IN THE UPPER TRIBUNAL Case No  CDLA/1579/2013

ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD

Decision:  The appeal is allowed.  The decision of the First-tier Tribunal sitting at Peterborough on 21 January 2013 under reference SC143/12/00952 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 16 of the Reasons.

REASONS FOR DECISION

1. The Secretary of State’s representative has expressed the view that the decision of the tribunal involved the making of an error on a point of law and has agreed to a rehearing.  The claimant, by making this appeal, has done the same.  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 the tribunal which heard the claimant’s appeal was not properly constituted: that is to say, it did not have the right people hearing the case.

3. The tribunal’s statement of reasons explains:

“It should be noted that there was no medical member on the panel.  The legally qualified member decided it was appropriate to proceed because there were no complex medical issues in the case and there   was sufficient medical evidence in the papers from [the claimant’s] GP to assist the tribunal.”

4. The record of proceedings commences “Intros, procedure and independence explained”.  That has the air of the important steps that a well-conducted tribunal would go through at the start of any case. It does not provide any support for the view that the absence of the medical member was discussed with the claimant, much less that her consent to go ahead was obtained.

5. The Secretary of State was not represented and there is no indication that his consent was sought or obtained beforehand.

6. Under Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”), schedule 4, para 15:

“(1) The Lord Chancellor must by order make provision, in relation to every matter that may fall to be decided by the First-tier Tribunal or the Upper Tribunal, for determining the number of members of the tribunal who are to decide the matter.

…

 (4) A duty under sub-paragraph (1), (2) or (3) to provide for the determination of anything may be discharged by providing for the thing to be determined by the Senior President of Tribunals, or a Chamber President, in accordance with any provision made under that sub- paragraph.

…

(6) Where under sub-paragraphs (1) to (4) a matter is to be decided by two or more members of a tribunal, the matter may, if the parties to the case agree, be decided in the absence of one or more (but not all) of the members chosen to decide the matter.”

7. Acting in accordance with that duty, the Lord Chancellor made the First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2009/2835 (“the 2009 Order”), para 2(1) of which provides that:

“The number of members of the tribunal who are to decide any matter that falls to be decided by the First-tier Tribunal must be determined  by the Senior President of Tribunals in accordance with paragraph (2).”

(The detail of paragraph (2) is not material for present purposes.)

8. The Senior President of Tribunals is also under a duty imposed by paragraph 14(2) of schedule 4 to the 2007 Act to choose the member or members of the relevant Chamber who are to exercise the function of deciding any matter in a case before the tribunal.

9. Fuller discussion of the relevant provisions may be found in MB and others v SSWP (ESA and DLA) [2013] UKUT 111 (AAC).

10. The Senior President of Tribunals made the determination required by the 2009 Order by way of a Practice Statement.  We are concerned with the one entitled Composition of Tribunals in Social Security and Child Support Cases in the Social Entitlement Chamber on or after 3^rd November 2008. (A further Practice Statement has been issued, but post-dates the hearing in the present case.)  Under paragraph 4 of it:

“Where the appeal relates to … a disability living allowance…the Tribunal must, subject to paragraphs 8 to 13, consist of a Tribunal Judge, a Tribunal Member who is a registered medical practitioner and   a Tribunal Member who has a disability qualification as set out in article 2(3) of the Qualifications Order.”

(Nothing in paragraphs 8 to 13 referred to above is material for present purposes.)

11. What was lacking in the present case was a Tribunal Member who was a medical practitioner.  Accordingly, the tribunal was improperly constituted. 

12. Assuming as seems likely that a medical practitioner had originally been chosen to decide the matter but had been unexpectedly prevented from attending, under sub-paragraph 15(6) of schedule 4 to the 2007 Act, the case could have gone ahead if the parties had consented.  However, as noted above, there is no indication that they consented, or were asked.

13. In MB the three judge panel held  (at [11]) that:

“if it is established that there has been a failure to comply with the numbers requirement in the Practice Statement this has the consequence that the decision concerned involved the making of an error on a point of law and so the Upper Tribunal may (but need not) set aside the decision.  But, as the error of law relates to the identity of the decision-makers required by the Practice Statement it seems to us that it would only be in rare circumstances that the Upper Tribunal would refuse to set aside the decision. “

14. I can see no reason in the present case not to set the decision aside. This may indeed as the tribunal suggested not have been the most complicated case in medical terms, but the claimant had the right to have her case considered by a panel which had the benefit of medical input and she was incorrectly deprived of it.

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

16. 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.  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 (13 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.

17. The claimant should note that if she wants the new tribunal to consider any further evidence she must obtain it and make sure that it is in front of the tribunal. 

18. I encourage the claimant to attend the next hearing as tribunals usually find it very helpful to hear from claimants themselves about the problems they are facing.

19. 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

25 October 2013