IN THE UPPER TRIBUNAL CDLA/333/2011 and CE/1039/2011

ADMINISTRATIVE APPEALS CHAMBER CE/697/2011 and CDLA/698/2011

CDLA/2187/2011 and CE/2189/2011

Before MR JUSTICE CHARLES, UPPER TRIBUNAL JUDGE MESHER AND UPPER TRIBUNAL JUDGE WARD

 

Attendances:

 

For the Appellants: Mr Tim Buley of counsel, instructed by solicitor, Child Poverty Action Group

 

For the Respondent Mr Stephen Cooper, solicitor, instructed by DWP Legal Services

 

 

DECISION

 

The appeals are allowed.

 

In CDLA/333/2011 and CE/1039/2011 (MB’s cases), the decisions of the First-tier Tribunal sitting at Wigan on 16 November 2010 under references 079/10/00834 and 079/10/01093 respectively involved the making of an error of law and are set aside.

 

In CE/697/2011 and CDLA/698/2011 (IH’s cases), the decisions of the First-tier Tribunal sitting at Leeds on 2 July 2010 under references 007/10/00578 and 007/10/00961 respectively involved the making of an error of law and are set aside.

 

In CDLA/2187/2011 and CE/2189/2011 (EK’s cases), the decisions of the First-tier Tribunal sitting at Manchester on 1 November 2010 under references 246/10/03278 and 946/10/00699 respectively involved the making of an error of law and are set aside.

The cases are referred to the First-tier Tribunal (Social Entitlement Chamber) for re-hearing.  The ESA and DLA hearings in respect of each claimant are to be heard at separate sessions from each other and by entirely differently constituted tribunals on each occasion.  Further directions may be given by the First-tier Tribunal as to the procedure to be adopted on those hearings.  As the hearings in respect of each claimant are to be entirely separate, each party will need to make sure that there is before the tribunal such evidence as that party wishes it to consider, including evidence which has its origin in the claim for the “other” benefit or its assessment or determination.

In the case of CDLA/333/2011, the First-tier Tribunal will now be concerned only with a “closed” period, from 6 January 2010 to 23 February 2011, as a subsequent successful claim was made.

In the case of CDLA/698/2011 we were told that IH had been awarded DLA on a subsequent claim, though we were not told from when.  If that is so, the First-tier Tribunal will be concerned with a closed period in that case also.

Liberty to apply for further or varied directions.

 

REASONS FOR DECISION

Introduction

1.               We have heard six appeals, by three appellants, from decisions of the First–tier Tribunal together.  They relate to claims by each appellant for both employment support allowance (“ESA”) and disability living allowance ("DLA") and they all raise the issue whether it is permissible for the First-tier Tribunal to hear appeals relating to claims for ESA and DLA together or consecutively on the same day without the membership of the tribunal being entirely different.  The appellants are now all represented by the Child Poverty Action Group (“CPAG”) who argue on their behalf that the decisions in each case of the First-tier Tribunals in relation to both ESA and DLA should be set aside because those decisions were made by tribunals that were not properly constituted.

2.               As there are conflicting decisions of individual judges of the Upper Tribunal  and the identification of the proper principles of law is of some difficulty, Judge Rowland directed that the six appeals were to be determined by three judges of the Upper Tribunal and that there was to be an oral hearing.  At the hearing the appellants were represented by Mr Tim Buley of counsel, instructed by the solicitor to CPAG.  The Secretary of State for Work and Pensions was represented by Mr Stephen Cooper, solicitor, instructed by DWP Legal Services.

3.               We are unanimous as to the outcome of the six appeals before us.  All of the tribunals’ decisions must be set aside as involving material errors of law and the appeals must be remitted to new tribunals for rehearing.  Regrettably, we have not been able to agree on the interpretation of some of the relevant legislation or on the effect in circumstances such as those in the present cases of the principles of natural justice and of the right to a fair trial.  That affects the directions to be given to the new tribunals for the rehearing of the appeals. 

The legislation and practice statement relating to the constitution of the First-tier Tribunal and its Rules

4.               Section 3(3) of the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”) provides that the First-tier Tribunal (FtT) is to consist of its judges and other members.  Paragraph 14(1) of Schedule 4 to the 2007 Act provides that the FtT’s function of deciding any matter in a case before the tribunal is to be exercised by a member or members of the appropriate Chamber.  The member or members are to be chosen by the Senior President of Tribunals (paragraph 14(2)), subject to his power under section 8(1) to delegate functions to judges or other members of the FtT or the Upper Tribunal or to staff.

5.               Paragraph 15 of Schedule 4 to the 2007 Act makes provision for the composition of FtTs.  Relevant parts of it are set out in the First Schedule to this decision.

6.               Paragraph 15(1) obliges the Lord Chancellor to make provision by order “in relation to every matter that may fall to be decided by the First-tier Tribunal or the Upper Tribunal, for determining the number of members of the tribunal who are to decide the matter.”  If the order provides for the matter to be decided by more than one member it must also make provision for determining how many are to be judges and how many are to be other members and may make provision for determining what qualifications any non-judge member(s) must have (paragraph 15(3)).

7.               The First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008 SI 2008 No.2835 (“the Composition of Tribunal Order”) provides that the number of members who are to decide any matter that falls to be decided by the FtT is to be determined by the Senior President of Tribunals (article 2), as is the number of members and judges when a membership of more than one is determined (articles 5 and 6).  Pursuant to that delegation by the Lord Chancellor (authorised by paragraph 15(4) of Schedule 4 to the 2007 Act), the Senior President issued the Practice Statement: Composition of Tribunals in Social Security and Child Support Cases in the Social Entitlement Chamber on or after 3 November 2008 (“the Practice Statement”).  Relevant parts of the Practice Statement as in operation at the relevant dates are set out in the First Schedule to this decision.  On 1 February 2013 the current Senior President issued a replacement Practice Statement as to the composition of tribunals on and after that date, but without making any changes in the provisions with which the present appeals are concerned.

8.               Although the 2007 Act and the Qualifications for Appointment of Members to the First-tier Tribunal and Upper Tribunal Order 2008 SI 2008 No.2692 make provision regarding the qualifications of members of the FtT generally, there is an apparent gap in the chain of provisions, in the absence of anything in the Composition of Tribunal Order expressly to authorise the Senior President to specify the qualifications for the members to decide any particular appeal.  However, we consider the significance of this to be slight.  The Lord Chancellor was not under a duty to make such provision in the Composition of Tribunal Order.  The result, it appears, is that the matter of qualifications for particular classes of appeal falls under the Senior President’s general duty in paragraph 14(2) of Schedule 4 to the 2007 Act to choose the member or members of a Chamber who are to exercise the function of deciding any matter in a case before the tribunal.  If the Senior President were to make that choice personally for every case, the Practice Statement could then only, so far as qualifications are concerned, be a statement of his policy, which could be departed from in any particular case.  In practice of course the choice of members for particular cases has been delegated by the Senior President under section 8(1) of the 2007 Act.  The Practice Statement was plainly drafted with such delegation in mind.  It is clear, from the reliance on the powers in the Composition of Tribunal Order, that the Practice Statement did not purport to be a practice direction under the express power to make the latter which section 23 of the 2007 Act confers.  It is therefore not entirely clear what the force is of such provisions of the Practice Statement as relate to qualifications (which from now on we call “the qualifications requirement”), despite the generality of the mandatory language noted below.  The binding effect of the Composition of Tribunal Order as such operates only as to the number of members and the breakdown between judges and non-judge members (from now on we call this “the numbers requirement”).

9.               Paragraph 4 of the Practice Statement relates to a DLA or attendance allowance appeal and paragraph 5, so far as relevant, relates to an ESA (or incapacity benefit) appeal (in the sense, at any rate, of one which “involves” the limited capability for work assessment or the determination of limited capability for work-related activity, or the personal capability assessment).  From now on we shall refer to these categories as DLA appeals and ESA appeals.  The Practice Statement adopts the same composition as existed for the tribunals that decided such cases before the 2007 Act, but it uses slightly different language.  It was not argued that the earlier provisions and such change of language are relevant and we do not think that they are.  Subject to the provisions in paragraphs 7 and 8 of the Practice Statement, which do not apply here because no determination was made by the Chamber President of the FtT, paragraphs 4 and 5 of the Practice Statement use mandatory language “must” and provide that:

i)                on a DLA appeal the FtT must consist of a Tribunal Judge (“a judge”), a Tribunal member who is a registered medical practitioner (“a medical member”) and a Tribunal member who has a disability qualification (“a DQM”), and

ii)              on an ESA appeal the FtT must consist of a judge and a medical member.

Paragraph 15 of Schedule 4 to the 2007 Act permits departure from those provisions (so far as they are binding as discussed in the previous paragraph) by consent, and absent:

a) such consent, or

b) a direction of the Chamber President of the FtT pursuant to the Practice Statement

the provisions are silent as to the effect of a matter being decided by a FtT that is not constituted as provided by paragraphs 4 or 5 of the Practice Statement.  It was not argued before us that that there was any relevant express or implied consent under paragraph 15 of Schedule 4 to the 2007 Act.

10.            We are not concerned with the effect and enforceability of an ESA or a DLA decision by a FtT that is not, or has not been, appealed but which on the decision of the majority was not decided in accordance with the Practice Direction. 

11.            Rather, we are concerned with whether any failures to comply with the Practice Statement are points of law upon which a successful appeal pursuant to s. 11 of the 2007 Act can be based.  In our view, in line with the approach of the parties and the earlier cases, going back at least as far as R(SB) 2/88 on much earlier provisions, if it is established that there has been a failure to comply with the numbers requirement in the Practice Statement this has the consequence that the decision concerned involved the making of an error on a point of law and so the Upper Tribunal may (but need not) set aside the decision.  But, as the error of law relates to the identity of the decision-makers required by the Practice Statement it seems to us that it would only be in rare circumstances that the Upper Tribunal would refuse to set aside the decision. 

12.            Decisions of the FtT are made in accordance with the relevant substantive law and the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 SI 2008 No.2685, made under section 22 of the 2007 Act,  Extracts from these are set out in the First Schedule to this decision.

13.            The Procedure Rules confer wide powers but, in our view correctly, it was not argued that they could render any failure to comply with, or any breach of, the numbers requirement in the Practice Statement lawful.  Put another way, we consider that the management powers and overriding objective have to be exercised and achieved in a manner that complies with the Practice Statement.  On the other hand, the fact that a tribunal is properly constituted in accordance with the Practice Statement does not preclude a conclusion that there was a breach of the principles of natural justice or of the right to a fair trial in relation to the way that the members of the tribunal or others have acted in the decision of any matter.

Some background

14.            For obvious reasons there can be overlap between circumstances that give rise to claims to DLA and ESA.  The statutory tests are however different and it is extremely likely that the decision makers within the Department will be different.  In broad terms, the basic tests for ESA set out a number of matters that are given points and they are therefore more formulaic that the tests for DLA, which involve qualitative and quantitative assessments.  For the purposes of the present decision it is not necessary to set out any further details.

15.            We accept that:

i)                 the difference between the history, nature and content of the two tests provides the (or at least a) reason for the inclusion of a DQM on a FtT to decide an appeal relating to DLA,

ii)               as pointed out by Judge Wikeley in DK v SSWP (DLA) [2012] UKUT 254 (AAC), considerable care must be taken when using a report prepared for one benefit for the purposes of another (in that case an ESA report for the purposes of DLA) and, as he points out, the tests are different even in cases of apparent overlap such as “walking” (ESA) and “mobility” (DLA), and

iii)             the decision-makers in the Department may or may not have had access to papers and information relating to the claim for the “other benefit”.

16.            But, it remains the case that there can often be overlap between the circumstances of, and thus the relevant facts that underlie, both claims.  For example:

i)                there may well be credibility issues relating to the impact and consequences of a disability or the cause of an inability of the claimant to do things that others can do,

ii)              as is shown by, for example, CDLA/3896/2006 and CIB/4331/2001, evidence prepared in respect of a claim or appeal in respect of one benefit can be relevant to the determination of an appeal relating to the other benefit with the result that a failure by the FtT to consider it on a separate appeal of the decision relating to the “other benefit” can be an error of law that founds a successful appeal, and

iii)            as to point (iii) in paragraph 15 above, if the Departmental decision-maker has had regard to, say, an ESA85 report from a healthcare professional in reaching his DLA decision, issues on its relevance and impact on the DLA claim could arise in the DLA appeal.  And, in our view, it cannot be said that the Departmental decision-maker cannot lawfully consider evidence and assertions prepared for an ESA claim in a DLA claim and vice versa.  For this reason, we also emphasise that the suggestion at [24] of PJ that the “evidence in an ESA85 report can only be tested by an ESA tribunal” requires to be read in its context: when it is, we respectfully think it was clear that Judge Williams was not intending to exclude consideration of the material in the context of a DLA case, assuming the matter was handled correctly in procedural terms.

17.            In many cases when an individual makes both claims or has current awards of both benefits, any decisions on the claims and awards and any appeals relating to them take quite separate paths and it would then be mere happenstance that the same judge and medical member would sit on a FtT deciding both of them.  Following separate paths in this way would increase the chances of divergent credibility findings or divergent findings on what is essentially the same factual background, and probably of relevant evidence on the “other claim” not being taken into account.

18.            The problems we are faced with arise when the existence of appeals to the FtT against both a decision relating to ESA and one relating to DLA has been identified.  As mentioned earlier, these problems relate to whether the two appeals can listed for hearing on the same day, or possibly within a short period of time of each other, on the basis that the same judge and medical member will sit on both FtTs.  If they can, this result would reduce the likelihood of divergent findings being made on common issues and of relevant evidence being left out of account, but would increase the chances of irrelevant matters being taken into account.

19.            Crucial questions therefore relate to:

i)                whether the participation of a second non-judge member (in practice a DQM) in any part or parts of an ESA appeal is in itself an error of law that founds an appeal, and

ii)              whether, if there has not been an error of law under (i), the process of hearing both appeals either concurrently or consecutively (terms explored further below) in the same session inevitably means that there will have been a breach of the principles of natural justice or of the right to a fair trial.

20.            Divergent approaches have been taken by Upper Tribunal Judges Williams and Lane in, respectively, PJ v SSWP (ESA) [2011] UKUT 224 (AAC) and WS v SSWP (DLA) [2012] UKUT 202 (AAC).  Those cases merit close reading.  Judge Williams’ conclusion is founded on his view that the Practice Statement covers the whole decision making process including hearing evidence and considering papers (see paragraph 18).  This leads to his conclusion that ESA and DLA appeals cannot be heard at the same time but can be heard at the same session by FtTs that have overlapping membership (see paragraph 19).  Judge Lane’s conclusion is that this formal separation of the two hearings injects unnecessary artificiality, that what matters is the substance and not the form (see paragraph 28) and that the members of the FtT can and should be trusted to act in accordance with their legal duties (see paragraph 29).  It is inherent in Judge Lane’s decision that it would not be a breach of the Practice Statement for the evidence to be heard at the same time by the two FtTs and for the members of them both to read all the papers in both appeals.

The position of the parties

21.            The appellants adopt Judge Williams’ approach to the meaning and impact of the Practice Statement on concurrent hearings but, on their primary case, go further and argue that he was wrong to conclude that the two appeals could be heard consecutively at the same session, or later, by FtTs with common medical and legal members.  The main reasons for this were that:

i)                the participation of the DQM in the hearing of evidence and the reading of papers in the ESA appeal was a breach of the Practice Statement with the result that the FtT dealing with it was improperly constituted, and

ii)              in respect of the DLA appeal, it will be effectively impossible to segregate the issues so as to ensure that each properly constituted FtT considers only issues relevant to one appeal or the other and that all three members of the DLA tribunal are able to evaluate the same evidence.

22.            As a result, in his skeleton argument Mr Buley for the appellants submitted as follows:

“In short, holding hearings together by panels which are notionally differently constituted, creates a real risk that both panels will in practice be improperly constituted because it will not be possible to exclude either that (A) the DQM takes part in a decision he is not entitled to take part in or (B) the DQM is excluded or marginalised from a decision in which he should be an equal part of the tribunal.

For similar reasons, it would be highly problematic to have a practice of having appeals heard consecutively.  If, for example, the ESA appeal is heard first, the panel members from that decision will have a knowledge of the evidence in the ESA appeal, which the DQM will not have.  The proper practice should be for cases to be heard on different occasions by differently constituted panels. ”

23.            The appellants’ fall back position (apart from particular points of detail on the separate appeals) was that Judge Williams was right in paragraph 19 of PJ and that the two appeals could be heard consecutively with common membership, subject the making of careful case management directions.

24.            Mr Cooper for the Secretary of State first emphasised that he had no instructions from the Secretary of State for Justice or from the Social Entitlement Chamber of the FtT. The Secretary of State for Work and Pensions, as a party before the tribunals, in a sense had no interest in the application of either approach over the other, but was concerned that the legislation should be properly applied in a fair procedure. Mr Cooper initially submitted that, by reference to the practice of FtTs and to the overriding objective in rule 2 of the Procedure Rules of dealing with cases fairly and justly (including the interests of claimants in only having to undergo the strain of attending a hearing and giving evidence about their problems once rather than twice), the conclusion reached by Judge Lane was correct. In the course of argument he suggested that, because of the dangers of a breach of the numbers and qualifications requirements in a concurrent hearing, there should be consecutive hearings, with the DLA hearing coming first, followed by the making of a decision and its announcement to the parties, and then the carrying out of the ESA hearing and decision in the absence of the DQM.

The analysis and views of the majority (Judges Mesher and Ward)

25.            The analysis must start with one of the three questions posed by Charles J in argument: what is the scope of the specification in paragraphs 4 and 5 of the Practice Statement of the number of members and their qualifications of which a tribunal must consist in DLA and ESA cases respectively?  That question in turns takes one back to the source of authority for the determinations and other provisions in the Practice Statement.

26.            That authority stems from the requirement in paragraph 15(1) of Schedule 4 to the 2007 Act for the Lord Chancellor to make provision by order “in relation to every matter that may fall to be decided by the First-tier Tribunal” for determining the number of members who are to decide the matter.  In our view the words just quoted are calculated to indicate the widest possible ambit of matters that must be considered by a tribunal in the course of ultimately coming to a decision on whatever case or part of a case is before it.  That is supported by the earlier reference in sub-paragraphs (1) and (2) of paragraph 14 to the Senior President’s duty to choose the member or members of a Chamber who are to exercise the function of deciding any matter in a case before the tribunal.

27.            We see no warrant for interpreting the words as restricted to the particular function of ultimately coming to a decision on whatever case is before the tribunal, and excluding the process of pre-hearing reading of material and preparatory discussion and the hearing and testing of oral and written evidence and submissions.  To do so would involve the making of what seems to us an impossible distinction between the making of the decision in an appeal and the necessary process providing the basis for that decision, a distinction that runs counter to our practical experience of decision-making in tribunals.  In reality the whole process of decision-making forms a seamless web, starting with the pre-reading of the documents sent to the members chosen to sit in a case.  At that stage initial and provisional views will be formed, gaps in the evidence or legal arguments identified and potential questions formulated.  That will feed into the pre-hearing discussion and preparation among the members on the day of the decision, into the questions and points raised by the members during the hearing, into each member’s evaluation of the evidence and submissions and eventually into the formulation of the decision on the appeal and the reasons for it.  In our judgment none of those stages can be separated out as not being a part of the function of deciding the matter in issue in an appeal.

28.            If we are wrong about that as a matter of the ordinary meaning of the words used, we consider that the overall context and the width of the words used is sufficient to make it clear that the duty in paragraph 15(1) of Schedule 4 to make provision was intended to encompass all those matters, like those just mentioned, which are an inevitable and indissoluble part of the process of coming to a decision.

29.            Article 2 of the Composition of Tribunal Order must then be interpreted in the same way in imposing a duty on the Senior President to determine the number of members who are to decide any matter.  Thus, when paragraphs 4 and 5 of the Practice Statement use the form of words that a tribunal must consist of three or two members respectively where the appeal involves the assessments underpinning either DLA or ESA, there is no reason stemming from the terms of the legislation requiring the Senior President to determine the number of members to decide any matter to restrict the numbers requirement to any particular part of the whole process of coming to a decision.

30.            If we are wrong about that last point, there remains the Senior President’s duty under paragraph 14(2) of Schedule 4 to the 2007 Act to choose the members of a Chamber who are to exercise the function of deciding any matter.  As explained in relation to the qualifications requirement in paragraph 8 above, that duty has been delegated.  Whether or not the duty as delegated is constrained by what is set out in the Practice Statement as to qualifications or numbers (on the assumption that we are wrong above about the scope of the numbers requirement), once a particular number of members of particular qualifications have been chosen, those members constitute the tribunal.  It appears to us that the “function of deciding any matter” which those members have been authorised to carry out must include everything in the necessary process of pre-hearing reading of material and preparatory discussion and the hearing and testing of oral and written evidence and submissions leading to the ultimate making of the decision.

31.            We acknowledge that there will be those who regard the implications of the view we have come to as burdensome for the parties and for the tribunal administration alike.  But perceived considerations of user-friendliness, even if one could be sure what those were, are of limited weight in the face of an express regime, established under statutory authority, which, as we consider, leads to a differing conclusion.  Further, the interpretation of statute, statutory instruments and practice statements are not matters to which the overriding objective in rule 2 of the FtT’s procedure rules is expressed to apply.

32.            In any event, considerations of perceived user-friendliness are at best equivocal.  While Mr Buley, instructed through CPAG, appeared on behalf of the individual claimants rather than of CPAG corporately, it is noteworthy that all three claimants were, through him, seeking entirely separate hearings.  Nor is a gain in user-friendliness necessarily achieved if, in order to achieve an interpretation offering advantages in terms of greater flexibility and reduced practical and emotional burdens for claimants, safeguards are required (in terms of a need for directions in advance of a hearing and for careful explanations at the outset of any hearing) which are of a complexity which may realistically prove beyond the ability of many claimants to grasp and which may prove something of a hostage to fortune in opening up further grounds for appeal to the Upper Tribunal.

33.            Accordingly, for rather more convoluted reasons, we agree with Judge Williams in paragraph 18 of PJ when he said this of the language of paragraphs 4 and 5 of the Practice Statement:

“In my view that language refers to the whole decision-making process of a tribunal when hearing and considering an appeal in a particular session, whether making case management decisions, hearing evidence, considering papers, finding facts or reaching any procedural, provisional, or final decision on them.”

Concurrent hearings

34.            It must therefore follow that if there is a concurrent hearing of both an ESA appeal and a DLA appeal there is an error of law in relation to the ESA appeal.  We include in the category of a concurrent hearing cases in which the hearings in each appeal are conducted separately if there is no announcement of the decision on the first appeal before proceeding to the hearing of the second.  In such a case the parties can have no clue as to the view that has been taken by the members of the tribunal of the evidence and submissions on the first appeal or whether that view might alter as a result of something raised in the second appeal.  Accordingly, we see no difference in substance between such a case and what might be called a fully concurrent hearing where all issues in both appeals are discussed together.

35.            The error of law typically lies in the knowing taking part of an additional unauthorised person (ie in practice the DQM from the DLA tribunal) in the function of making a decision on the ESA appeal.  That is in essence the principle affirmed by the Court of Appeal in Coppard v Customs and Excise Commissioners [2003] EWCA Civ 511, [2003] QB 1428.  That case was concerned with the question of whether a Circuit Judge sitting as a High Court Judge who neither knew nor ought to have known that he was not actually authorised to do so was a “judge-in-fact”, so that his judgment and his office was validated.  In holding that he could be, the Court of Appeal nonetheless reiterated that a want of authority in the person who has purported to give a judgment in a case provides a ground in itself for the setting aside of the judgment and cannot be relegated to the status of an error in procedure which does not in itself invalidate what has been done.  We consider that the importance accorded by the Court of Appeal at 1433F in terms of the rule of law and of constitutional propriety, to the issue of qualification for judicial office, extends also to the question of who has authority to make decisions on the appeals of benefit claimants, albeit that such appeals are on a smaller and more everyday scale than cases in the High Court.

36.            We find ourselves unable to accept the analysis of Judge Lane in WS that in a concurrent appeal two distinct tribunals could be regarded as hearing two distinct appeals during the course of the hearing and that there was no reason to suspect, in the absence of specific evidence to the contrary, that all the tribunal members concerned could not be trusted to act in conformity with their legal duties and that in particular the DQM would intervene improperly at the deliberation stage of the ESA appeal after the hearing.

37.            We of course acknowledge and affirm the judicial integrity with which members of tribunals approach their duties.  However, that can only go so far when the nature and implications of the legal duties of the members are as shadowy as, with respect, they remain if concurrent hearings are allowed.  Once it has been decided that the “numbers requirement” in the Practice Statement applies to all stages of the hearing as described above, we cannot accept that the participation of the DQM in discussion of “features of the appeal which require common input” does not amount to taking part in the making of the decision on the ESA appeal.

38.            In paragraph 31 of WS Judge Lane dealt with probably the most common such feature, a healthcare professional’s report for ESA purposes which has been put into evidence by the Secretary of State in the DLA appeal:

“At the preview, the tribunal would have rightly discussed the pros and cons of the PCA report [i.e. the healthcare professional’s report] as relevant to DLA issues.  The DQM would have had no interest in the technicalities of the report specific to IB only.  At the hearing, the DLA tribunal would have had to deal with disputes about the PCA report, whether or not the IB appeal was heard at the same time, since it had already been put in issue.  The DLA and IB specific issues were kept separate.  After the DLA part of the hearing, it would generally make no difference if the DQM remained in the room as a non-participant since the PCA issues relevant to DLA were already aired.  The ’IB specific’ issues would be of no interest to him, though consistencies or inconsistencies in subsequent evidence which were relevant to DLA issues, would be.”

We cannot agree that it is possible to separate the purposes for which the DQM would have participated in the discussion and evaluation of the healthcare professional’s report in that way. The more the commonality of the general issues in the DLA and ESA appeals, a justification put forward for hearing them together, is emphasised, the harder it is to separate the purposes for which a common element of the evidence is evaluated. In our judgment what was described by Judge Lane above constituted an unauthorised participation by the DQM in the making of the decision on the ESA (IB) appeal.

39.            It also follows from the approach which we have found to be required that we disagree with Judge Williams’ statement in paragraph 19 of PJ that a tribunal or tribunals could hear both a DLA appeal and an ESA appeal at the same session (which statement was in our view intended to encompass what we have called concurrent hearings), provided that they proceeded correctly in handling each appeal.

40.            It follows that each of the ESA appeals must be allowed and the decisions on ESA of each of the tribunals set aside.

41.            What then of the DLA appeal in a concurrent hearing, if the decision in the ESA appeal has to be set aside on the ground that an unauthorised person has participated in the making of the tribunal’s decision?  The tribunal will have been properly constituted in respect of the DLA appeal and no unauthorised person will have participated in the decision on that appeal.  Mr Buley for the appellants submitted that, however carefully the hearing was conducted and whichever order the appeals were considered in, there was an inevitable breach of the principles of natural justice.

42.            We leave aside the issues of whether there could be circumstances in which tribunals in a concurrent hearing can fairly take account of all the evidence and documents in both appeals in relation to each, and in particular a healthcare professional’s ESA report in relation to the DLA appeal, if such evidence and documents have not in advance of the hearing been expressly put into the evidence for the other appeal by a party or a direction to that effect has not been given by a FtT judge.  For present purposes, we assume that a direction along those lines has been given far enough in advance to give the claimant and any representative a fair opportunity of considering their response.  Mr Buley’s skeleton argument, noted in paragraph 22 above, that the DQM would be excluded or marginalised from participation in a decision in which s/he was entitled to take full part would appear to extend to this situation.

43.            The argument appears most clearly if the tribunal were to attempt to deal with the ESA issues first, requiring the judge and the medical member to take a view as between the opinions in the healthcare professional’s report and the claimant’s own evidence of the effect of his conditions on him and criticisms of the healthcare professional.  Whatever view those members have taken for the purposes of ESA, the DQM (on the proper assumption that the DQM has faithfully tried to keep out of the deliberations specific to ESA) will be at a disadvantage in the evaluation of the healthcare professional’s opinions for the purposes of DLA.  The argument in natural justice terms would be that, in the decision-taking process following a concurrent hearing, there had been an element of pre-judgment by the judge and medical member, based on determinations in which the DQM had no part, that constituted bias, in contravention of the principles set out in paragraph 7 of the decision of the Tribunal of Commissioners in R(U) 3/88.  We find force in that submission.

44.            The force would be lessened, in relation to the DLA appeal only, if the tribunal approached the DLA appeal first and the ESA appeal second (without an announcement of a decision on the DLA appeal before embarking on the hearing of the ESA appeal).  It could be argued that, provided that the healthcare professional’s report had become part of the evidence in the DLA appeal by a fair procedure, the DQM would have as full a part in the evaluation of it as if the DLA appeal had been heard entirely on its own.  The counter-argument would be that, even so, the views taken on the DLA appeal would in a concurrent hearing necessarily be provisional, in the sense that something relevant to DLA that came up the course of the hearing of the ESA appeal could and would properly be taken into account in the making of the DLA decision.  Thus the DQM’s contribution would not be on a par with that of the judge and the medical member.

45.            We are not persuaded that (provided always the evidence had been handled fairly) if at the decision-taking point the tribunal approached the DLA appeal first, the DLA decision would necessarily fall along with the ESA decision.  Whether a DLA decision (if otherwise unimpeachable) is sustainable even in circumstances where the ESA decision falls may have to be looked at in a case where the point arises.  We have concluded that we do not need to express a definite conclusion on those difficult matters.  In the three DLA appeals before us, the tribunals’ decisions must be set aside for other errors.

46.            In relation to MB, we allow his DLA appeal on the ground set out in paragraph 3 of schedule 2 hereto.  In IH’s case, we allow the DLA appeal because we consider he was given no fair opportunity to address the differing nature of the two benefits concerned and the way in which the evidence was applied to each.  We also consider that findings in relation to his medication and to the frequency and extent of exacerbations were insufficient.  We allow EK’s DLA appeal on the grounds in paragraph 10 of schedule 2.

47.            We are therefore concerned with the directions to be given for the rehearing of the appeals. Even if in a concurrent hearing on the basis assumed above there might not be a consequent breach of the principles of natural justice in the DLA appeal, the decision in the ESA appeal would be fatally flawed for the reasons we have given. It would therefore be impossible to direct that there should be a concurrent hearing, because there could not be a proper hearing of the ESA appeal on that basis, even with all the precautions and protections suggested by Charles J below. Thus the only direction that can be given is for separate hearings of the DLA and ESA appeals for each of the three claimants, unless Mr Cooper’s solution of consecutive hearings, starting with the DLA appeal, were to be an acceptable alternative.

Consecutive hearings

48.            We can deal with this issue quite shortly.  As discussion progressed at the oral hearing the severe problems inherent in a consecutive hearing, with an announcement of the decision on the first appeal before hearing the second, became clearer and clearer, such that the true choice on the current state of the legislation and the Senior President’s Practice Statement is an all or nothing one.  Either there have to be completely separate hearings, as advocated on behalf of the claimants in the appeals before us, or there has to be a concurrent hearing of both appeals with all evidence and documents in each appeal put into the other by a fair procedure.

49.            The fundamental problem with consecutive hearings is this.  Even assuming the order of hearing is calculated to obviate the problem of the downgrading of the contribution of the DQM, that is by taking the DLA appeal first, the claimant and any representative would be put in an impossibly unfair position in relation to the ESA appeal.

50.            Let us say that the decision on the DLA appeal is not to the advantage of the claimant.  Let us also assume what would be exceptionally difficult to achieve in practice, that the tribunal has been able to give some short oral explanation of the reasoning behind its decision in the DLA appeal.  In our judgment, there would a real danger of that giving an ineradicable impression of the minds of the judge and the medical member already having been made up against the interests of the claimant, even in those cases where it was possible to attempt to explain that the decision rested on the particularities of the restrictive conditions of entitlement to DLA rather than an adoption of the opinions of the healthcare professional over the claimant’s own evidence.  But, much more seriously, the claimant, even with the most competent and experienced representation, could not fairly be expected in what would inevitably be a short interval between the hearings to consider how to react to the decision on the first appeal, what submissions could be made and whether it was wished to obtain further evidence or advice.  If on the other hand there were completely separated hearings, the outcome of a DLA appeal could be relevant evidence in a subsequent ESA appeal, but the claimant and any representative would have had the opportunity to consider the implications of the decision and what further evidence and/or submissions should be made, possibly after having obtained a written statement of reasons.  There would also have been the opportunity to consider applying for permission to appeal against the decision on the DLA appeal and to bring the grounds of any application to the attention of the tribunal on the ESA appeal.  None of that would be possible in the context of a consecutive hearing.  The claimant would, in the event of an adverse decision on the first appeal, be substantially worse off than if there had been separate hearings.  That cannot be right and indicates that the claimant would in consecutive hearings be deprived of a fair opportunity of making his or her case on the second appeal.

51.            Accordingly, as neither of the alternatives of a concurrent hearing or consecutive hearings is properly available, the only direction that can be given in the six appeals before us is for separate hearings, at any rate unless the Practice Statement is amended before the rehearings take place.  Should that occur, the parties may wish to take advantage of the “liberty to apply” provision which forms part of our decision.

The analysis and views of the minority (Charles J)

52.            The statutory purpose of the Practice Statement is to define the constitution of the members of the FtT who in relation to “every matter that may fall to be decided” are to “decide the matter” (see paragraph 15(1) of Schedule 4 to the 2007 Act).  As a matter of language, this paragraph and so the Practice Statement made pursuant to it, relates to every matter that may fall to be decided by the FtT.

53.            What are the “matters” that are being referred to?  The function of the FtT is to hear and determine an appeal from a decision usually of a Government Department but also of others in a wide range of jurisdictions.  So “every matter” could be read as referring to each and every appeal and so on the basis that the “matter” is the substantive decision on the appeal.  But, in line with the view of the majority, I have concluded that paragraph 15(1) of Schedule 4 to the 2007 Act is not so confined or directed and that it extends to every matter that may fall to be determined by the tribunal on an appeal to it.  In my view, this is supported by paragraph 10 of the Practice Statement because it shows that the Practice Statement is directed to interlocutory matters that fall to be decided as well as to the final decision.

54.            So, in my view, the provisions as to the constitution of the tribunal in that Practice Statement are directed to who are to make up the tribunal when it decides each and every matter that may fall to be decided by it in hearing and determining an appeal and so throughout the process of deciding an appeal to the FtT.

55.            That process includes the making of procedural decisions, the making of findings of fact (and so decisions on the facts) and the application of the statutory tests to the facts found (and so decisions of law).  The Practice Statement (see paragraphs 7, 8 and 10) makes express provision for some of those decisions to be made by a FtT that does not consist of the persons prescribed by paragraphs 4 and 5 thereof.  But, when as in the cases before us these do not apply, the issues on these appeals arise.

56.            As Judge Williams pointed out, the appeal process includes the reading, hearing and testing of the written and oral evidence.  And, at the heart of the issues before us, is the question whether the reading, hearing and testing of the written and oral evidence and argument is “a matter that falls to be decided by the FtT”.  If it is, then as Judge Williams concluded, the FtT is not properly constituted during the hearing of the evidence if the ESA and DLA appeals are heard together.  If it is not, then as Judge Lane decided, the Practice Statement does not preclude the two FtTs (with the same judge and medical member) hearing  and testing  the evidence  in both appeals if they are heard together or at different times.

57.            The appeal has to be decided by the FtT on the written and oral evidence put before it, or which it introduces in the exercise of its inquisitorial function, and argument.  That evidence and argument is heard, tested and assessed making use of the qualifications and thus the experience of the members of the FtT. 

58.            Naturally, I agree with the majority that this is a part of the whole process or function of decision making by the tribunal but, in my view, both as a matter of language and purpose the reading, hearing and testing of written and oral evidence and argument is not a matter “that falls to decided by a FtT”.  Rather, it is the part of the process of the appeal or the performance of the function of decision making (or of deciding any matter in a case before the tribunal - as per paragraph 14 of Schedule 4 to the 2007 Act) that provides the bases for the making of the decisions that fall to be made. 

59.            As a matter of language, paragraph 15(1) of Schedule 4 to the 2007 Act and the Practice Statement do not refer to the hearing or the decision making process, but to matters that fall to be decided.  As a matter of purpose, the FtT is meant to be user friendly and flexible and a tribunal that provides a proportionate process.  These aims would be thwarted if evidence that is common and relevant to both a two member tribunal and a three member tribunal could not be heard together, or on the appellants’ primary argument consecutively with common members, and so had to be dealt with by separate tribunals even in the unlikely event that they could sit on the same day.

60.            But, in my view this integral part of the process is severable from the actual making of interlocutory and final decisions that fall to be made within the process because it is the foundation for, and logically precedes the making of, those decisions.

61.            So, I do not agree with the majority that the process or function of decision making cannot be differentiated from the making of the decision on every interlocutory or final matter that falls to be decided during that process and in performing that function.

62.            This approach and conclusion means that in my view, and contrary to the view of the majority, the Practice Statement does not found the argument that it would be an error of law for the ESA and DLA to be heard together or consecutively at the same session, or on different days, by an FtT with common legal and medical members.  However, it places more burdens on the members of the FtTs in respect of:

i)                their analysis of the evidence, decision making and the giving of reasons than would be the case if the two appeals were heard by differently constituted FtTs, because the decisions of fact and the application of the statutory provisions to those facts have to be made by the medical and legal members on the ESA appeal and by them and the DQM on the DLA appeal, and

ii)              in making the findings of fact on each appeal the relevant members of the tribunal have to have proper regard to the purpose for which evidence was prepared and forms completed.

63.            But this is simply a reflection of the correct approach in law to be taken by FtTs.  Additionally, the hearing and determination of appeals by FtTs with common membership has the potential for introducing arguments on, unfairness, apparent bias and the consideration of irrelevant matters by either or both of the FtTs.  I return to this under the next heading.

Consequences of that conclusion

64.            This conclusion means that, of itself, it is not an error of law for an ESA appeal and a DLA appeal to be heard together or consecutively (at the same session or later) by FtTs comprising the same judge and medical member.

65.            It follows that FtTs can approach the issue whether they should do this and thus the application of Rule 5, in each appeal (initially through the judge – see paragraph 10 of the Practice Statement) with flexibility and it would be inappropriate to lay down strict guidance as to how this should be done, save that the course taken must be clearly explained and implemented to ensure that it is apparent that on each appeal the decision on every matter that falls to be decided by the FtT in hearing and deciding the appeal is made by the relevant FtT (and thus on the ESA appeal by the judge and the medical member) and on the DLA appeal (by the judge, the medical member and the DQM).

66.            In my view, it is practical to do this fairly, and without apparent bias, or any failure to take into account all and only relevant factors or any other error of law. 

67.            Procedural fairness is something that must be assessed by reference to the character of the decision making body, and the circumstances and subject matter of the case (see, for example, the commentary, cases and passages cited under the heading “Fair hearings – General Aspects / The Preservation of Flexibility” in Wade and Forsyth Administrative Law 10^th edition at pages 420/1).  Also, the modern test for apparent bias (an aspect of natural justice and fairness) stresses the importance of the circumstances of the case (see Wade and Forsyth at 384/5 and mid 386, and the summary of the law in R (PD) v West Midlands and North West Mental Health Tribunal [2004] EWCA Civ 311; [2004] MHLR 174 at paragraphs 6 and 8, which confirms that the test is based on what the fair minded and informed observer would think). 

68.            So a flexible approach to fairness falls to be applied to the conduct and decision making of differently constituted FtTs on ESA and DLA appeals and, in my view, a consideration of what the fair minded and informed observer would think is a helpful one to use in the assessment of the issue whether the process is fair.  In Sengupta v Holmes [2002] EWCA Civ 1104, which concerned the position of a judge who has refused permission to appeal on a paper application hearing the appeal and thus whether the fair minded and informed observer would doubt the ability of the decision maker (there the refusing judge) to change his mind Laws LJ said at [36]:

“…Absent special circumstances a readiness to change one’s mind upon some issue, whether upon new information or simply on further reflection, and to change it from a previously declared position, is a capacity possessed by anyone prepared and able to engage with the issue on a reasonable and intelligent basis.  It is surely a commonplace of all the professions, indeed the experience of all thinking men.”

69.            By analogy, the approach in Sengupta would support the view that the members of the two FtTs as persons appointed because of their qualifications and experience are, as separate and differently constituted FtTs, very capable of making decisions on the ESA and DLA appeals from a common evidential base.  This is because in each process, as a matter of general course, they would, in carrying out their judicial function, assess the relevance and weight of the constituent parts of the evidence in the context of the decisions they have to make.  And, in my view, this would be easily understood by the parties.  

70.            On a general application of the flexible approach to fairness, I am of the view that the underlying nature and role of a FtT (reflected in the overriding objective of the Rules) and the qualifications and roles of its members founds the views that:

i)                It is not unfair for an ESA appeal and a DLA appeal to be heard together or consecutively (at the same session or later) by FtTs comprising the same judge and medical member provided that:

a)               clear (or sufficiently clear) directions, explanations and reasoning are given to demonstrate that the FtTs recognise their differing constitutions and functions, and

b)               this recognition is reflected in the conduct of the hearing.

ii)              Indeed, it seems to me that this is a sensible, proportionate and fair approach by the two FtTs to deal with appeals that have common issues and that the tribunal members can, as Judge Lane said, be trusted to recognise and fulfil their roles and the terms of the Practice Statement, in the manner directed and explained above, and

iii)            a fair minded and informed observer would reach the same conclusions.

71.            So, for example, in my view, in those circumstances if an ESA appeal and a DLA appeal are heard together:

i)                the DQM can lawfully take an active part as a member of the DLA FtT in the reading and hearing of all of the evidence on both appeals, and so, for example,

ii)              the DQM can consider and take part in the testing of the ESA85, and

iii)            the judge and the medical member can have regard to the product of the participation of the DQM on the evidence during the hearing when they are deciding the ESA appeal, just as they can have regard to information derived from other sources or with other assistance and which they assess applying their expertise and experience.

72.            Indeed, CDLA/3896/2006 and CIB/4331/2001, referred to in paragraph 16(ii) above, show that claim forms and evidence prepared for one benefit claim / appeal (e.g. an ESA85) can and sometimes should be taken onto account in respect of the other when the two appeals are heard by differently constituted FtTs at different times.  During argument problems were identified in hearing the appeals consecutively at the same session or on different days whichever appeal was heard first.  In particular, in my view there are problems relating to how the written and oral evidence should be divided between the two appeals and how the views of the FtT that sits first should be conveyed to, and taken into account in, the second hearing.  Such problems are less difficult if there is some time between the hearings because then the record and full reasons for the first decision can be made available.  I recognise that the fairness of the same judge and /or medical member sitting on the second appeal should be kept under consideration, but I reject the view that R(U)3/88 gives or purports to lay down any rule or strict guidance on this issue, or indeed the issue before it, namely whether a case that is remitted to a FtT should be freshly constituted in whole or in part.  These, like many issues of fairness and/or apparent bias, are fact and issue sensitive.

73.            However, it seems to me that generally the best course to adopt would be to direct either that:

i)                the two appeals are heard together (rather than consecutively at the same session) and that all the evidence in one should stand as evidence in the other, or that

ii)              one is to be heard some time after the other.

I prefer a direction that the appeals be heard together to one of consolidation because it recognises the common and divergent issues in the two appeals.

74.            If the appeals are to be heard some time apart the usefulness of having common membership diminishes because memories fade and, unless all that is relevant in the second appeal is the reasoning and findings on the first, the relevant overlapping evidence may well have to be reheard, re-read and re-analysed.  Also the claimant will have to attend twice.  These points and problems of re-listing before the same judge and medical member may well mean that the overriding objective would be best served by the second appeal being heard by a differently constituted FtT, with access to defined documents, the record of proceedings, and the findings and reasoning of the first FtT.  But, if one or both of the judge or the medical member are listed to hear the second appeal that, of itself, would not be a reason for not going ahead.  Rather, the issue would be whether this would be unfair or give rise to apparent bias.

75.            Hearing the appeals together at the same session triggers the need for the FtTs to carefully consider the directions, explanations and reasons they give.  To my mind, it is likely to be easier to formulate these if the appeals are heard together rather than consecutively on the same day because difficulties concerning, and confusion caused by, running order and the DQM coming in later than, or leaving earlier than, the judge and the medical member would be reduced or eliminated.

76.            If I had been in the majority, by way of a general approach to be considered by FtTs when giving directions, explanations and reasons I would have suggested that:

i)                When directions are given that the two appeals are to be heard together and that all the evidence in one should stand as evidence in the other:

a)               the constitution of the two FtTs required by the Practice Statement and my view on its meaning and effect should be referred to,

b)               short reasons for the directions should be given, and

c)               subject to any further direction, it should be recorded that all three members and thus both FtTs will take part in the examination of and have access to all of the written and evidence in both appeals.

ii)              At the start of the hearings:

a)               the directions and the reasons given for them should be referred to,

b)               the issues on the two appeals should be set out in general terms and, by reference thereto and the reasons for the directions , it should be explained that each of the ESA and DLA tribunals will separately consider the totality of the relevant evidence in determining the separate appeals,

c)               the parties should be reminded that the DQM will be asking questions and considering the factual and other issues only on the DLA appeal but the other members are dealing with both appeals, and

d)               the parties should be reminded to bear in mind when giving evidence and making their points that if they think that aspects of the evidence are irrelevant to, or have little or no weight in respect of, one or other appeal they should say so.

(iii)          During the hearing the members of the two FtTs should be alert to the point that there are two appeals to be decided by differently constituted tribunals, and

(iv)          in their reasons, the two FtTs should make clear what they have relied on by way of evidence, the facts found and their reasoning based thereon.  Such reasoning should include appropriate passages recognising the care that should be taken in the assessment and application of material prepared in respect of one claim / appeal in the other appeal (e.g. the ESA85), and thus why, if it be the case, it was considered relevant and had weight on the other appeal.

77.            It follows that whilst recognising their much greater experience in this type of work I do not agree with the view of the majority on the correct meaning and application of the Practice Statement. And, from my different starting point on that, I consider that the explanation I have suggested concerning the way in which the hearings of the two appeals will be conducted and the decisions in them would be and have been made, would be readily understood and applied by the parties and would form the basis for a fair disposal of the two appeals.

The application of the above to the six appeals and further points that arise on them.

78.            I set this out in the Second Schedule to this decision.

 

Mr Justice Charles CP

 

J. Mesher

 Judge of the Upper Tribunal

 

C.G.Ward

Judge of the Upper Tribunal

Date: 11 March 2013

FIRST SCHEDULE

Paragraph 15 of Schedule 4 to the 2007 Act

Composition of tribunals

15 (1) The Lord Chancellor must by order make provision, in relation to every matter that may fall to be decided by the First-tier Tribunal or the Upper Tribunal, for determining the number of members of the tribunal who are to decide the matter.

(2) Where an order under sub-paragraph (1) provides for a matter to be decided by a single member of a tribunal, the order–

(a) must make provision for determining whether the matter is to be decided by one of the judges, or by one of the other members, of the tribunal, and

(b) may make provision for determining, if the matter is to be decided by one of the other members of the tribunal, what qualifications (if any) that other member must have.

(3) Where an order under sub-paragraph (1) provides for a matter to be decided by two or more members of a tribunal, the order–

(a) must make provision for determining how many (if any) of those members are to be judges of the tribunal and how many (if any) are to be other members of the tribunal, and

(b) may make provision for determining–

(i) if the matter is to be decided by persons who include one or more of the other members of the tribunal, or

(ii) if the matter is to be decided by two or more of the other members of the tribunal,

what qualifications (if any) that other member or any of those other members must have.

(4) A duty under sub-paragraph (1), (2) or (3) to provide for the determination of anything may be discharged by providing for the thing to be determined by the Senior President of Tribunals, or a Chamber President, in accordance with any provision made under that sub-paragraph.

(5) Power under paragraph (b) of sub-paragraph (2) or (3) to provide for the determination of anything may be exercised by giving, to the Senior President of Tribunals or a Chamber President, power to determine that thing in accordance with any provision made under that paragraph.

(6) Where under sub-paragraphs (1) to (4) a matter is to be decided by two or more members of a tribunal, the matter may, if the parties to the case agree, be decided in the absence of one or more (but not all) of the members chosen to decide the matter.

(7) Where the member, or any of the members, of a tribunal chosen to decide a matter does not have any qualification that he is required to have under sub-paragraphs (2)(b), or (3)(b), and (5), the matter may despite that, if the parties to the case agree, be decided by the chosen member or members.

(8) Before making an order under this paragraph, the Lord Chancellor must consult the Senior President of Tribunals.

(9) In this paragraph "qualification" includes experience.

The Practice Statement: Composition of Tribunals in Social Security and Child Support Cases in the Social Entitlement Chamber on or after 3 November 2008

…

 

2.  In exercise of the powers conferred by the 2008 Order the Senior President of Tribunals makes the following determinations and supplementary provision.

 

3. The number of members of the Tribunal must not exceed three.

4. Where the appeal relates to an attendance allowance or a disability living allowance under Part III of the Social Security Contributions and Benefits Act 1992, the Tribunal must, subject to paragraphs 8 to 13, consist of a Tribunal Judge, a Tribunal Member who is a registered medical practitioner, and a Tribunal Member who has a disability qualification as set out in article 2(3) of the Qualifications Order.

5. Where –

a. the appeal involves the personal capability assessment, as defined in regulation 2(1) of the Social Security (Incapacity for Work)(General) Regulations 1995;

b. the appeal involves the limited capability for work assessment, as defined in regulation 2(1) of the Employment and Support Allowance Regulations 2008;

c. the appeal involves the determination of limited capability for work- related activity within the meaning of regulations 34 and 35 of the Employment and Support Allowance Regulations 2008;

….;

the Tribunal must, subject to paragraphs 7 to 14, consist of a Tribunal Judge and a Tribunal Member who is a registered medical practitioner.

6. In any other case the Tribunal must consist of a Tribunal Judge.

7. The Chamber President may determine that the Tribunal constituted under paragraph 5 or 6 must also include –

a. a Tribunal Member who is an accountant within the meaning of Article 2(i) of the Qualifications Order, where the appeal may require the examination of financial accounts;

b. an additional Member who is a registered medical practitioner, where the complexity of the medical issues in the appeal so demands;

c. such an additional Tribunal Judge or Member as he considers appropriate for the purposes of providing further experience for that additional Judge or Member or for assisting the Chamber President in the monitoring of standards of decision-making.

8. Where the Chamber President considers, in a particular case, that a matter that would otherwise be decided in accordance with paragraphs 4 or 5 only raises questions of law and the expertise of any of the other members is not necessary to decide the matter, the Chamber President may direct that the Tribunal must consist of a Tribunal Judge, or a Tribunal Judge and any Tribunal Member whose experience and qualifications are necessary to decide the matter.

9….

10. A decision, including a decision to give a direction or make an order, made under, or in accordance with, rules 5 to 9, 11, 14 to 19, 25(3), 30, 32, 36, 37 or 41 of the 2008 Rules may be made by a Tribunal Judge, except that a decision made under, or in accordance, with rule 7(3) or rule 5(3)(b) to treat a case as a lead case (whether in accordance with rule 18 (lead cases) or otherwise) of the 2008 Rules must be made by the Chamber President.

 

11.…

 

Section 22 of the 2007 Act

 

22 Tribunal Procedure Rules

 

(1) There are to be rules, to be called "Tribunal Procedure Rules", governing–

 

(a) the practice and procedure to be followed in the First-tier Tribunal, and

 

(b) the practice and procedure to be followed in the Upper Tribunal.

 

(2) Tribunal Procedure Rules are to be made by the Tribunal Procedure Committee.

 

(3) …

 

(4) Power to make Tribunal Procedure Rules is to be exercised with a view to securing–

 

(a) that, in proceedings before the First-tier Tribunal and Upper Tribunal, justice is done,

 

(b) that the tribunal system is accessible and fair,

 

(c) that proceedings before the First-tier Tribunal or Upper Tribunal are handled quickly and efficiently,

 

(d) that the rules are both simple and simply expressed, and

(e) that the rules where appropriate confer on members of the First-tier Tribunal, or Upper Tribunal, responsibility for ensuring that proceedings before the tribunal are handled quickly and efficiently.

 

(5) In subsection (4)(b) "the tribunal system" means the system for deciding matters within the jurisdiction of the First-tier Tribunal or the Upper Tribunal.”

The overriding objective and management powers set out in the relevant rules (The Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008)

Overriding objective and parties’ obligation to co-operate with the Tribunal

 

2. (1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.

 

(2) Dealing with a case fairly and justly includes—

 

(a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties;

 

(b) avoiding unnecessary formality and seeking flexibility in the proceedings;

 

(c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;

 

d) using any special expertise of the Tribunal effectively; and

 

(e) avoiding delay, so far as compatible with proper consideration of the issues.

 

(3) The Tribunal must seek to give effect to the overriding objective when it—

 

(a) exercises any power under these Rules; or

 

(b) interprets any rule or practice direction.

 

(4) Parties must—

 

(a) help the Tribunal to further the overriding objective; and

 

(b) co-operate with the Tribunal generally.

 

Case management powers

5.—(1) Subject to the provisions of the 2007 Act and any other enactment, the Tribunal may regulate its own procedure.

 

(2) The Tribunal may give a direction in relation to the conduct or disposal of proceedings at any time, including a direction amending, suspending or setting aside an earlier direction.

 

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

(a) …

 

(b) consolidate or hear together two or more sets of proceedings or parts of proceedings raising common issues, or treat a case as a lead case (whether in accordance with rule 18 (lead cases) or otherwise);

 

(c) …

 

(d) permit or require a party or another person to provide documents, information, evidence or submissions to the Tribunal or a party;

 

(e) deal with an issue in the proceedings as a preliminary issue;

 

(f) …

 

(g) decide the form of any hearing;

 

(h) –(j) …

 

(k) transfer proceedings to another court or tribunal if that other court or tribunal has jurisdiction in relation to the proceedings and—

(i) because of a change of circumstances since the proceedings Ire started, the Tribunal no longer has jurisdiction in relation to the proceedings; or

(ii) the Tribunal considers that the other court or tribunal is a more appropriate forum for the determination of the case; or

 

(l) …

 

SECOND SCHEDULE

MB:  CDLA/333/2011 and CE/1039/2011

1.               As was common ground, the combination of the record of proceedings and the reasons given do not indicate with sufficient clarity (a) that the two FtTs sufficiently recognised their respective roles and (b) the reasoning they applied to each appeal.

2.               For example, the record of proceedings indicates that the ESA appeal was heard by three members.  Of itself, this could be put down as a typing error, but even on this assumption there is an insufficient record of the recognition of the points (a) that the appeals had to be decided by the differently constituted tribunals, and (b) that in assessing and applying the evidence appropriate and sufficient attention needed to be paid to the sources of the evidence, the reasons for which it was primarily produced and its application to the ESA tests on the one hand and the DLA tests on the other.

3.               Additionally, on the DLA appeal there is a dispute as to whether the claimant’s daughter gave evidence, relied on and recorded by the tribunal on mobility, namely that she had noted a deterioration in the claimant “within the last 12 months”.  On the evidence before us, I am not in a position to resolve this dispute.  But, on the assumption that she did say that, I consider that the conclusion that the claimant “was exaggerating his condition”, which is a finding on his credibility, is inadequately reasoned having particular regard to (a) the medical evidence taken as a whole and its timing, (b) the error on medication in Dr Wong’s report which was at odds with the correct evidence on this of the other two doctors, (c) the point that Dr Kolita’s report was prepared for the ESA claim and did not address the DLA tests (and in particular the care needs identified by Dr Richards), (d) the gap of only somewhat over 5 months between the ESA report (which itself evidenced a not insignificant level of disability by allocating 6 points to each of “standing and sitting” and “bending or kneeling”) and the report of Dr Richards that the claimant cannot walk 25 metres, needs help with dressing and cannot grip saucepans or prepare ingredients for cooking, (e) the vagueness of the time span of the recorded evidence of the claimant’s daughter on deterioration and the more specific evidence of the claimant (for which there was at least some support from the medical evidence) that there had been no change between February and June 2010.  Although the FtT got its cross-referencing in a muddle (possibly itself a further error of law), it also appears to have sought to rely for ESA purposes on its conclusions from the DLA case as to the claimant’s credibility thus the majority of the above criticisms establish an error of law on the ESA decision also on this ground.

IH:  CE/697/2011 and CDLA/698/2011

4.               Paragraphs [1] and [2] above effectively apply to IH’s appeals as well as to MB’s appeals.  Also, in his case the decision notice and the statement of reasons for the ESA appeal also record the case was decided by three not two members, which means that the typing error point is weaker.  Further, he was the only unrepresented appellant and the record of proceedings and the Reasons do not demonstrate that the approach taken by the two FtTs was explained to him in a way that gave him a fair opportunity to understand and address the issues that formed the nub of the conclusions on both appeals.

EK:  CDLA/2187/2011 and CE/2189/2011

5.               There is no record of proceedings but I agree with the Secretary of State that the statement of reasons in each appeal show that all present were aware that the two appeals were being heard together and that the ESA appeal was being decided by the judge and medical member and the DLA appeal by them and the DQM. 

6.               The further issue remains whether the approach taken by the two tribunals and their recognition and explanation to the parties of the impact of the Practice Statement, the different issues on the appeals and the issues relating to the relevance and weight of material evidence prepared for one claim on the other, was sufficient to ensure that the hearings were fairly and properly conducted.

7.               The lack of a record of the proceedings causes difficulty as to this and what I know falls well short of suggestions on the general approach that should be considered by FtTs in respect of the directions, explanations and reasons they give.  On the other hand, the statement of reasons can be relied on to show that there was some explanation and recognition of the points made in the last sentence of the preceding paragraph and no objection was taken by the claimant’s representatives.

8.               On balance, I have concluded that on the material before us, and so without any record of the proceedings, it would be wrong to effectively assume from the statement of reasons alone that adequate explanations were given and the hearings were fairly and properly conducted.   

9.               Also, on the ESA appeal, I have concluded on the material before us that the conclusion in paragraph 16 of the statement of reasons that the GP’s evidence on descriptor 5(a) (as it then was) which would have given the claimant 15 points is inadequately reasoned.  First, the point made by reference to the inclusion of leg pain in the reasons given by the GP, namely that that there is no involvement of the leg in descriptor 5, though correct on a technical level, is insufficient to exclude the possibility that the claimant may have qualified as a result of the other causes identified by the GP.  Secondly, and more importantly there is (a) no record of, and (b) no adequate reasoning by reference to, evidence or questioning to found the conclusion that the GP’s report arose from the claimant’s own description given to the GP, so as to support the tribunal’s preference for the objective view of the examining doctor.  This is a credibility finding so far as the claimant is concerned and, so far as the GP is concerned, it is an assertion or finding that reflects on his professionalism.  For example, there is no record or reasoning based on questioning of the claimant concerning the nature of the two examinations to provide an evidential base for the tribunal’s effective conclusions that (a) the GP simply relied on self reporting, did not carry out any physical examination, or carried out a less thorough physical examination than the examining doctor, and so (b) the GP either was not objective or was less objective than the examining doctor. 

10.            And, in my view, on the DLA appeal the credibility finding that the claimant “somewhat exaggerated her difficulties” and the finding that the tribunal prefer “the views of both the examining doctor for ESA and the examining medical practitioner, which agree with each other to the expressed view of the appellant” are not adequately explained, and it is unclear how far they were fairly tested having regard to:

a.                the evidence from the claimant’s GP and a consultant in the DLA appeal papers and the evidence from her GP (a different doctor at the same address) in the ESA appeal papers which support quite a high level of disability, and so

b.               the point that they give some support to the claimant and contradict the medical evidence preferred by the tribunal.

That medical evidence advanced by the claimant is not referred to by the tribunal, save in their reference to “the totality of the evidence” and in my view it needed to be if the tribunal’s credibility finding and preference was to be adequately reasoned.