Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CIB/2688/2012

ADMINISTRATIVE APPEALS CHAMBER

Before E A L BANO

Decision:  My decision is that the decision of the First-tier Tribunal involved the making of an error on a point of law. I set aside the tribunal’s decision and remit the case for hearing before a differently constituted tribunal.

REASONS FOR DECISION

1. The claimant has agoraphobia and is liable to have panic attacks on the infrequent occasions when he leaves his house.  He was in receipt of income support and incapacity credits from 11 September 2008 and after returning an incapacity for work questionnaire on 4 October 2010 he was medically examined on 1 February 2011.  The examining doctor assessed the claimant as scoring 2 points in respect of descriptors 17(a) (mental stress a factor in giving up work), 1 point for descriptor 17(d) (unable to cope with changes in daily routine), 1 point for descriptor 17(f) (scared or anxious that work would bring back or worsen illness), 2 points for descriptor 18(c) (mental problems impair ability to communicate with other people), 1 point for descriptor 18(e) ( prefers to be left alone for 6 hours each day) and 1 point for descriptor 18(f) (too frightened to go out alone).  Since the total of eight points (by my reckoning but shown as nine points on the IB65 score sheet) was less than the ten points needed for the claimant to satisfy the personal capability assessment on the basis of mental disabilities alone, a decision was made on 11 February 2011 superseding the decisions awarding income support and incapacity credits.  (Since the point has been raised by the claimant’s representative, I should point out here that the carrying out of the medical examination was in itself a ground for supersession under regulation 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999.)

2. The claimant appealed against that decision on 25 February 2011 and in a letter to the tribunal his representative claimed in addition to the points awarded at the medical examination 1 point for descriptor 16(c) (frequently distressed at some time during the day because of fluctuation of mood),  1 point for descriptor 16(e) (sleep problems interfere with daytime activities), 2 points for descriptor 17(b) (frequently feels panicked or stressed for no reason), 1 point for descriptor 17(c) (avoids carrying out routine activities because of being convinced that they will be too tiring or stressful) and 1 point for descriptor 18(d) (gets irritated by things that would not have bothered claimant before he got ill).

3. The claimant’s sister and his representative attended the hearing, but the claimant himself did not attend.  According to the grounds of appeal, the claimant had intended to be present at the hearing, but found it too much on the day.  His representative therefore applied at the hearing for the appeal to be adjourned for a domiciliary hearing to be arranged, but the tribunal refused that application for the following reasons:

“We have firstly considered the request for adjournment made on [the claimant’s] behalf so that a domiciliary hearing could be arranged.  We find  there was ample notice of this hearing; [the claimant] was represented and his application made at the hearing is extremely late.  We refused the application as we did not consider it in the interests of justice or efficient dispatch of proceedings and having regard to Rule 31(1)(a) and (b) of the Tribunal Procedure (First-tier Tribunal( (SEC) Rules 2008 found it appropriate to decide the appeal without a hearing.  We considered there was sufficient information within the 72 page bundle and oral representations to proceed to determination.”

The tribunal went on to award the claimant 1 point in respect of descriptor 15(e) (mental condition prevents claimant undertaking leisure activities previously enjoyed) and 1 point each for descriptors 17(f), 18(d) and 18(f).  They therefore dismissed the appeal.

4. The claimant’s representative applied for permission to appeal on the grounds, among others, that the tribunal’s refusal to adjourn for a domiciliary hearing to be arranged amounted to a denial of justice, and that it was also unfair for the tribunal to take away points awarded at the medical examination without giving any warning to the claimant of their intention to do so.  The grounds of appeal also attacked a number of the tribunal’s findings of fact and further contended that the tribunal had failed to give adequate reasons for holding that regulation 27 of the Social Security (Incapacity for Work) I(General) Regulations 1995 was not applicable.  A district judge gave permission to appeal on 29 July 2012.

5. In my observations on the appeal of 11 September 2012 I expressed my concern about the tribunal’s refusal to allow a domiciliary hearing for a claimant with agoraphobia and in a very helpful submission dated 19 December 2012 the Secretary of State’s representative has supported the appeal because of the way in which the tribunal dealt with this issue.  In GJ v Secretary of State for Work and Pensions, JG and SW [2012] UKUT 447 (AAC) Judge Jacobs held that the discretion conferred by rule 31 to proceed with a hearing in a party’s absence must be exercised with regard to the overriding objective in rule 2 of the Procedure Rules, that is, dealing with a case fairly and justly.  By rule 2(2)(c), dealing with a case fairly and justly includes “ensuring, so far as practicable, that the parties are able to participate fully in the proceedings”.

6. Under rule 2(2)(e), the overriding objective also includes “avoiding delay”, but that is subject to the important qualification: “so far as compatible with proper consideration of the issues.”  The tribunal were therefore undoubtedly entitled to have regard to the delay which would result from an adjournment for a domiciliary hearing to be arranged, but they were also obliged to consider whether the refusal of an adjournment would prevent the claimant from participating fully in the proceedings and whether the tribunal could give proper consideration to the issues without the claimant being present. The tribunal adopted two of the six descriptors awarded at the medical examination and one of those suggested by the claimant’s representative, as well as selecting one descriptor (15(e)) which had not been suggested either by the decision maker or by the claimant’s representative.  Given the difference in view about the descriptors which were applicable and the obvious need to investigate in detail how the claimant was affected by his condtion, it is difficult to understand how the tribunal could gave concluded that it was in the interests of justice to proceed in the claimant’s absence.

7. The discretion to grant or refuse an adjournment must be exercised in relation to the facts of each individual case-see Evans v Bartlam [1937] AC 473.  A decision to proceed in the absence of a party under rule 31 necessarily involves a decision not to adjourn the hearing and the reasons for the exercise of the discretion will therefore have to show that the tribunal has given proper consideration to the individual circumstances of the particular case.  Sometimes the reasons for a decision to proceed in a party’s absence will be clear without the need for detailed elaboration, but formulaic reasons run the risk of failing to explain adequately how the facts specific to any particular case have been taken into account by the tribunal in deciding to proceed in a party’s absence.  In CIB/2751/2002 Mr Commissioner Williams (as he then was) held that a refusal by a tribunal to order a domiciliary hearing for a claimant claiming benefit on the basis that he had agoraphobia was, in the circumstances of that case, a breach of the claimant’s common law and Article 6 rights to a fair trial.  But even if there was no such breach in this case, the tribunal’s reasons for the exercise of their discretion under rule 31 give no indication that they considered paragraphs 2(2)(c) and (e) of the overriding objective in deciding to proceed with the hearing in the claimant’s absence.  For that reason, I hold their decision to have been in error of law.

8. The tribunal applied descriptor 17(f) (is scared or anxious that work would bring back or worsen his illness).  That finding suggested the possibility of a risk to the claimant if he were found fit for work and therefore in my view required the tribunal to make findings of fact in relation to that issue under regulation 27.  I therefore consider the tribunal’s decision to have been in error of law for that reason also.

9.  For those reasons, my decision is as set out above.

E A L BANO

28 June 2013