judge, who was either not a member of the panel at the hearing or only one of them, must decide whether and, if so how, those powers are to be exercised. If it does not, there is no provision in the Practice Statement allocating the exercise of those powers, including the setting aside of a decision under section 9(4)(c).

25.       It is clear that paragraph 11 has the effect that the salaried judge is to decide whether or not to set aside the decision because express provision is made applying paragraph 4, 5 or 6 thereof to the re-deciding of the appeal. The problems arise in respect of the exercise of the powers to correct accidental errors or to amend reasons. Some accidental errors may be sufficiently obvious to enable them to be identified and corrected by persons who did not make them, but others may not be. Amended reasons could not properly be written by a salaried judge who was not a member of the original panel.

26.       The result is that paragraph 11 appears to give a power to a salaried judge who may not be in a position to implement it. In our view, the solution to this conundrum is as follows. The ‘power of review’ is not an expression used in the legislation. It includes the decision under section 9(4). If the salaried judge considers that it may be appropriate to amend the tribunal’s reasons, the proper course is to invite the presiding judge to prepare such reasons as are consistent with the tribunal’s reasoning at the time of its decision. The salaried judge must then decide whether they satisfy the criterion of being amended reasons. We say more about this later.

27.       The salaried judge must apply the powers under the rules of procedure fairly and justly. That means that they must be exercised transparently. In order to do so, the salaried judge will need (i) to consider whether every party should be given notice before taking any action and (ii) if that is not done, to give the notice required by rule 40(4). Here, Judge Moss did not give prior notice and did not comply with rule 40(4). This had the unfortunate result that, amongst other things, Mr Wall did not know what action Judge Moss was proposing, was not given the chance to influence it, and was not properly informed of his right to make representations after the event. Such basic fairness is axiomatic without any need to rely on the overriding objective. As Mummery LJ said in Space Airconditioning plc v Guy [2012] EWCA Civ 1662 at [53] of a judge correcting a judgment:

Before the correction is made the judge should obviously give both sides an opportunity to make submissions on whether there is a valid objection to a proposed amendment of the judgment.

The purpose of the review power

28.       The self-evident purpose of these provisions is to allow the First-tier Tribunal to avoid the need for an appeal to the Upper Tribunal in the case of clear errors. That is to the benefit of the parties and the Upper Tribunal. In R (RB) v First-tier Tribunal [2010] UKUT 160 (AAC) [2010] AACR 41, a three-judge panel of the Upper Tribunal quoted paragraph 100 of the explanatory notes to the 2007 Act:

Sections 9 and 10 provide powers for the First-tier and Upper Tribunals to review their own decisions without the need for a full onward appeal and, where the tribunal concludes that an error was made, to re-decide the matter. This is intended to capture decisions that are clearly wrong, so avoiding the need for an appeal. The power has been provided in the form of a discretionary power for the Tribunal so that only appropriate decisions are reviewed. This contrasts with cases where an appeal on a point of law is made, because, for instance, it is important to have an authoritative ruling.

As the panel decided, the power of review must not be used in a way that subverts the appeal process and bypasses the proper function of the Upper Tribunal. This is consistent with In the matter of L and B (Children) [2013] UKSC 8 at [17] and [19], in which the Supreme Court has recently emphasised that the integrity of the appeal process should not be subverted by diverting matters to an alternative process.

29.       That same issue of balance, between the efficiency of a review power and the proper role of an appeal to the Upper Tribunal, arises in this case also. So does another balance: between inadequate reasons that can appropriately be amended and those for which the only proper course is to set aside the decision.

30.       Although the review provisions were innovative, they were not without precedent in this area of law. The other legislative provisions form part of the background to the review power created by section 9. Section 13 of the Social Security Act 1998 previously provided:

13 Redetermination etc. of appeals by tribunal

(1) This section applies where an application is made to a person under section 14(10)(a) below for leave to appeal from a decision of an appeal tribunal.

(2) If the person considers that the decision was erroneous in point of law, he may set aside the decision and refer the case either for redetermination by the tribunal or for determination by a differently constituted tribunal.

(3) If each of the principal parties to the case expresses the view that the decision was erroneous in point of law, the person shall set aside the decision and refer the case for determination by a differently constituted tribunal.

Section 23A of the Child Support Act 1991 made equivalent provision.

31.       Section 13 was not unique. Other jurisdictions had, and have, powers of review. Rule 34 in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (SI No 1861) was in some respects similar to section 13, although it is more akin to the First-tier Tribunal’s set aside powers. It allowed for a decision to be reviewed in limited circumstances:

(3) Subject to paragraph (4), decisions may be reviewed on the following grounds only–

(a) the decision was wrongly made as a result of an administrative error;

(b) a party did not receive notice of the proceedings leading to the decision;

(c) the decision was made in the absence of a party;

(d) new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at that time; or

(e) the interests of justice require such a review.

32.       There were also decisions on the power to give supplementary reasons. They relate to decisions by employment tribunals and the courts. The purpose of this common law or inherent power is to avoid the need for a rehearing. In a sense, the power to review conferred by section 9 and governed by rules 39 and 40 is the statutory equivalent of this power.

33.       However, in our view the limitations on the exercise of the statutory power in section 9 must act, in terms of legislative effect, to suspend the common law or inherent power. Otherwise, that power could be used to override the limitation specifically provided for in the statutory scheme. This perspective is given added force, in our judgment, by the fact that before the enactment of section 9, in the social security context at least, it had been decided that there was no inherent or common law power available to enable supplementary or amended reasons to be given for a tribunal’s decision: CA/4297/2004.

34.       Having said that, the common law or inherent power and the decisions on its exercise form part of the background against which, and by analogy provide guidance on how, section 9 is to be interpreted and applied. Those decisions make clear that the power to give additional reasons is only to be exercised exceptionally and with safeguards. Mummery LJ gave a clear and helpful statement on the approach to be taken in Woodhouse School v Webster [2009] ICR 818. He first explained the purpose of the procedure:

26. … The purpose of the procedure is to give the employment tribunal the opportunity of fulfilling its duty to provide adequate reasons for its decision without the inconvenience that might be involved in the appeal tribunal allowing a reasons challenge to the employment tribunal decision under appeal and having to remit the case to the tribunal for a further hearing. Under the procedure developed by the appeal tribunal and this court the employment tribunal can be asked before the hearing of the appeal to supply, if it is possible to do so, the reasons for which the request is made.

He then set out the danger that had to be avoided:

27. It is not, however, desirable for the employment tribunal to do more than answer the request. The employment tribunal should not, for example, advance arguments in defence of its decision and against the grounds of appeal. It must not engage, or appear to be engaged, in advocacy rather than adjudication. …

Then he identified the way to avoid that danger:

28. First, it is necessary for the appeal tribunal to identify correctly the point on which the employment tribunal’s reasons may be inadequate. This was not done here. … If there were grounds for considering that the reasons of the employment tribunal were inadequate (which I doubt), it would have been more to the point to ask for additional reasons for the finding of an implicit instruction to dismiss.

35.       In our view, that reasoning is equally applicable to the review power under section 9. There is always the risk and so an apparent danger that the presiding judge will seek to defend the tribunal’s decision rather than reproduce faithfully the reasons that actually determined the appeal. That danger is the greater if the judge is given a representative’s detailed criticisms. The safeguard against the natural temptation to drift into responding to those criticisms lies in the way that the salaried judge identifies the error of law on which the review is founded. That judge should identify with precision the respects in which the reasons are inadequate and therefore in error of law before inviting the presiding judge to provide amended reasons, if that is possible.

36.       One of the limits on the power to supplement reasons is that it must not be used to correct defective reasoning or to provide a commentary on the grounds of appeal. Again, in our view, that is equally applicable to the review power under section 9. In Brewer v Mann [2012] EWCA Civ 246, the Court of Appeal said:

27. It is plain that in English this court was considering (i) a relatively straightforward case, (ii) where an appeal might be avoided altogether if further reasons were promptly given by the judge, and (iii) where the judge was effectively invited by the applicant for appeal or the appeal court to supply further reasons. Thus Lord Phillips continued:

‘[24] We are not greatly attracted by the suggestion that a judge who has given inadequate reasons should be invited to have a second bite at the cherry. But we are much less attracted at the prospect of expensive appellate proceedings on the ground of lack of reasons. Where the judge who has heard the evidence has based a rational decision on it, the successful party will suffer an injustice if that decision is appealed, let alone set aside, simply because the judge has not included in his judgment adequate reasons for his decision…

[25] Accordingly, we recommend the following course. If an application to appeal on the ground of lack of reasons is made to the trial judge, the judge should consider whether his judgment is defective for lack of reasons, adjourning for that purpose should he find this necessary. If he concludes that it is, he should set out to remedy the defect by the provision of additional reasons refusing permission to appeal on the basis that he has adopted that course. If he concludes that he has given adequate reasons, he will no doubt refuse permission to appeal. If an application for permission to appeal on the ground of lack of reasons is made to the appellate court and it appears to the appellate court that the application is well founded, it should consider adjourning the application and remitting the case to the trial judge with an invitation to provide additional reasons for his decision or, where appropriate, his reasons for a specific finding or findings.’

28. It does not seem to be contemplated that the judge should alter his existing judgment, but should simply supply what is missing.

31. … where a judge has received no request from the parties to reconsider his judgment or add to his reasons, and has not demonstrated the need in conscience to revisit his judgment, but on the contrary has received grounds of appeal and an application for permission to appeal on the basis of the alleged inadequacies of his judgment, then it would be most unwise for him to rewrite his judgment (other than purely editorially) and it would take the most extraordinary reasons, if any, to justify such a course on his part. It is also plain to us that this was not the case of a short judgment on a straightforward issue where an appeal might be avoided if the judge supplied further reasoning which had been requested of him.

The meaning of ‘amend’

37.       Against that background, we now explain our interpretation of section 9(4)(b).

38.       The contrasting language of section 9(4)(a) and (b) means that an amendment of the reasons for a decision extends beyond the correction of the accidental errors referred to in section 9(4)(a).

39.       The word has a wide range of meanings in everyday usage, as the dictionary definitions cited to us show. All words take their meaning from their context and all the more so when they have such a range of meanings as ‘amend’ does. There are a number of cases that provide the same guidance as that given by Lord Mustill in R v Monopolies and Mergers Commission ex parte South Yorkshire Transport plc [1993] 1 WLR 20 at 29:

The courts have repeatedly warned against the dangers of taking an inherently imprecise word, and by redefining it thrusting on it a spurious degree of precision.

And by Lord Upjohn in Customs and Excise Commissioners v Top Ten Promotions Ltd [1969] 1 WLR 1163, at 1171:

It is highly dangerous, if not impossible, to attempt to place an accurate definition upon a word in common use; you can look up examples of its many uses if you want to in the Oxford Dictionary but that does not help on definition; in fact it probably only shows that the word normally defies definition. The task of the court in construing statutory language such as that which is before your Lordships is to look at the mischief at which the Act is directed and then, in that light, to consider whether as a matter of common sense and every day usage the known, proved or admitted or properly inferred facts of the particular case bring the case within the ordinary meaning of the words used by Parliament.

Applying that guidance, the approach we adopt acknowledges that a bright line description or definition of the meaning of ‘amend’ is impossible and instead analyses the scope of the language by reference to the purposes it serves.

40.       The purpose of amended reasons is the same as the purpose of the original reasons: to show how the tribunal made its decision. They must be the reasons that led the tribunal to decide as it did, flawed though they may be, not a later attempt to rationalise the decision. And they must be the reasons of the panel as a whole. As a result, a tribunal’s reasons, whether original or amended, can only properly be written by the presiding judge or, exceptionally, another member of the panel.

41.       As Mummery LJ said in Space Airconditioning plc v Guy [2012] EWCA Civ 1664 at [53]:

A judgment should be an accurate record of the judge’s findings and of the reasons for the decision.

And, we would add, it should be so from the start. There is a risk and so an apparent danger in amending reasons that they become a later rationalisation or that they reflect the views of the presiding judge rather than the whole panel. There is a risk and so an apparent danger that the judge will drift into justification to such an extent that the tribunal changes from a decision-maker into an adversary in the appeal process. These dangers have been addressed by the courts in their decisions on supplementary reasons.

42.       The purpose of the power to amend is to avoid the need to set the decision aside or the need for an appeal to the Upper Tribunal. The latter objective is more likely to be satisfied for some sorts of amendments than others. An amendment that supplies an omission may be sufficient to satisfy a party, whereas a further attempt to explain how the tribunal assessed the evidence may merely lead to a different set of criticisms.

43.       The proper interpretation and application of section 9(4)(b) lies in a balance between fulfilling the purposes of the provision while avoiding the risks and so the apparent dangers referred to earlier. The response to them is both procedural and substantive.

Procedural safeguards

44.       We have already identified the procedural safeguards in the salaried judge:

·             identifying with precision the error of law on which the review is founded;

·             deciding whether the additional reasons provided by the presiding judge should be adopted as amended reasons; and

·             applying a fair and transparent process.

If and when amended reasons are provided, the salaried judge does not have to adopt them, but may instead take one of the other two options available: (i) to set the decision aside; or (ii) to take no action on the review.

Substantive safeguard

45.       The substantive safeguard is to interpret ‘amend’ in a way that minimises the risks and apparent dangers inherent in the process and to confine it to cases that properly fulfil the purposes of the provision. So it is limited to cases in which it would be proper to amend the reasons rather than set aside the decision. It must not be used as a way to subvert the right of appeal. It covers cases where there is some objective guarantee that the reasons have not drifted into justification.

46.       It is not possible to provide an exhaustive list of what is and is not permissible, but it is possible to give examples at either end of the spectrum.

47.       A clear example of a permissible amendment would be an issue that had been expressly raised on the appeal and explored at the hearing, but not mentioned in the written reasons. In such a case, it would be clear that part of the tribunal’s reasoning was missing by oversight, and there would be no danger of the judge writing a justification by reference to the grounds of appeal.

48.       Another example of a permissible amendment would be a passage that was ambiguous or otherwise unclear in what it was saying. In such a case, it would be clear that something had gone wrong with the composition of the reasons and there would be limited scope for the judge to drift away from the task of explaining what the passage meant.

49.       In both these examples, amending the reasons would not undermine the parties’ confidence in the judicial decision-making process and the finality of decisions. The amendment would be directed to and might avoid the need for an appeal.

50.       At the other extreme, an example of an impermissible amendment would be a passage that gave a poor explanation of a tribunal’s analysis of a piece of evidence. In such a case, it would not be self-evident that something had gone wrong, and there would be an effectively unavoidable risk that the judge, in seeking to bolster the reasons already given, would drift into supplementing the tribunal’s actual reasons and, perhaps, into justification. And both those dangers would undermine confidence in the judicial decision-making process and in the finality of decisions. It is unlikely that the amendment would avoid the desire to appeal.

51.       In our judgment, it is likely that many inadequacies identified in a tribunal’s reasons will be at or towards this end of the spectrum and so not appropriate for amendment.

How the salaried judge should proceed

52.       We hope it is helpful to pull together the points we have made in the form of guidance for salaried judges.

53.       A salaried judge should first consider whether there is an error of law in the tribunal’s decision. If there is, the judge should identify it precisely.

54.       In our view, a salaried judge who is considering exercising the power to amend a tribunal’s reasons should give notice to the parties. The notice will identify the error of law and indicate the course of action proposed. This will alert the parties to the issue and allow them to consider whether an amendment would be appropriate or permissible in the circumstances of the case, including the error of law identified on the review. The parties will also be able to consider whether the case is suitable for an agreed set aside under section 13(3) of the Social Security Act 1998. They will be able to consider whether there could be objective confidence in an amendment avoiding the danger that the reasons will be rewritten.

55.       These matters must also be considered conscientiously by the presiding judge, who decides whether the reasons could be changed, and by the salaried who, who decides whether any changes would be permissible amendments within the power. Both judges should make clear that they have done so and explain why they have acted as they have. In order to assist the presiding judge to act in accordance with the requirements and limitations of section 9, it should only be in exceptional cases that a salaried judge sends that judge a copy of the application for permission to appeal.

56.       The same approach should be taken if the salaried judge is considering exercising the power to correct a decision under section 9(4)(a), unless the correction is obvious.

57.       A salaried judge who was also the presiding judge should exercise the same discipline at each stage as if those roles were split.

58.       We understand that the Secretary of State has agreed to forego the chance to make representations on applications for permission to appeal. It is not clear to us whether that approach extends to cases in which the salaried judge considers that it may be appropriate to amend the tribunal’s reasons. These reasons may be important to the Secretary of State, as they contain findings of fact that may affect later decisions for the claimant.

E.         The additional reasons in this case

59.       On our analysis, the additional reasons written by Judge Gardner were added to the tribunal’s original reasons by virtue of the decision of Judge Moss acting under section 9(4)(b) of the 2007 Act. Consequent upon Judge Moss’s decision, the parties had one month in which to apply for permission to appeal under rule 38(3)(b). Although the time for appealing dates to the issue of the amended reasons, the appeal lies against the tribunal’s decision, including both the original and the additional reasons.

60.       On appeal, the Upper Tribunal has jurisdiction to consider whether the additional reasons were properly added under the review power. This is consistent with section 11(5), which excludes certain decisions from the right of appeal to the Upper Tribunal. One approach is that the decision to amend the reasons is not one of those listed as excluded in section 11(5)(d). The other approach is that on appeal for error of law a party is entitled to rely on any ground for judicial review: MT (Algeria) v Secretary of State for the Home Department [2010] 2 AC 110 at [73]. It is not necessary to bring judicial review proceedings against the section 9 decision. As Lord Slynn said in Mercury Communications Ltd v Director General of Telecommunications [1996] 1 WLR 48 at 57, ‘some flexibility as to the use of different procedures is necessary.’

61.       Exercising that jurisdiction, we have decided that the additional reasons were outside the scope of section 9(4)(b). In part, they do no more than explain what was tolerably clear to an informed reader anyway. In part, they provide a commentary on the grounds of appeal, which was deprecated by the Court of Appeal in Brewer v Mann. And in part, they merely attempt to provide a better, clearer explanation than the original reasons. This is in the impermissible part of the spectrum of amendments. There is no objective reason to believe that something has been omitted from the original reasons and, therefore, a danger of drifting into justification. This type of amendment is unlikely to prevent an appeal and undermines the confidence of the parties in finality of the decision-making process.

62.       The reasons could also be excluded on the ground that Judge Moss acted in a manner that was procedurally unfair, both in reaching his decision and in making his order. He failed to give the parties notice before he made it and failed to give them the notice required by rule 40(4) when he had made it. His notice of the time limit for appealing did not cure the defect; it merely drew the parties’ attention to the provision of rule 38(3).

F.         The tribunal’s original reasons

63.       As it was common ground that the tribunal’s decision should be set aside, we can deal with this briefly. The original reasons were too general in their analysis of the key factual issues that should have determined the outcome. Just to take one example: the tribunal accepted that Mrs S experienced pain and fatigue. That required an investigation by the tribunal into the claimant’s individual experience in order to make specific findings of fact and to provide reasons applying the statutory criteria to those findings.

64.       In AS v Secretary of State for Work and Pensions [2011] UKUT 159 (AAC), the Upper Tribunal decided that the original reasons were inadequate but took account of reasons that had been added improperly under the slip rule in deciding whether a rehearing was required. In this case, the additional reasons do not allow that approach, as they are flawed in the same way as the original reasons.

 

 

Signed on original on 6 March 2013

Charles J Chamber President   Edward Jacobs Stewart Wright Upper Tribunal Judges

 

Appendix A

Statement of Reasons for Decision

 

1. This is the appeal of the appellant in respect of a decision made on the 27 August 2010 determining upon the Secretary of State’s supersession that she failed to satisfy the requirements for an award of the higher rate of the Mobility Component and the lowest rate of the Care Component. The award was removed.

2. It is accepted and conceded by the appellant’s experienced representative organisation that the grounds existed and the information existed at the time and that legally, therefore, there is no basis for challenging it on the grounds of procedure or the like. The representative organisation do of course reserve their rights to challenge the interpretation of the evidence obtained at the time and the hearing proceeded by agreement between the parties on the basis of a factual assessment of the position and a factual interpretation of the evidence.

3. The Tribunal had before it an extensive bundle of documents numbers 1 to 216. Simply because a document is not referred to in this Statement of Reasons should not be taken as inferring that the document has not been considered. This Tribunal has considered all of the documentation before it on a careful basis. It has also had drawn to its attention the various documents upon which the appellant relies and the medical evidence contained within the papers.

4. It is clear that the appellant has a perception with regards to her abilities which is simply not borne out by the medical evidence. The Tribunal is not too concerned with regards to the precise definition of the medical conditions with which she suffers and is afflicted but more her ability to function. The Tribunal credits the appellant with some level of pain. It also credits the appellant with some level of fatigue and discomfort. This has been credited throughout by all of the medical experts and those whose opinion has been obtained.

5. However, as stated and set out in the Examining Health Care Practitioner’s report the appellant has a perception of discomfort and pain which is probably not borne out.

6. Her evidence was at times confused and avoiding of questions. By way of example the appellant asserts that she is unable to hold a pan yet is able to ‘haul herself’ up the stairs, is able to drive her car, is able to carry a bag, is able to open a packet of crisps, is able to open takeaway containers yet she asserts she is unable to get herself up if she is on the floor. She is able, however, to get down to the floor with some assistance she asserts to wash her hair and get up as well. She appears never to have had an occupational therapy assessment, has never been referred for an occupational therapy assessment, has never sought a stick or other walking aids, has never had any adaptations to her property, has never sought herself to obtain items which would make her life easier. In making the last comment the Tribunal is of course conscious of her financial situation. By way of example she has not sought to obtain some form of stool or other aid upon which to put her feet so she can sit in a normal armchair as opposed to a settee which she asserts she would require assistance to get out of. She later changed her evidence to state the problem was not actually getting out of the sofa but was moving her legs. The two are not consistent.

7. Her earlier General Practitioner indicated in 1998 that the appellant was able to walk approximately 100 yards.

8. The activities of daily living as set out in the Examining Health Care Practitioner’s report are not challenged. Her medical history as set out in the Examining Health Care Practitioner’s report are not challenged. It is merely the conclusions that he draws from the clinical findings which again are not challenged but are challenged.

9. The medical evidence throughout does credit the appellant with some difficulty and some pain and some discomfort. The independent medical evidence does not credit her with needing assistance within the meaning of the Regulations either by way of walking or care. All other medical evidence whilst valuable is obtained from General Practitioners and others who are not asserting that they are trained in the Regulations themselves. Indeed by way of example at document 209 the General Practitioner expects without having any direct knowledge that the appellant may need encouragement and speaks generally with regards to people with low mood. The Tribunal simply does not accept that the appellant would not be able to prepare a carrot or a potato for herself due to pain and/or grip. She has sufficient grip and the pain in the Tribunal’s assessment would not prevent her from doing so. She is on moderate painkillers it is asserted simply because she is intolerant of other painkillers and the Tribunal has taken that into account. She appears to have been referred or sought a referral to the pain clinic and seen her General Practitioner shortly after the enquiry pack was received by her.

10. Taking into account all the clinical findings and all the medical evidence the Tribunal is satisfied that the appellant can undertake a walking distance significantly in excess of 50 metres before the onset of severe discomfort. In the Tribunal’s assessment she could undertake a distance of 500 metres on flat level paved terrain at a slightly slower than average speed in about 7 minutes with a hobbling gait and satisfactory balance before the onset of severe discomfort. In the Tribunal’s assessment it has considered all of the factors set out within the Regulations including time, distance, speed and manner. The Tribunal is aware that distance is not the overriding factor in determining virtual inability to walk. The Tribunal, however, has found that the appellant is not virtually unable to walk and neither would on the basis of the medical evidence before it the effort needed to walk put the appellant’s life at risk or be likely to lead to a serious deterioration her health.

11. The appellant does self care. She says she is a fighter and she does not want to give in to her condition. She also does not want to be a burden on her family. The Tribunal, of course, has to consider what is reasonable not what actually happens. The Tribunal has considered what is reasonable. The appellant’s condition is such that as long as she paces herself (as she accepted in the course of her evidence) she will not suffer a flare‑up and she can undertake all the tasks of daily living. She does not require attention in connection with her bodily functions for a significant portion of the day and neither does she require assistance with a cooked main meal.

12. Accordingly having considered all of the voluminous paper work and the testimony before it the Tribunal is satisfied that the appellant does not qualify for an award of Disability Living Allowance. It has previously been accepted by the appellant’s experienced representative organisation through its legally qualified representative that there were grounds for the supersession on a legal basis. Accordingly the appeal is dismissed.

Appendix B

Application for Permission to Appeal

 

I am writing regarding the above named appellant and in response to the statement of reasons dated the 25^th October 2011.

1. I note that throughout the statement of reasons the Tribunal determine as a finding of fact that the Claimant suffers a degree of pain. The Court of Appeal in Casinelli v Secretary of State for Social Security [cited as R(M) 2/92] has held that discomfort is a lesser concomitant of pain and accordingly if the tribunal find that the Claimant was experiencing pain then by definition they are accepting a level of discomfort that will need to be addressed in some detail when rejecting the Appeal. It is submitted that the Tribunal’s reasoning does not include an examination of the ‘pain’ that they accept and how this relates to the Regulations for the benefit claimed and this constitutes an error in law.

2. In similar vein the Tribunal accept in paragraph 4 that the Claimant experiences a degree of fatigue and discomfort [presumably as opposed to pain although this is not defined by the Tribunal] and the Tribunal fail in my submission to adequately explain why these findings do not relate to an award of benefit.

3. It is submitted that paragraph 6 of the Statement of Reasons is quite confused in the way that it appraises the evidence as it seems to extrapolate an ability of the Claimant to perform certain tasks from her ability to undertake seemingly unrelated tasks albeit with difficulty. For instance the Claimant stated in the hearing that she can ‘haul herself’ up the stairs but cannot get off the floor. It is submitted that these two claims are consistent but that this has not been noted by the Tribunal, instead they have concentrated on the apparent contradictions in evidence. It is further submitted that by explaining the decision making process in such way the Tribunal have perhaps inadvertently shown that their approach to the case was to look for reasons not to grant the benefit rather than an impartial examination of the facts.

4. Again with regard to paragraph 6 this would seem to refer to a utopian situation where everybody is aware of the aids and assistance available to them. It is accepted that the lack of aids may well be of evidential value but the Tribunal seems to have determined a fact from the lack of activity on the part of the Claimant to help herself.

5. In paragraph 7 the Tribunal record a finding of fact from 1998 but fail to explain how this has affected their decision making and what weight they have placed on evidence that is now 13 years old. This lack of explanation leaves the Claimant and any impartial observer with the view that this evidence has been preferred over more recent medical opinion that favours the Claimant’s case and without any reason for this being given.

6. The final sentence in paragraph 8 contains a typing error – it is assumed that the Statement reflects the fact that the conclusions drawn from clinical findings are challenged.

7. In paragraph 9 the Tribunal aver that the medical evidence they have relied upon is independent as if that finding of independence confers some greater weight. It is submitted firstly that the medical evidence commissioned by the DWP is not independent and secondly that no greater weight ought properly to be attached to that evidence [CDLA 2277 2005 is submitted herewith]. Medical evidence by this authority ought properly to be considered as a whole.

8. The point made in paragraph 7 above is repeated with regard the statement made in paragraph 9 of the Statement of Reasons about the lack of training of a General Practitioner in the Benefit Regulations.

9. This case involves a Claimant who previously was entitled to Higher Rate of Mobility and Lowest Rate of Care and it is submitted that although a previous award will not necessarily be renewed there is a requirement for the Tribunal to give reasons to explain why so that there is no perceived unfairness by the Claimant. [See paragraph 15 of R(M) 1/96 submitted herewith.] It is submitted that the Statement of Reasons therefore ought properly to examine the underlying medical conditions, any variation in that condition between the award and the refusal, the impact of any variation in the condition on the functional ability of the Claimant on any changes in the law. In this case the Statement of Reasons is silent as to why the previous award was not reviewed and it is submitted that this is an error that leads to an understandable perception of unfairness by the Claimant.

I thank you in advance for your consideration on these matters and I look forward to receiving your decision on this application in due course.

Appendix C

Supplemental Statement of Reasons for Decision

This statement is to be read together with the decision notice issued by the tribunal and the earlier statement of reasons

 

1. This supplemental statement of reasons is issued following a further consideration of the earlier statement issued on 25/10/11 to the parties.

2. It is not automatically the case that pain is greater than severe discomfort. In reaching its conclusions the Tribunal considered the statutory tests which are applicable and applied them. It considered the walking ability before the onset of severe discomfort and what was reasonable for the Appellant to undertake taking into account the level of pain she experiences.

3. Paragraph 6 of the original statement of reasons deals with the evidence of the Appellant and by extension the conclusion that can be drawn from it. The fact that the Appellant is able to ‘haul’ herself up the stairs using banisters indicates that she has significant grip in her hands. This is not consistent with an assertion that she is weak in her hands and unable to peel vegetables or hold a pan. The fact that she is able to drive a manual car in difficult situations e.g. local journeys in and around local streets, to local shops, GP etc. is indicative again of grip and control in her hands as she is able to use all of the controls and feels that she is a safe driver who has not thought it necessary to tell her insurers or the DVLA about her conditions. Again not indicative of someone with impaired movement in her joints and of her limbs. The fact that she is able to carry a bag is indicative again of grip. Opening a packet of crisps is again indicative of grip and fine motor skills. Likewise with takeaway containers which are in the Tribunal’s experience not very stable when full of food.

4. It is inconceivable in the Tribunal’s assessment that the Appellant would have soldiered on for over 15 years without asking about changing her house if she were having so many difficulties and/or never been referred or had suggested to her that she ought to be assessed for aids and adaptations to assist her in her daily living. Likewise that she never sought to make enquiries of her GP or other healthcare professionals as to the availability of any items to assist her.

5. Further if she had so much difficulty getting up off the floor the Tribunal find it difficult to accept that she would voluntarily go to the floor to have her hair washed and not use a suitable chair to avoid that exercise.

6. The Appellant further agreed that she could if necessary fill her car up with fuel – again demonstrating significant grip and control in her hands as well as an ability to stand at the pump, use the paying pad at the pump or go into the kiosk to pay. This was further confirmed when she moved the chair in the Tribunal room (whilst acknowledging the date of the decision being the date for the Tribunal’s determination).

7. The conclusion drawn by the Tribunal and confirmed by the Examining Doctor was that the Appellant has a perception as to her abilities which is not borne out by the medical evidence, or her own testimony. There are too may inconsistencies.

8. In paragraph 7 the Appellant’s own GP indicates that in 1998 her walking ability was 100 yards. Thus she would have appeared potentially not to have been eligible for the higher rate of the mobility component of DLA then but no further investigation was undertaken. This is in contrast with the 1994 report showing a distance of 20 yards. This indicates an increase in her exercise tolerance. The earlier reports, as was the custom in 1994, were completed by the Appellant’s own GP. No further detailed consideration of her condition took place until the recent EMP report which is included within the papers, despite an apparent increase in her exercise tolerance.

9. Paragraph 8 of the original statement of reasons contains a typographical error. The clinical findings of the EMP report were not challenged. The conclusions however were challenged.

10. In reaching his conclusions the EMP has conducted an assessment of the Appellant having considered what he has been told against the statutory criteria specifically. He is trained in making such assessments which can be outside the remit of a GP, for example. The GP at document 209 deals in a number of places with his expectations and talking about general matters and not always about the Appellant specifically.

11. It was clear to the Tribunal that the Appellant’s condition had improved to the point that she was not eligible for an award of DLA at the previously awarded rate or at all. Her own testimony confirmed this in part and it was conceded by her experienced representative organisation that there were sufficient grounds in existence at the time to enable the DWP to make the decision that they did.

12. These additional reasons were considered by the Tribunal in its deliberations at the time whilst considering the oral and extensive written evidence before it. The original statement of reasons has not been added to or amended simply because it is no longer retained in an electronic format to enable that to be undertaken.

 

Appendix D

Decision and Directions

 

An application has been made for permission to appeal to the Upper Tribunal the decision of the tribunal issued on 6.10.11.

Further to section 9 of the Tribunals, Courts and Enforcement Act 2007 and rule 40 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, the tribunal considers it appropriate to review the decision because there was an error of law in that insufficient reasons were given to explain the decision.

Of concern is the final sentence of paragraph 3 of the letter dated 8 November 2011 from the representative. It is wholly unjustified, without foundation and with not a shred of evidence to support it. It is a potentially actionable statement, because it suggests the tribunal is deliberately biased against the appellant. That is a suggestion that challenges the impartiality and professional standards of the tribunal.

In consequence of the decision to review, the tribunal has decided to amend the reasons given for the decision in accordance with the attached amended Statement of Reasons.

The amended (supplemental) State of Reasons (attached) is to be issued to all parties.

The parties have one month from the date of the amended Statement of Reasons being issues to make an application for permission to appeal to the Upper Tribunal.