Upper Tribunal (Administrative Appeals Chamber)

THE UPPER TRIBUNAL Appeal No. CDLA 1243 2013

ADMINISTRATIVE APPEALS CHAMBER

MS v Secretary of State for Work and Pensions (DLA)

DECISION

The appeal is allowed.

For the reasons below, the decision of the First-tier tribunal is set aside.

I refer the appeal to a new tribunal to decide the appeal again in accordance with the following directions.

Directions for new hearing

A The new hearing will be at an oral hearing.

B The new tribunal should not involve any judge or other member who has previously been a member of a tribunal involved in this appeal.

C The appellant is reminded that the tribunal can only deal with the appeal as at the date of the original decision under appeal.

D If the appellant has any further written evidence to put before the tribunal, this should be sent to the tribunal within one month of the issue of this decision.

These directions are subject to any later direction by a tribunal judge.

REASONS FOR DECISION

1 A First-tier Tribunal judge granted permission to appeal to consider the way the First-tier Tribunal handled a late submission with accompanying evidence in this case. I focus on that issue in this decision. The Mary Ward Legal Centre (the Legal Centre), a highly respected advice agency, sent in a full submission supported by medical evidence about the case a few days before the hearing. It appears that the tribunal only received the submission and supporting evidence part way through the hearing. It did not read it fully either at that time or, it would appear, afterwards. I am asked to consider whether as a result the decision was in error of law and specifically whether the tribunal should have considered adjourning. In my view it was in error for more than one reason. As this raises issues of more general concern, I consider the case in more than usual detail. I refer to the submission and evidence as “late” for convenience. But, as I explore below, it is plainly arguable that it was not late.

Background

2 M, the appellant, appealed against a decision refusing her either component of disability living allowance. It was a new claim. It is clear that the refusal by a decision maker acting for the Secretary of State was because of an employment and support allowance standard medical examination report. This was in computer form ESA85 prepared by a registered nurse some months before. The main grounds of appeal were that this was irrelevant and that the evidence, including 13 pages of medical evidence, submitted with the claim by M had been ignored.

3 M asked for an oral hearing in March 2012. The Legal Centre was on record as her representative when the request was made. Notice was given on 3 08 2012 of the hearing listed for 28 08 2012. Assuming the notice was received the following Monday (the 6^th) that gave the appellant and advisers three weeks between receipt of notice and hearing to make a final submission. That is a few more days than the 14 days notice required by rule 29 of the Tribunal Procedure (First-tier Tribunal)(Social Entitlement Chamber) Rules 2008 (the Tribunal Rules) even excluding the bank holiday.

4 The submission and evidence were sent in on Wednesday 22^nd August by post to Birmingham. The submission was sent in because the Legal Centre was, as is usually the case before a First-tier Tribunal dealing with these issues, not funded to attend the hearing with the appellant. The papers in the submission show that some of the key medical evidence was received by the Legal Centre only the day before it was sent on to the tribunal. This suggests that there was no untoward delay by the appellant’s advisers in preparing the submission once they knew of the date of hearing. By contrast, there had been some months between the request for an oral hearing and the listing. It is less clear whether that time could have been used to more advantage in sending in evidence. 

5 It appears that the tribunal did not receive copies of the late submission through official channels. The record of proceedings suggests that the bundle including the submission was given to the tribunal panel some 15 minutes after the start of the hearing because the appellant had a copy and the tribunal did not. The record of proceedings shows that the tribunal stopped the hearing after 15 minutes for 25 minutes when it was discovered that the appellant had a bundle of papers that included, from page 92, the submission from the Legal Centre. The tribunal notes that it did not have those pages. This emerged when the tribunal were discussing the ESA85 with the appellant. It appears that the appellant handed her bundle of papers to the tribunal. I say this because the bundle of papers now before me includes the letter of guidance from the Legal Centre to the appellant about the tribunal, which is a document that accompanied the submission, should not be in the papers and should have been handed back to the appellant. That is in itself an error of law, although not necessarily a material error. This also suggests that the tribunal did not check at the beginning that she had the same papers as them.

6 The tribunal described this as a “hefty bundle”. It includes: a report of an MRI scan of the spine dated 3 05 2012; a draft support plan issued to the appellant unsigned by her local authority on 25 06 2012; a letter from the appellant’s general practitioner dated 17 08 2012 and faxed to the Legal Centre on 22 08 2012; and, included with that letter, several documents all of which included evidence of the medical conditions, treatments, and support requirements of the appellant. However, several of these documents were already in the papers sent in by the Legal Centre when the claim was first made. The duplicated documents include a full medical examination of M on 22 06 2011 by the rapid access chest pain clinic of the local NHS hospital. Others of the documents, as I note below, are updates of documents already in the papers. The relevant new material is not in my view “hefty”.

7 The submission is fairly lengthy. In the opening paragraphs it specifically asks the tribunal to consider the higher rate of the mobility component and highest rate or middle rate of the care component because of attention needs.  Further into the submission it includes evidence entitling the appellant to the lower rate of the mobility component because of the need to have another person with her when outside. There is then a specific request that if the tribunal does not award the higher rate of the mobility component then it should consider the lower rate of the mobility component. This is followed by an analysis of the medical evidence, including the evidence submitted with the submission.

The tribunal’s decision

8 The tribunal awarded M the lowest rate of the care component only, on both bases (help with preparing meals and help with personal needs). It issued that decision on the day of the hearing.

9 The representatives asked both for a statement of reasons for the decision and a copy of the digital record of proceedings. It is not clear whether a digital copy was issued. I do not have a copy of that or any transcript. Nor do I consider it necessary to ask for either to deal with this appeal. There is a commendably full written record of proceedings in the papers. The tribunal in the statement of reasons states that the reasons should be read with the record of proceedings. That is also commendable. I have approached this decision on that basis. It is a course of action I would take on an application such as this in any event. 

10 After an opening paragraph, the tribunal deal with the late submission and evidence as follows:

“[2] Shortly before the hearing the tribunal was presented with a hefty bundle of additional evidence and a detailed submission, which had been sent by post to Birmingham on the Wednesday before the bank holiday. We did our best but were not able to give this evidence detailed consideration before the hearing. We were therefore unable to test it as we might have liked but took it into account in making our decision.

11 Several elements of paragraph [2] are puzzling. I can see nothing to suggest that the tribunal had the papers until some 15 minutes into the hearing. The tribunal record does not suggest that the tribunal restarted the hearing after its recess. I am puzzled about this statement that the tribunal was presented with the papers before the hearing. If that was so, then the tribunal did receive the papers through official channels. That is inconsistent with the comments in the record of proceedings that I have noted above. The record of proceedings is inconsistent with the statement of reasons. As the former is in my view to be preferred as contemporary, the latter is wrong.

12 The tribunal noted that the submission was sent in by post a few days before the hearing, and that the intervening few days included a bank holiday. It did not note when the date of hearing was notified to the parties (a short period that equally included the bank holiday). Nor did it note that much of what it called a “hefty bundle” was already in the papers before it.

13 The tribunal’s reasons about this state:

[3] [M’s] representatives are experienced in social security law. They did not suggest that [M] met the conditions for the lower rate of the mobility component or that she required supervision either by day or night. We found nothing in the evidence to suggest that we should consider those aspects further.”

14 Paragraph [3] is, the representatives observe, wrong in both fact and law. There is a clear request in the submission that the tribunal consider the lower rate of the mobility component and clear evidence supporting the submission. The tribunal was wrong in fact in stating that the “experienced representatives” “did not suggest” that M met the conditions for the lower rate of the mobility component. It erred in law in failing to consider that submission.

15 If its finding was that there is “nothing in the evidence to suggest” that award, then it erred on this point also. As noted, the medical evidence in the late submission contains a detailed report of a medical examination of the appellant on 22 06 2011 by a chest pain clinic at the local NHS hospital. This report is also in the papers sent in by the representatives to the Department when making the original appeal. This gives clear evidence that the appellant risks sudden onset atypical angina precipitated by both exercise and stress. The ESA85 notes M’s cardiovascular problems and that this can cause her dizziness among other problems. M refers to this directly in her claim form, where she states that it is unsafe for her to go outside because of the dizziness and risk of falls.

16 It is also inaccurate to say that there is “no evidence” of daytime or nighttime supervision needs. There is evidence in the claim form of falls and difficulties in rising after falls.  One nighttime fall led to the appellant being sent to the local accident and emergency unit of her NHS hospital. Details are in the papers and the tribunal discussed this with her at the hearing. However, there is no specific request that the tribunal consider daytime supervision or nighttime watching over. I therefore do not consider that the tribunal erred in failing to consider those aspects of this claim further.

Analysis

17 Separate problems arose for the tribunal because of the late submission and accompanying evidence. The first relate to the submission. The second relate to the late evidence.

The appellant’s submission

18 An appellant and advisers are entitled only to 14 days notice of hearing. While in many cases they have much more than this, a tribunal should not be ready to criticise advisers who act within a short time limit in a proper manner. I see nothing here that indicates that the Legal Centre broke any rule or direction in making the submission when it did. It may be that it could have followed better practice, as I comment below, but that is not the same thing. It was not a late submission. Any failure to put it before the tribunal at the beginning of the hearing was not the fault of the Legal Centre.

19 The tribunal was therefore required to consider it properly. If it did not have time to do that at the hearing then an adjournment should have been considered. In this case it failed to consider the submission properly and it failed to consider adjourning. That is separate from any error with regard to late evidence. It is important to note that a tribunal has power to make directions about the provision of both evidence and submissions in rule 15 of the Tribunal Rules. Linked to that is a power to exclude late evidence. There is no linked power in that rule to exclude submissions. If this tribunal was unable to handle the late submission then it should plainly have adjourned. In failing to do so and then failing to deal with the submission fully, it erred in law. Was there a material error? Yes, for two reasons. The lower rate of the mobility component was put in issue in the claim form, in the submissions, and by the evidence. It was in issue even if the late submission and evidence is ignored. The tribunal failed to deal with it. That is a material error of law. It erred again in not dealing with the submission properly. That is a material error of law.

20 More generally, the practice of sending the tribunal a short focussed submission is plainly one to be strongly commended. I particularly note as valuable a clear statement of what it is that the appellant and representatives are seeking from a hearing. This is all the more useful in cases such as claims for disability living allowance where a tribunal has to deal with several issues in one hearing. In this case the Legal Centre asked for the higher rate of the mobility component, failing which the lower rate of the mobility component, and the highest rate of the care component failing which the middle rate of the care component for personal care needs. However, the request for the lower rate of the mobility component was buried in the running text of a five page submission, while the request for the higher rate of the mobility component was further up the document. It would have been better still if the representatives had put all the requested alternatives at the head of the document. That should prevent unintended errors of omission such as the error here. At the same time, the Legal Centre did not ask for the alternative highest rate of the care component or middle rate of the care component for supervision or watching over. The tribunal was entitled to rely on that to concentrate on those elements that were in issue. 

21 I also commend the practice of ensuring that submissions reach the tribunal as efficiently as circumstances allow. Rule 13 allows for delivery of documents by post, by hand, by fax and by any other agreed method. The slowest of those methods was used here, as the tribunal noted. And the submission was sent from London to Birmingham when it had to go to London.

22 It is common practice for representatives to use rule 13 to fax in a copy of a submission to the tribunal centre where the case is to be heard so that it arrives a few days before the hearing at that centre. In R(DLA) 3/05 Commissioner (now Judge) Jacobs emphasised that sending a document by fax to a regular venue of a tribunal was, in the absence of any directions to the contrary, proper service on the tribunal. Although the regulations have changed, that plainly still applies. If that had been done here (the hearing being listed for the usual central London venue) then any delay in putting the submission before the tribunal before it heard the case could not be attributed to the representatives.

The new evidence

23 Did the tribunal also err with regard to the late evidence? As with the submission, I emphasise again that the evidence was not served in breach of any rule or direction. It was not therefore late in any formal sense. It is perhaps better to refer to it as new evidence. The Legal Centre has also served the new evidence on the other party, so no issue of natural justice arose because of that. At the same time, a tribunal presented with considerable new evidence just before a hearing may not be able to handle it fairly. Did that happen here? This is less obvious.

24 The statement of reasons refers to the new evidence in several places. Paragraph [5] f. of the tribunal’s statement of reasons takes into account medical evidence of diabetes-related eye problems evidenced by a letter in the late bundle. However, the papers also contain a report from the previous year evidencing “the earliest stage” of diabetic retinopathy. The tribunal here appears to have relied on evidence after the event (and in the late submission) rather than the evidence more directly relevant to the date of claim and the date of decision. But nothing of significance turns on that. Paragraph [5] h. compares the evidence of the letter of the general practitioner in November 2011 (at the time of claim and original decision) with the later letter of August 2012 in the late submission.  I see no error in that. At paragraph [13] the tribunal comments on the occupational therapy report submitted in the new evidence in some detail. This reflects questions asked about it and recorded in  the record of proceedings and comments again on the general practitioner evidence from August 2012.

25 It is plain from this that the tribunal did take account of the new evidence. And it appears to have failed to note the duplication with evidence already filed (so that the evidence was not new) and that some of the new evidence could rightly be regarded as relating to circumstances more than six months after the date of claim and the date of the original decision and therefore irrelevant. Despite the caution expressed in its own findings on the new evidence, it is not obvious to me that the tribunal made any material errors with regard to the new evidence that was not duplicative and was not irrelevant.

Other issues

26 The grounds of appeal renew the criticisms of the ESA85 report by the registered nurse several months before the current claim was made. I do not need to deal with this in detail. The tribunal relied on the evidence of the general practitioner about M’s problems as at November 2011 while failing to note that this includes both items present but not noted by the nurse and arising after the date of the examination by the nurse. For instance, the evidence about the goitre and its treatment and the urinary problems both postdate that examination but predate the claim. The tribunal plainly had regard to the latter in its award of the lowest rate of the care component. It may be arguable that its decision was inconsistent in weighing those elements of the evidence on other issues. The grounds of appeal raise other detailed issues about the decision of the tribunal on individual components of disability living allowance. I have not dealt with them because I have focussed on the reason why permission to appeal was granted. The appeal must go to a new tribunal that will not be affected by the late presentation of the submission. It will have the full comments of both parties on the full evidence before it.

David Williams

Upper Tribunal Judge

11 09 2013

[Signed on the original on the date stated]