Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No: CDLA/3652/2012

ADMINISTRATIVE APPEALS CHAMBER

Before: Upper Tribunal Judge Wright

DECISION

The Upper Tribunal allows the appeal of the appellant.

The decision of the First-tier Tribunal sitting at Birmingham on 16.07.12 under reference SC024/11/11481 involved an error on a point of law and is set aside.

The Upper Tribunal is not in a position to re-decide the appeal. It therefore refers the appeal to be decided afresh by a completely differently constituted First-tier Tribunal and in accordance with the Directions set out below.  

This decision is made under section 12(1), 12 (2)(a) and 12(2)(b)(i) of the Tribunals Courts and Enforcement Act 2007

DIRECTIONS

Subject to any later Directions by a District Tribunal Judge of the First-tier Tribunal, the Upper Tribunal directs as follows:

(1)            The new hearing will be at an oral hearing.

(2)           The appellant is reminded that the tribunal can only deal with her situation as it was down to 19.07.11 and not any changes after that date.

(3)           If the appellant has any further evidence that she wishes to put before the tribunal this should be sent to the First-tier Tribunal’s office in the Birmingham Appeals Service Centre within one month of the date this decision is issued.

(4)           The First-tier Tribunal should have regard to the points made below.

REASONS FOR DECISION

1.                This is an appeal by the claimant from a decision of the Birmingham First-tier Tribunal (SEC) dated 16.07.12. I will refer to this from now on as “the tribunal”. The tribunal dismissed the claimant’s appeal from the Secretary of State for Work and Pension’s decision of 19.07.11. The Secretary of State’s decision of that date was that the appellant was not entitled to Disability Living Allowance (“DLA”) with effect from 3.05.11 (the date of claim).

2.               Permission to appeal to the Upper Tribunal was refused in the first instance by a District Tribunal Judge on 24.09.12, however on the renewed application to the Upper Tribunal I granted the appellant permission to appeal on 26^th November 2012.  I gave permission to appeal on the following ground:

“…I… consider it is arguable that First-tier Tribunal may have erred in law in not providing adequate reasons why it considered rule 31 of the Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008 was satisfied on the facts of this case. No specific reasons have been given by the tribunal as to why it considered it was in the interests of justice to proceed with the hearing. In this case entitlement to the lower rate mobility component (lrmc) was put in issue (page 28), inter alia, on the basis that the [appellant’s] daughter took her everywhere she needed to go.  It was the daughter being unable to attend with her mother on 16.07.12 that led to the request for the postponement. The tribunal did not, seemingly, doubt the reasons for the daughter being unable to attend with her mother.  The daughter not being able to attend the hearing was on the face of it consistent with the [appellant’s] case on the lrmc.  That case was also arguably consistent with the possibility that there was no-one else to attend with [the appellant] on 16.07.12. In these circumstances it may be arguable that the reasons of the First-tier Tribunal are inadequate as (a) they do not show the basis for the tribunal’s view that [the appellant] could have arranged for someone else to attend with her (e.g. had the tribunal or its office sought to call [the appellant] on receipt of the postponement request to canvass this possibility with her?), and (b) more generally they do not explain why, despite the non-attendance on 16.07.12 being on the appellant’s case at least  consistent with and a result of the causes which she say underlay her entitlement to the lrmc, it was nonetheless consistent with the overriding  objective and the (overall) interests of justice to proceed and decide the appeal in [the appellant’s] absence”.

3.               The Secretary of State supports the appeal in a submission dated 8.02.13 (pages 102-103) that helpfully refers to what Judge Mesher said in KH –v- CMEC [2012] UKUT 329 (AAC) on rule 31(b), and argues overall that the tribunal erred in law in not explaining adequately why it was in the interests of justice to proceed and decide the appeal in the appellant’s absence. I agree. He asks for the appeal to be remitted to the First-tier Tribunal to be re-decided.

4.               The appellant in the observations in reply submitted on her behalf on 8.03.13 makes no further comment and consents to the Upper Tribunal giving a decision without reasons.

5.               I consider that the tribunal did err in law in the way I suggested when I gave permission to appeal, and given the parties agreement that the tribunal erred in law and that the appeal ought to be remitted I do not consider I need say much more.

6.               The appeal was fixed for a hearing on 16.07.12, the parties having been notified of this date on 20.06.12.  The evidence in the papers before the tribunal indicated consistently that it was the appellant’s case that it was her daughter(s) who assisted her with care (see, for example, pages 15 and 30) and getting around outdoors (page 23).  The First-tier Tribunal’s file shows that the request for a postponement was made to the First-tier Tribunal on 10.07.12.  The request said that on the date in question the appellant’s daughter was due to accompany her but was now unable to do so due to her own child having a medical appointment she must attend.  The letter went on “Our client does not attend unfamiliar places alone and therefore would be unable to attend the hearing as she would not be accompanied”. This form of words, and the “therefore” in particular, at least suggests that no-one else was able to attend in place of the daughter.

7.               This postponement request was refused by Judge Southall on 12.07.12. Regrettably, he gave no reasons for refusing the request.  It would seem, however, that he did not have the appeal file as it was already at the hearing venue, and therefore he would have been unaware that what was said in the postponement letter was consistent with what the appellant had said on her claim for DLA.  As far as I can tell no attempt was made to contact the appellant or her professional representative to establish if someone else could in fact attend with the appellant either before the postponement request was refused on 12.07.12 or the hearing four days later.  Judge Southall, however, directed that the request was to be referred to the tribunal judge hearing the appeal on 16.07.12 so that she or he could “deal with the matter appropriately on the day of the hearing”, which indicated that the issue of postponement/adjournment was open to be revisited.

8.               The tribunal at the hearing on 16.07.12 reconsidered the postponement request.  It recited the reasons for the postponement but refused to postpone the hearing on the basis that the appellant “had been notified of the hearing well in advance and could have arranged for someone else to attend with her”. It went on to say that it “was satisfied that [the appellant] had been given sufficient notice of the hearing and that it was in the interests of justice to proceed in her absence”.  This last quote covers the two limbs of rule 31 of the Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008 (the “TPR”).  There is no dispute that the first part of rule 31 was satisfied (notice of the hearing), as the postponement request referred to the hearing date of 16.07.12 when asking for it to be postponed.

9.               However, I do not consider that the reasons provided for rejecting the postponement request and proceeding in the appellant’s absence are adequate. In particular, there is no, or no sufficient reasons, to explain why the tribunal considered it was in the “interests of justice” to proceed in the appellant’s absence.  The factor that the appellant had been notified of the hearing well in advance is, as far as I can see, an irrelevant consideration, as her case was that relatively late in the day her daughter had had to pull out of attending with her.  This was not a case where the appellant at the last hour was saying she had no-one to go with her: her case was that she had had someone but they had dropped out with less than a week to go.

10.            The sole relevant reason given for refusing to postpone, therefore, is that the appellant could have arranged for someone else to attend the hearing with her. As this is the only reason given it also must be relevant to the tribunal’s decision to proceed and decide the appeal in the appellant’s absence (otherwise there would be no reasons given for that discretionary decision – which itself would render the decision erroneous in law for want of adequate reasons). However, I consider this reason is itself flawed as it fails to explain on what basis the tribunal concluded that as a matter of fact (which is what the word “could” means, the word “should” was not used) the appellant could have arranged for another companion to attend with her. As I have noted above, no steps seem to have be taken by the First-tier Tribunal to contact the appellant or her representative to establish whether someone else could attend with her in place of her daughter, and in a context where the postponement letter suggested at least that no-one else could attend with the appellant, I consider that the tribunal had to reason out more fully than it did why it concluded that someone else could in fact attend with her.

11.             Further and in any event, no adequate reasons were given by the tribunal to explain why it considered it was in the interests of justice to proceed and decide the appeal in the absence of the appellant.  As Judge Mesher put it in paragraph [30] of KH:

“the discretion under rule 31(b) is a judicial discretion, as emphasised by Judge Lane in JF. Such a discretion must be exercised consciously, with proper regard to the governing test, and the tribunal must show, at least if a statement of reasons is requested, that the relevant factors have been considered and weighed up. That need not be done with any great elaboration (in many cases a few sentences will suffice), but for the reasons given above it must be done in any statement”

12.            As Judge Mesher said, rule 31(b) of the TPR provides the tribunal with a discretion as to whether it ought to proceed to hear (and decide) the appeal in the appellant’s absence. The exercise of that discretion is subject to the overriding objective to deal with cases fairly and justly in rule 2 of the TPR (per rule 2(3)(a) of the TPR), and that includes: “ensuring, so far as is practicable, that the parties are able to participate fully in the proceedings” (rule 2(2)(c)), and “avoiding delay, so far as compatible with proper consideration of the issue” (rule 2(2)(e)).  Under rule 2(4)(b) of the TPR the parties to the appeal “must co-operate with the Tribunal generally”.  I will assume for the sake of argument that this co-operation can form part of the duty on the parties to help the Tribunal further the overriding objective under rule 2(4)(a) of the TPR.  Accordingly, if a party is not co-operating that may be one factor to be weighed in the balance when deciding whether it is consistent with the overriding objective to exercise a discretion one way of another (here, under rule 31).

13.            However even assuming, as the District Tribunal Judge may have assumed when refusing permission to appeal, that the tribunal considered that the appellant was not co-operating with the tribunal in not arranging for someone else to attend with her (though the tribunal gave no reasons to this effect), for the reasons given in paragraph 10 above I do not consider the tribunal have adequately explained why (if this was its view) it considered the appellant was not co-operating. Moreover, its reasoning does not explain why, despite, inter alia, the need to ensure, so far as is practicable, that the appellant was able to participate fully in the proceedings, it was in the interests of justice to hear and decide her appeal in her absence.  This want of adequate reasoning on a material part of its decision renders its decision erroneous on point of law.

14.            I may add, though I have not raised this issue before, that it is very arguable that the tribunal also erred in law in its construction of what the statutory test for entitlement to the lower rate mobility component (“lrmc”) required.  The relevant test under section 73(1)(d) of the Social Security Contributions and Benefits Act 1992 is that the person:

“is able to walk but is so severely disabled physically or mentally that, disregarding any ability to have routes which are familiar to him on his own, he cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time”.

15.            The tribunal, however, rejected the claim for the lrmc on the basis that the appellant “is not so severely disabled physically or mentally that she needs substantially more guidance or supervision from another person for most of the time when walking outdoors” (finding of fact 4 on the second page of the statement of reasons – the underlining is mine). The underlined words are not part of the statutory test. Moreover, they suggest a comparison but the comparator is not identified. Perhaps most importantly they suggest that the tribunal found that the appellant did require some guidance or supervision from another person most of the time when walking out doors, a finding which may have brought her within the (correct) statutory test. However I say no more about this issue – save to emphasise that the next tribunal must apply the correct statutory test and not any gloss on it – given it did not form part of the grounds on which I gave permission  to appeal.

16.            It is for all these reasons that the tribunal’s decision dated 16.07.12 must be set aside.  The Upper Tribunal is not in a position to re-decide the first instance appeal. The appeal will therefore have to be re-decided by a completely differently constituted First-tier Tribunal (Social Entitlement Chamber).  The appellant’s success on this appeal to the Upper Tribunal on error of law says nothing one way or the other about whether her appeal will succeed on the facts before the First-tier Tribunal, as that will be for that tribunal to assess in accordance with the law and once it has properly considered all the relevant evidence.

 (Signed) S. M. Wright

Judge of the Upper Tribunal

Dated 13^th May 2013