Before:  Upper Tribunal Judge PA Gray

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

Decision

1. This appeal by the claimant succeeds. Permission to appeal having been given by me on  13 June 2013, in accordance with the provisions of section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 and rule 40(3) of the Tribunals Procedure (Upper Tribunal) Rules 2008 I set aside the decision of the First-tier Tribunal sitting at  Durham and made on 24 October 2012 under reference SC 2 to 5/12/01478. I refer the matter to a completely differently constituted panel in the Social Entitlement Chamber of the First-tier Tribunal for a fresh hearing and decision in accordance with the directions given below.

2. The parties are agreed that the decision of the tribunal was made in error of law.  The appellant is content that I should make the above decision without giving reasons. The Secretary of State has not formally agreed to that. In essence I accept the submissions made by the Secretary of State on those matters which I raised in the grant of permission to appeal, although not all matters have been dealt with, and there is one issue which requires finessing. In those circumstances I will give reasons, but they can be brief.

Reasons

3. The original First-Tier Tribunal (FTT) decision concerned both DLA and ESA. The appeal is in relation to the ESA decision. I did raise an issue in the grant of permission to appeal as to whether both decisions were tainted by the error of law, is established. The Secretary of State does not deal with that issue specifically. I am not aware of any appeal against the DLA decision to this tribunal.  The application for permission to appeal was couched only in terms of the ESA decision and the term ESA was repeated on a number of occasions. In contrast the DLA decision was not mentioned. The decision refers only to the ESA appeal. I do not treat the DLA decision as under appeal. 

4. It was, in view of the decision of the Tribunal of Upper Tribunal Judges decision in MB and others—v- SSWP (ESA and DLA) [ 2013] UKUT 111 an error of law to hear both cases together.  In my view the error caused by failing to follow this binding decision was compounded by the appellant not being present, which meant that any procedure that the tribunal had decided to adopt to give effect to the separation of the panel members functions in respect of each decision could not be explained.

5. Additionally there was a failure to explain the factors which led to the decision to proceed in the absence of the appellant, particularly in circumstances where the credibility aspect in relation to what the tribunal perceived to be a doctored report loomed so large. That factor merited specific explanation. It may not, of course, have been apparent from the outset as such a dominant feature. Nonetheless as the analysis of the evidence proceeded there must have come a point at which the apparent alteration of Examining Medical Practitioner's report became critical in relation to the credibility of the appellant's evidence overall. That should have led to the FTT reappraising its original decision to proceed in her absence or without giving her an opportunity to explain the discrepancy in writing.

6. The duty to consider an oral hearing cannot be confined to a pre-case discussion; there is a continuing obligation on the tribunal to consider whether or not it is fair to proceed in the absence of the appellant throughout the case. That does not mean, of course, that a case cannot be decided against an absent appellant, but where there are issues which attain considerable importance in relation to the decision the panel are likely to make whilst the panel are deliberating there may be a reason to revise the original decision to hear the case in the appellant's absence.

7. The Secretary of State has referred to the decision of Judge Mark in CI/4093/99, where he said "If in fact the claimant cannot reasonably be expected to come to the tribunal, then the tribunal must offer to come to the claimant."  That decision is now some 14 years old. Matters have moved on during that time in respect of the desirability of holding domiciliary hearings. It is rare that they are either appropriate or necessary. Enquiries may need to be made as to how an appellant attends other appointments, such as hospital visits. Few people are totally housebound, and it may be that an appellant can attend if transport is provided. If the issue has not become apparent prior to the date the scheduled hearing those enquiries should be made as early as possible on that day in a telephone call to the appellant's home by the clerk at the venue as the case may be able to proceed as listed or later in the day if a taxi could be arranged, or an adjournment may be necessary so that a taxi could be provided on another occasion. If other methods of transport (such as a private ambulance) are under consideration, or if it is thought that the tribunal venue itself may be unsuitable and another venue, whether a hearing centre or a local community facility may be preferable, or, unusually that the issue of a domiciliary visit does arise, the tribunal will want to adjourn the case for the attention of the local District Tribunal Judge who will know about local options and facilities, and who may direct medical evidence as to the nature of the difficulties in order to assess suitability.

8. In any event in this case something should have been done to alert the appellant to the fact that critical significance was being placed upon her apparently having altered the report, and giving her an opportunity to deal with that issue either in person or in writing.

9. In this case the freshly constituted tribunal will no doubt wish to read what the appellant has said in her reply to the response of the Secretary of State to the Upper Tribunal, however she is encouraged to attend a hearing, and should act in accordance with the directions below. A DT J giving listing directions will know how to take the matter forward, depending upon her initial response. 

10. For the reasons set out in the response of the Secretary of State, with the qualification as to the domiciliary issue that I have outlined above, I remit the case to be heard by a freshly constituted tribunal in accordance with the directions below.

Directions

11. These directions may be added to or amended by the District Tribunal Judge if reviewing the file prior to hearing.

12. The rehearing will be before a freshly constituted panel consisting of a judge and medical member. The appellant must contact the office of the First-Tier Tribunal at Newcastle within 2 weeks of the issue of this decision, to indicate whether or not she wishes to attend a hearing, and if so whether she requires assistance by way of transport.  If she indicates that she wishes to have a hearing at her home the clerk will refer the matter to a local DT J, because there may be other options or other local facilities.  The DT J will then take that matter forward.

13. The parties must send to the clerk to the First-Tier Tribunal at Newcastle as soon as possible any further relevant written medical or other evidence. If they cannot send that evidence within 2 weeks of the issue of this decision the parties will need to contact that office to let them know that further evidence is to be filed. This is not to suggest that such further evidence is necessary or expected.

14. The appellant must understand that the new tribunal will be looking at her health problems as of the date of the decision under appeal, 26 May 2012 and for any further medical information to be of assistance it will need to shed light on her health problems at that time.

15. The new panel will make its own findings and decision on all relevant matters. They will consider all aspects of the case afresh, but they should note in particular the issues set out in my reasons for granting permission to appeal, and above. 

16. The fact that the appeal has succeeded at this stage is not to be taken as any indication as to what the tribunal might decide in due course.

17. The clerk to the First-Tier Tribunal shall send to the presiding Judge of the original panel a copy of my grant of permission to appeal, of the response of the Secretary of State and the appellant's reply to that, as well as this decision, and ensure that the same documents are placed in the tribunal bundle for the benefit of the panel that will hear the case.  The documents referred to will be found at pages 158-200 of the Upper Tribunal file. 

PA Gray (signed on the original)

Judge of the Upper Tribunal

4 November 2013