IN THE UPPER TRIBUNAL Case No  CE/1200/2013

ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD

Decision:  The appeal is allowed.  The decision of the First-tier Tribunal sitting at Manchester on 14 December 2012 under reference SC946/12/06093 involved the making of an error on a point of law and is set aside.  The case is referred to the First-tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal in accordance with the directions set out in paragraph 7 of the Reasons.

REASONS FOR DECISION

1. Both the claimant and the Secretary of State have expressed the view that the decision of the tribunal involved the making of an error on a point of law and have agreed to a rehearing.  That makes it unnecessary to set out the history of the case or to analyse the whole of the evidence or arguments in detail.  I need only deal with the reason why I am setting aside the tribunal’s decision.

2. I have set the tribunal’s decision aside, because in my view the tribunal failed to apply the “interests of justice” test in rule 31 of its rules to the particular circumstances of this case in deciding it would go ahead when the claimant had failed to attend  In his letter of appeal the claimant had raised a number of points about his mental state, including about “the voices in his head”.  He asserted that the Health Care Professional ("HCP") had not asked him about these and I note that she records that he was “timid” at the examination, thus he may not have volunteered all that he wished to say.  The file contained a recent Form Med 3 confirming that the claimant had been advised to refrain from work on the grounds of “Psychosis”.  According to the HCP and the claimant’s ESA50, his mental health problem and substance misuse were caused by having witnessed the deaths of his uncle and sister.  There was at least some evidence of memory problems affecting the claimant so he might have forgotten to attend. 

3. The tribunal said, incorrectly, it was applying rule 27 rather than rule 31, but I accept it was purporting to apply the correct “interests of justice” test.  The tribunal’s stated reasons for going ahead appeared to be that according to the HCP the claimant was only receiving treatment for a skin problem, as to which the tribunal considered the available evidence to be sufficient.

4 In the circumstances where the claimant had said he had not been asked by the HCP about particular mental health difficulties and there was corroborative evidence in front of the tribunal to suggest that he might indeed have such difficulties, whether or not they were being actively treated, I am unable to discern from the statement of reasons or decision notice any valid and sufficient reason why it could be thought to be in the interests of justice to go ahead when the claimant failed to attend, without further efforts being made to hear from him. 

5. Guidance as to what is “in the interests of justice” for this purpose can be obtained from rule 2.  In particular rule 2(2)(c) indicates that the overriding objective of “dealing with a case fairly and justly” includes “ensuring, so far as practicable, that the parties are able to participate fully in the proceedings.”.  There is no indication of the tribunal having considered any step to accommodate the claimant’s mental health difficulties, nor of the justice involved in making the finding it did that the claimant’s “chaotic” lifestyle was something he had “chosen” without having first “ensured, so far as practicable” that he could give his side of the story, nor of the feasibility of making such findings without hearing from him as to the claimed voices in his head when the other evidence about his mental health was limited and expressed in the most general terms.

6. I do not need to deal with any other error on a point of law that the tribunal may have made.  Any that were made will be subsumed by the rehearing.

7. I direct that the tribunal must conduct a complete rehearing of the issues that are raised by the appeal and, subject to the tribunal’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration.  The case should in the first instance be listed for oral hearing.  While the tribunal will need to address the grounds on which I have set aside the decision, it should not limit itself to these but must consider all aspects of the case, both fact and law, entirely afresh.  The tribunal must not take into account any circumstances that were not obtaining at the date of the decision appealed against (30 April 2012) – see section 12(8)(b) of the Social Security Act 1998- but may take into account evidence that came into existence after the decision was made and evidence of events after the decision was made, insofar as it is relevant to the circumstances obtaining at the date of decision: R(DLA)2/01 and 3/01.

8. This decision has the effect of giving the claimant a further chance to put his side of the story.  If he does not attend again, without adequate explanation, it is possible that the tribunal might go ahead and this time be justified in deciding to do so.  The claimant is encouraged to find someone who can come along with him or at least remind him of the hearing date if he needs help with that.  His local authority welfare rights service or a Citizens Advice Bureau would be places where help might be available, or he could ask someone he knows.

9. The fact that this appeal has succeeded on a point of law carries no implication as to the likely outcome of the rehearing, which is entirely a matter for the tribunal to which this case is remitted.

(signed)

C.G.Ward

Judge of the Upper Tribunal

15 October 2013