Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No. CIB/2940/2012 

ADMINISTRATIVE APPEALS CHAMBER

Before Judge Mark

Decision:   The appeal is allowed.  I set aside the decision of the tribunal and remit the matter to be reheard in accordance with the directions given below.

REASONS FOR DECISION

1.  This is a supported appeal with the permission of a District Tribunal Judge from a decision of the First-tier Tribunal dated 13 June 2011 dismissing the appeal of the claimant from a decision of the Secretary of State that he could not be treated as incapable of work and was not entitled to incapacity credits from and including 13 May 2010.

2. The claimant had sought an oral hearing of his appeal and one was listed on 3 February 2011 when he attended with his mother and gave evidence.  He was not represented and there was no presenting officer from the Secretary of State.  The tribunal decided that it needed to see his full medical records and adjourned the hearing to a half hour paper hearing on receipt of medical evidence.  There is nothing in the record of the proceedings or the decision notice that day to indicate that the claimant was asked if he wished to attend a further hearing when his medical records would be considered or that he was given any choice as to how the matter proceeded.  Nor was he given any opportunity to make any written submissions as to anything in the medical records when produced.

3. The medical records were obtained and the tribunal then reconvened on 13 June 2011 and decided to dismiss the claimant’s appeal.  There is no indication that the claimant was ever told of the new hearing date or provided with copies of the medical records before that date.  By letter dated 21 June 2011 the claimant asked for the decision to be set aside because he wanted an oral hearing.  That application was refused by a decision dated 26 October 2011 on the ground that the claimant had already given oral evidence and had not challenged the adjournment notice which made it clear that the tribunal was requesting further medical evidence and intended to make its decision without a further hearing.  It was also pointed out that the claimant had not shown that he disputed anything in the medical evidence.

4. At that point the claimant took legal advice and his solicitors applied for a written statement of reasons by letter dated 24 November 2011.  A brief statement of reasons was provided dated 6 December 2011.  This was said to have been issued to the claimant personally on 23 December 2011 but he has said that he did not receive it, and no copy was sent to his solicitors as it should have been until 13 March 2012. 

5. The solicitors then sought permission to appeal on the grounds that there were no adequate findings of fact or reasons and that the law had not been correctly applied.  I shall return to the complaints as to inadequate findings, but the solicitors also stated that the claimant had not been provided with the record of the proceedings on 3 February 2011, was not asked whether he wanted to attend the rescheduled hearing and was left under the impression that he would be attending it.  Nor, the solicitors pointed out, was there any record by the tribunal at the resumed hearing whether in the statement of reasons or otherwise to indicate that it had considered whether, in the light of the medical evidence, it should adjourn for an oral hearing or proceed on paper.

6. In giving permission to appeal by a decision dated 30 July 2012, the district tribunal judge asked whether, when the tribunal reconvened on 13 June 2011 it was (i) making a decision without a hearing such that rule 27(1) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (the 2008 Rules) applied, or (ii) continuing the previous hearing, and if so whether rule 31 of the 2008 Rules applied or (iii) merely continuing the decision making process which follows the end of a hearing, in which case did the overriding objective require the tribunal to give the claimant the opportunity the opportunity to make written observations on the additional medical evidence or to consider whether to re-open the hearing?  He stated that he had been unable to find anything in the papers to indicate that such steps were taken or considered.  The district tribunal judge rightly drew attention to MM v Secretary of State for Work and Pensions, (ESA) [2011] UKUT 334 (AAC) where Judge Mesher decided that if a tribunal did not hold a hearing and there was no record of proceedings, the statement of reasons must deal explicitly with the conditions in rule 27(1) of the 2008 Rules.

7. Rule 27(1) of the 2008 Rules provides that, with certain exceptions, the tribunal must hold a hearing before making a decision which disposes of proceedings unless (a) each party has consented to, or has not objected to, the matter being decided without a hearing; and (b) the tribunal considers that it is able to decide the matter without a hearing.  Rule 29(1) requires the tribunal to give each party entitled to attend a hearing reasonable notice of the time and place of the hearing (including any adjourned or postponed hearing).  Rule 31 provides that if a party fails to attend a hearing the tribunal may proceed with the hearing if it is satisfied that the party has been notified of the hearing or that reasonable steps have been taken to notify the party of the hearing and that it considers that it is in the interests of justice to proceed with the hearing.

8. The basic principle is that a party is entitled to an oral hearing of their case at First-tier level.  In this case, the claimant had asked for an oral hearing, which is why one was held on 3 February 2011.  That right to an oral hearing extends to the whole of the hearing, including any further or adjourned hearing if the matter is not concluded on the first occasion.  It was not open to the tribunal to decide, without the clear consent of the claimant, that it could hold a further hearing on papers to consider the medical evidence.  He had as much right to attend that hearing, make representations as to the contents of the medical reports and give evidence as to any matter contained in them, in the same way as he would have had the right to do so had they been available at the initial hearing. The right to an oral hearing is not satisfied by allowing the claimant to attend only part of the hearing. 

9. It is, of course, sometimes convenient if a case does not finish within its allotted time or if further legal submissions are needed or further evidence has to be obtained, if the remaining matters can be dealt with on paper.  But that can only happen with the consent of any party who has requested an oral hearing because it is all part of the same hearing.  Even then, both parties should both have the opportunity to consider the new evidence and the submissions of the other of them so that they can properly deal with it.  The tribunal should not have before it evidence or submissions which one or both parties has not had the opportunity of seeing or commenting on.  For this purpose each party has the opportunity, by attending a hearing, of seeing and commenting on any evidence given at that hearing.

10. In considering whether to deal with any outstanding matters on paper in the course of an oral hearing, the tribunal must first obtain the consent of anybody at that hearing to that course.  It may also need to obtain the consent of anybody whose decision not to attend the hearing may be affected by additional evidence that is being obtained.  Further, the tribunal must consider, even if that consent is given, how submissions are to be obtained on that evidence and whether it is in the interests of justice to proceed on written submissions.  This last point is particularly relevant with an unrepresented claimant who may not understand what points may need addressing or who may lack the capacity adequately to address them in writing.  It will frequently be better that relevant parts of the additional evidence should be put to the claimant so that he can comment on them.

11. It follows that the tribunal was in error of law (1) in deciding to hold the adjourned hearing as a paper hearing without (a) first informing the claimant that it intended to do so and asking his permission to do so, he having asked for a complete oral hearing; (b) failing to consider and explain why it considered this course to be in the interests of justice; (c) failing to give both parties any opportunity to comment on or adduce evidence in relation to the new medical evidence; and (d) failing, on receipt of the medical evidence to consider again whether it was in the interests of justice to proceed in the absence of the claimant.

12. None of this was dealt with in the statement of reasons.

13. In addition, the statement of reasons was woefully lacking in findings.  It is possible to infer from them that the tribunal concluded that the claimant’s physical ailments were such that, apart from the occasional renal failure they were not such as to score any points on the physical descriptors, although it is not entirely clear why the two sometimes descriptors might not apply when the claimant claims to have been repeatedly ill with serious vomiting and to suffer from sciatica.  It might also have considered the effect of the claimant’s regular vomiting, described at p.44 by a hospital doctor as 17 years of chronic episodic nausea and vomiting, with episodes of vomiting for up to 2-3 weeks every 2 months or so, on his ability to perform the other descriptors with reasonable regularity.

14. The claimant also suffered from depression and had been awarded 3 points under the mental descriptors by the approved disability analyst on the basis that sleep problems interfere with his daytime activities, that he was scared or anxious that work would bring back or worsen his illness and that he became irritated by things that would not have bothered him before he became ill.  The approved disability analyst has, as usual failed properly to address the question whether the claimant’s mental condition prevented him from undertaking leisure activities previously enjoyed in that it fails to address the question of what leisure activities the claimant had previously enjoyed.  The question whether mental stress was a factor in making him stop work is also not answered, as the disability analyst has sought to do by saying that the claimant has not worked in the last 5 years. 

15. Other answers to the mental descriptor questions by the disability analyst also show a lack of logic, and the statement at p.10 by the disability analyst “States that he has stopped using heroin but is now dependent on heroin” is incomprehensible.  None of this is addressed in the statement of reasons.

16. I do not propose to go into the defects in the statement of reasons in any detail here.  The new tribunal will need to make appropriate findings of fact in relation to the claimant’s physical and mental problems and their effect on his ability to perform the relevant descriptors.  It will also need to address the exceptional circumstances provisions of regulation 27 of the Social Security (Incapacity for Work) (General) Regulations 1995, and in particular to consider whether the evidence of renal failure on several occasions means that the claimant is suffering from a severe life threatening disease which is uncontrollable or, with reasonable cause, uncontrolled by a recognised therapeutic procedure.

(signed on the original) Michael Mark

Judge of the Upper Tribunal

16 May 2013