Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No.  CE/242/2013

ADMINISTRATIVE APPEALS CHAMBER

 

Before Judge S M Lane

 

 

This decision is made under section 11 of the Tribunals Courts and Enforcement Act 2007

 

The appeal is dismissed. 

 

The decision of the First-tier Tribunal did not involve the making of an error of law.

 

 

REASONS FOR DECISION

 

1     The appellant brought this appeal with the permission of a First-tier Tribunal judge on the question of whether the First-tier Tribunal (‘F-tT’) erred in law when it did not adjourn the oral hearing after the appellant left the hearing abruptly.  The Secretary of State does not support the appeal.

 

2     The appeal related to the Work Capability Assessment, on which the appellant had only scored 6 points.  This was not enough to allow the conversion of her existing entitlement to incapacity benefits to Employment and Support Allowance on the basis that she had limited capability for work.

 

3     The appellant claimed in her self assessment questionnaire (ESA50) to suffer from musculo-skeletal problems, having pain in her hands, left knee joint, feet, left shoulder and back.  She did not claim to suffer from mental health, cognitive or intellectual problems in the ESA50, nor did her GP mention any in form ESA113 which he completed on 9 October 2011 (p21).  The appellant did, however, raise mental health problems at the medical examination carried out on 22 December 2011 but told the approved health care professional (‘HCP’) that, although she was not good with people, no diagnosis of a mental health problem had ever been made and she had never been treated for one.  She did not score any points from the descriptors in the ‘mental health’ section of the WCA and only 6 points from the physical descriptors. She stated in her appeal grounds to the F-tT that she suffered from depression.

 

4    The hearing began at 15:40. There was no presenting officer, but the appellant was present and represented.  At 16:15, the Record of Proceedings shows that the tribunal judge asked the appellant about conflicting remarks in her evidence.  The appellant’s response, her next actions and the F-tT’s impressions are recorded in the Record of Proceedings as: 

 

‘been like this a long time.  Do not want to be here.  Decides that she will leave.  Walked out quickly without the aid of her walking stick which she threw on the ground.  Both Dr B and self had been talking to her very gently.’ 

The representative then left briefly to see if the appellant would come back, but she would not.  He is recorded as replying to the tribunal judge’s question about whether their questions were out of line

 

‘You did not treat her badly.’ 

 

5    The medical member is not recorded as having said anything about the incident.  The representative did not ask for an adjournment and the F-tT did not adjourn of its own motion.  In its view, there had been no unfairness and (having regard to the views expressed by the representative at the hearing) her departure was unjustified. The representative then drew the F-tT’s attention to some other evidence and the Tribunal ended at 16:31. 

 

6    The description given by the respondent in his correspondence following the hearing is somewhat different.  In his letter of 3 October 2012 (p69) he describes ‘an adrenalin fuelled departure’.  In his letter of 12 November 2012 (p76) he says she rose from her chair, screaming that she was not standing for any more questions and fled in tears (or, as he says elsewhere, escaped) from the room. 

 

7    The representative says that the appellant overreacted but that the tribunal judge was disingenuous in his description in the Statement of Reasons.  He asserts  ‘the appellant would hardly have got up and left for no reason and the outburst which accompanied her flight would have given any reasonable person the impression that she had left because she was not mentally strong enough to continue’.  The representative makes further remarks accusing the judge of bias because, in his view, the judge impugned the integrity of an appellant by making offensive remarks.  He said the judge had done the same on other occasions.  The representative also points out the he had many questions he still wanted to ask and is sure that the Tribunal did as well. 

 

8    I have come to the conclusion that all that can be gathered from the rather different descriptions of the incident is that the appellant got het up and walked out. I am unable to accept the representative's opinion that the only reasonable impression to be gained from the event was that the appellant was not mentally strong enough to continue.  Indeed, the F-tT considered put her departure down to petulance, and not mental health problems [12]. 

 

Discussion

 

9     The question is whether the appellant was deprived of a fair hearing in these circumstances.  Whether couched in terms of breach of natural justice at common law or an infringement of the appellant’s right to a fair hearing under Article 6 of the European Convention on Human Rights, the basic principles are much the same:  (i) the tribunal must be independent and impartial; (ii) the tribunal must conduct a proper examination of the submissions, arguments and evidence adduced by the parties;  (iii) the parties must be afforded a broadly equal opportunity to present their case in circumstances which do not put them at a substantial disadvantage as regards the other party (Dombo Beheer BV v The (1994) 18 EHRR 213, para [33]). 

 

10 There must also be compliance with the overriding objective under rule 2 of the First-tier Procedure Rules to deal with cases fairly and justly.  This rule, it is to be noted, imposes a duty on the appellant to cooperate with the Tribunal.

 

11 The representative appears to be arguing two things.  First, that there was some sort of bias because the F-tT rejected their evidence; and second, that the F-tT behaved unjudicially. 

 

Bias?

 

12 The first submission relates to the manner in which the F-tT rejected an occupational therapist’s report submitted by the appellant and the second to the use of the word ‘bizarre’ to describe the appellant’s evidence about the problems she had with her hands. I cannot see any force in these submissions. 

 

13 It hardly needs to be said that an appeal must have a winner and a loser.  Making judgments on the credibility of evidence is a fundamental part of the Tribunal’s job.  A Tribunal cannot be said to be biased because it rejects evidence, even if it does so robustly. 

 

14 The Tribunal’s had to decide what weight the OT report was to be given and give reasons to explain why, or to what extent, it was accepted or rejected.  Its explanation had to be rational.  The F-tT gave at least seven reasons [14] for rejecting the report, the main, one of which was that the report was, in its view, overly influenced by the appellant’s own perception of her needs.  It considered these to be unrealistic when judged against evidence not available to the OT.  The Tribunal thought that the appellant had exaggerated her problems to the OT with a view to continuing on benefits. 

 

15 On the evidence before it, that was not an irrational conclusion, though it could have been left unsaid.  Tactlessness is not, however, the equivalent of error.  Even if I am wrong, it was only a minor part of the reasons and did not taint the other reasons on this aspect of the appellant’s case or the Statement of Reasons as a whole.

16 As regards the evidence it described as bizarre, this is a word often used by medics to describe symptomology which is physiologically improbable. It is a judgment that this specialist Tribunal was entitled to make. 

 

Was the hearing conducted unfairly?

 

17 A Tribunal is an inquisitorial body.  It will often have to ask probing questions.  This is especially so where an appellant’s evidence is inconsistent or improbable, when it may be important to give the appellant the opportunity to clear up any doubts.  In BK v Secretary of State for Work and Pensions [2009] UKUT 258 AAC (CDLA/3255/2010) I said:

 

29. ‘…While tribunals try to minimise distress by being tactful, they cannot always be successful.  Questions cannot always be perfectly phrased in the pressured environment of a hearing and attendees may have a variety of preconceptions – or misconceptions - about a hearing which, when combined with the stress of the occasion, lead them to think that a tribunal is biased or unfair in asking questions which are, in fact, legitimate. 

 

18 Given the nature of the issues that the tribunal may quite properly need to investigate, it is very difficult to envisage circumstances in which a tribunal pursuing a relevant line of questioning, however upsetting, will have failed to provide a fair hearing.  To succeed in such a submission, it would have to be shown that the hearing unfair by reference to the general principles of fairness in the context of Art. 6, which have already been set out in paragraph 8.  It should be emphasised that the test of unfairness is not judged subjectively from the appellant’s point of view. 

 

19 The issue of whether the F-tT’s conduct gave the impression of pre-judgment, or a denial of the appellant’s right to put her case, should be viewed through the eyes of the fair-minded, informed observer, as taken from Porter v Magill [2002] 2 AC 357. 

 

20 I am satisfied that the observer, who would know that the F-tT had an inquisitorial duty, would not consider that the Tribunal had breached the rules of fairness:  The Record of Proceedings shows that the F-tT was asking relevant questions and trying to get important clarification when the appellant abruptly left, some 25 minutes into the hearing.  The appellant refused to come back to the hearing room, but her representative had a full opportunity to address the F-tT. He agreed that the appellant was not treated badly.  In these circumstances, I agree with the F-tT’s view that her departure was unjustified.

 

21 Nor do I consider that the F-tT’s decision not to adjourn created any unfairness.  The F-tT could not hear further evidence because the appellant left unjustifiably.  In the circumstances, it was appropriate and fair to resolve any outstanding matters on the basis of the representative’s submissions and the evidence before it.  Where the F-tT was left it doubt, it was required to decide the matter by reference to the burden of proof.

 

22 The overriding objective in rule 2 reinforces my conclusion. 

 

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; (italics mine)

(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.

 

23 This was a straightforward IB/ESA conversion appeal. Both sides presented medical evidence which the specialist Tribunal was well equipped to deal with.  The F-tT had already heard nearly half an hour of evidence, in a type of appeal normally listed for a half an hour. The appellant walked out without justification and had indicated very clearly that she wanted no further part in the proceedings.  There is no reason to think that the appellant would not have remained on benefit until her appeal was decided or that she would have been unable to make a new claim for ESA, so there was little financial detriment attached to the process.  In these circumstances, it would be disproportionate use of judicial time and public money to hold a further hearing before a freshly composed panel. 

 

The Secretary of State’s submission

 

24 The Secretary of State did not support the appeal, mainly on the basis of the questions I raised when giving permission to appeal.  However, he did suggest that it might be appropriate to treat a situation in which an appellant attends a hearing but leaves before it is over as analogous to rule 31 of the First-tier Procedure Rules.

 

31. If a party fails to attend a hearing the Tribunal may proceed with the hearing if the Tribunal –

(a)      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

(b)      considers that it is in the interests of justice to proceed with the hearing.

 

25 The appellant’s representative did not see why rule 31 should be applicable but dealt briefly with the overriding objective in rule 2 which included enabling the parties to participate in the hearing.  I have already dealt with rule 2.

 

26 I do not consider that this submission takes things further.  It seems to me that it is better to approach the question from the settled principles relating to natural justice/fair hearing.

 

 

[Signed on original] S M Lane

Judge of the Upper Tribunal

[Date] 1 July 2013