DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

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

The decision of the Manchester First-tier Tribunal dated 02 February 2012 under file reference ENT/00386/2011 involves an error on a point of law. The First-tier Tribunal’s decision is set aside.

The Upper Tribunal is not in a position to re-make the decision under appeal. It therefore follows that the Appellant’s appeal against the Secretary of State’s decision dated 14 September 2011 is remitted to be re-heard by a different First-tier Tribunal, subject to the Directions below. 

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

DIRECTIONS

The following directions apply to the re-hearing:

(1) The re-hearing will be at an oral hearing.

(2) The new First-tier Tribunal should not involve the tribunal judge and members who considered this appeal on 26 April 2012.

(3) If the Appellant has any further written evidence to put before the tribunal, it should be sent to the tribunal office at Fox Court, 14 Grays Inn Road, London WC1X 8HN within one month of the issue of this decision, or such further time as is allowed by a Tribunal Judge in the War Pensions and Armed Forces Chamber of the First-tier Tribunal.

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

These Directions may be supplemented by further directions by a Tribunal Judge in the War Pensions and Armed Forces Chamber of the First-tier Tribunal.

REASONS FOR DECISION

The Upper Tribunal’s decision in summary

1. The Appellant’s appeal to the Upper Tribunal is allowed.  The decision of the Manchester First-tier Tribunal dated 26 April 2012 involves an error on a point of law and is set aside. The case now needs to be reheard by a new First-tier Tribunal.

2. The fact that this appeal to the Upper Tribunal has succeeded should not be taken as any indication of the likely outcome at the re-hearing before the First-tier Tribunal. This is because the present appeals succeed on a point of law. The new First-tier Tribunal, however, will have to revisit the facts.

The background to this appeal

3. The Appellant made a claim for a war disablement pension, arguing that his heart condition of systolic flow murmur was caused by service. The Secretary of State rejected that claim, deciding that the condition was neither caused nor made worse by service. The Appellant lodged an appeal with the First-tier Tribunal (FTT) of the War Pensions and Armed Forces Compensation Chamber (WPAFCC).

The preparations for the FTT hearing

4. I allow this appeal to the Upper Tribunal not because of anything that happened at the FTT hearing, but because of what happened before that hearing. I have concluded that there was in effect a breach of natural justice, resulting in the Appellant being denied a fair hearing (through no fault of the FTT which sat on the day). It is therefore important to analyse the process of preparing for the FTT hearing.

5. On 28 November 2011 the Appellant wrote to the FTT office giving notice both that he was collating further medical evidence and also identifying various matters which he said were in dispute.

6. On 16 December 2011 the WPAFCC Principal Judge wrote to the Appellant asking him “to let me know what evidence you are attempting to obtain and give me some timeframe in which you anticipate that this evidence will be available”.

7. On 24 December 2011 the Appellant replied, summarising the three types of evidence he was hoping to obtain, including support from Dr Bentley, his consultant respiratory physician.

8. On 6 January 2012 a WPAFCC tribunal clerk wrote to the Appellant, acting on the Principal Judge’s instructions, and asked for an update on progress.

9. On 23 January 2013 the Appellant wrote two letters to the FTT. The first was a reply to the clerk’s letter, with which he enclosed a short statement from his GP. The second was a longer letter to the Principal Judge, setting out what had been achieved as regards each of the three outstanding matters. As regards Dr Bentley, the Appellant indicated he would be following up with the consultant by telephone.

10. On 30 January 2012 the Principal Judge replied. The second and final paragraph of that short letter read as follows:

“So far as the information from Dr Bentley is concerned, I shall be grateful if you could indicate what it is that you expect him to say to support your case. It would appear that the SPVA have accepted that you do have a systolic murmur, so that if this is all that he will confirm then it would seem also to be superfluous.”

11. On 6 February 2012 the Appellant replied to the Principal Judge. He set out the various matters on which he hoped Dr Bentley would assist, including the effects of the condition on his quality of life. The Principal Judge’s secretary sent an acknowledgement but there does not seem to have been a substantive reply sent to that particular letter. That may well be because the Royal British Legion (RBL) then came on the scene as the Appellant’s representative.

12. On 24 February 2012 another WPAFCC Judge instructed the tribunal clerk to telephone the RBL “and ask whether Dr Bentley will be giving evidence at the hearing. Please say that it appears from the letter of 6/12/12 that his evidence would be more relevant in an assessment than in an entitlement appeal.” The clerk’s file note on 1 March 2012 simply records that he telephoned the RBL representative who said in turn that he would find out whether Dr Bentley would be attending.

The First-tier Tribunal hearing, decision and permission to appeal

13. The FTT heard the Appellant’s appeal at an oral hearing in Manchester on 26 April 2012. The Appellant attended with a friend; RBL and SVPA representatives were also both present. Dr Bentley did not attend. The FTT’s decision was to dismiss the appeal, concluding that the condition of systolic flow murmur was neither caused nor made worse by service. The FTT subsequently issued a statement of reasons, explaining that its finding on the evidence was that the Appellant had a systolic murmur in childhood and that the condition was constitutional rather than caused by external factors, such as the 1955 episode of rheumatic fever.

14. The Appellant applied for permission to appeal, citing four grounds: that the FTT (1) was not properly constituted as the medical member of the panel was not a cardiologist; (2) committed a procedural error by the approach to Dr Bentley’s evidence; (3) had no evidence or insufficient evidence to support its decision; and (4) did not give adequate reasons for its decision.

15. The WPAFCC Chamber President gave permission to appeal in the following terms:

“…The Principal Judge’s letter of 30 January was a perfectly accurate and proper reply to the Appellant’s letter of 23 January. However, it may have had the effect of deterring the Appellant from calling Dr Bentley as a witness, thereby depriving him of the opportunity of calling Dr Bentley to give evidence concerning the aetiology of the Appellant’s systolic murmur.”   

The proceedings before the Upper Tribunal

16. I then gave directions on the appeal. I indicated a provisional view on the first ground of appeal only:

“… as regards the first ground of appeal relating to the composition of the panel, my understanding is that there is no statutory requirement that an appellant’s panel include a specialist in a particular condition. The Senior President of Tribunals has issued a Practice Statement on the composition of tribunals. This simply refers to the tribunal medical member being “a registered medical practitioner”; he or she need not be an expert in the particular field of medicine in question (this was confirmed by Mrs Commissioner Parker, in the unreported Social Security Commissioner’s decision CSI/146/2003). Indeed, the problems associated with listing cases for hearing would be enormous were that the requirement.”

17. Ms Fiona Haines, on behalf of the Secretary of State in these proceedings before the Upper Tribunal, has provided a submission for the Upper Tribunal. She agrees with the point I made in the previous paragraph about the first ground of appeal. She does not express a concluded view either way on the second ground of appeal, being the point about Dr Bentley’s evidence referred to by the WPAFCC Chamber President when giving permission to appeal. She certainly does not oppose the appeal and suggests that the case be remitted for re-hearing if the appeal to the Upper Tribunal is allowed.

18. Mr Glyn Tucker of the RBL, now acting for the Appellant, argues that the Appellant was deterred from calling Dr Bentley to give evidence concerning the aetiology of the systolic murmur and so the FTT erred in law in its decision. He submits the appeal should be allowed and the case remitted for re-hearing.

The Upper Tribunal’s analysis

19. On balance I find that the point identified by Judge Bano on giving permission to appeal, relating to the Appellant’s second ground of appeal, does amount to an error of law. I am satisfied there is no merit in the first ground of appeal, concerning the tribunal’s composition, for the reasons given when issuing directions on the appeal. As the second ground of appeal succeeds, I do not need to deal with the third and fourth grounds raised by the Appellant.

20. It is true, of course, that in principle it is for the Appellant and his representative to decide how best to run his case and in particular what evidence to adduce. This is subject only to the FTT’s power to give directions and regulate its procedure generally (see rules 5 and 15 of the Tribunal Procedure (First-tier Tribunal) (War Pensions and Armed Forces Compensation Chamber) Rules 2008 (SI 2008/2686)). All parties, of course, are expected to help the tribunal in furthering the overriding objective of dealing with cases fairly and justly and to co-operate generally (rule 2(4)).

21. It is also true that there was no direction issued by the FTT in this case preventing the Appellant from calling Dr Bentley or otherwise relying on his evidence. However, in deciding whether the proceedings were fair it is important to look at the substance rather than the form. The Appellant’s case is that he interpreted the word “superfluous” in the Principal Judge’s letter of 30 January, received when he was still acting in person, as meaning that it was not necessary for Dr Bentley to attend the hearing or otherwise give evidence. That may not have been the message that the Principal Judge was seeking to convey, but it was objectively not unreasonable for the Appellant to interpret it in that way.

22. The Appellant’s impression was doubtless reinforced by the telephone message which his representative subsequently received from the clerk on behalf of the other FTT Judge. That Judge was, of course, quite right to note that the reasons given by the Appellant in his letter of 6 February 2012 for calling Dr Bentley were more relevant to an assessment appeal rather than an entitlement appeal. It is quite possible, however, that this distinction may have been lost on the Appellant, even if his representative would have been aware of its significance. Furthermore, it is possible that Dr Bradley could have provided evidence on the question of aetiology, which was relevant to the entitlement appeal before the FTT.

23. In those circumstances I conclude that there was a breach of natural justice in that the Appellant was given the impression that he need not rely on evidence from Dr Bentley. That might (or might not) have made a difference to the outcome of the appeal itself. I therefore allow this appeal, set aside the FTT’s decision on the appeal against the decision of the Secretary of State and send the case back for a re-hearing before a new tribunal. In the circumstances it would not be right for me to substitute my own decision.

24. I simply make this observation. There is nothing wrong in, and much to be said for, active case management. However, there is a longstanding convention that judges do not enter into correspondence with parties to an appeal. This is not about judges being stand-offish. Rather, it is to ensure that judges both are and are seen to be independent. It is also to avoid the sorts of misunderstandings that arose in the present case. If clarification needs to be sought from one party to an appeal, then a tribunal clerk can write or telephone on the judge’s instructions – this was done in the present case, but by that time the damage had been done and the seeds of misunderstanding sown.

25. So, just as HH Judge Pearl emphasised in London Borough of Camden v FG (SEN) [2010] UKUT 249 (AAC) (at paragraphs 30 and 57) the importance of judicial rulings being signed by the named judge, and not simply sent out and signed by a tribunal clerk, so ordinary correspondence with the parties should be conducted by clerks and not by judges.

What happens next at the new tribunal?

26. There will need to be a complete re-hearing in front of a new tribunal. That tribunal will have to start afresh and consider the appeal afresh. I should, however, stress that the fact that this appeal to the Upper Tribunal has succeeded on a procedural point should not be taken as any indication of the possible or likely outcome of the re-hearing. That will be entirely a matter for the good judgement of the new tribunal, applying the relevant law to the facts it finds.

27. I would also add that the Appellant and his representative should consider carefully what it is that they wish to use Dr Bentley’s evidence for. In my experience it is very unusual indeed to have a treating physician appear at a tribunal in order to give live evidence. The Appellant is well aware of what might be described as “the case against him”, as put by SPVA and confirmed by the previous FTT. It may be quite sufficient for those issues to be put to Dr Bentley and for Dr Bentley to provide a report or letter for the new tribunal addressing those various issues and giving his opinion. If so, the logistics for this can be arranged through further FTT case management directions.

Conclusion

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

Signed on the original Nicholas Wikeley

on 27 February 2013 Judge of the Upper Tribunal