DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

The DECISION of the Upper Tribunal is to allow the appeal by the Appellant.

 

The decision of the Newcastle-upon-Tyne First-tier Tribunal dated 13 December 2012 under file reference SC230/12/01092 involves an error on a point of law. The First-tier Tribunal’s decision is set aside.

 

The Upper Tribunal is not in a position to re-make the decision under appeal. It therefore follows that the Appellant’s appeal against the Secretary of State’s decision dated 11 April 2012 is remitted to be re-heard by a different First-tier Tribunal, subject to the Directions below. 

 

This decision is given under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007.

 

 

DIRECTIONS

 

The following directions apply to the hearing:

 

(1) The appeal should be considered at an oral hearing. 

 

(2) The new First-tier Tribunal should not involve the tribunal judge or medical member who was previously been involved in considering this appeal on 13 December 2012.

 

(3) The Appellant is reminded that the tribunal can only deal with the appeal, including her health and other circumstances, as they were at the date of the original decision by the Secretary of State under appeal (namely 11 April 2012).

 

(4) If the Appellant has any further written evidence to put before the tribunal, in particular medical evidence, this should be sent to the tribunal office in Newcastle within one month of the issue of this decision. Any such further evidence will have to relate to the circumstances as they were at the date of the original decision of the Secretary of State under appeal (see Direction (3) above). 

 

(5) The new First-tier Tribunal is not bound in any way by the decision of the previous tribunal. Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome to the previous tribunal.

 

 

These Directions may be supplemented by later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal.

REASONS FOR DECISION

 

What this case is about

1. Appellants are under a statutory duty to co-operate with the tribunal generally. Tribunals also have a broad discretion in making case management decisions such as whether to proceed with a hearing or whether to adjourn. Issues of fact are for the First-tier Tribunal and not the Upper Tribunal.

 

2. The Appellant in this case stormed out of the hearing of her appeal, swearing at the tribunal members. The tribunal concluded that she had done so deliberately and decided to proceed in her absence. The tribunal then decided to dismiss the appellant’s appeal against the Secretary of State’s decision to disallow her claim to employment and support allowance (ESA).

 

3. The considerations referred to in paragraph 1 above are such that in normal circumstances an appellant who behaves as set out in paragraph 2 is unlikely to persuade the Upper Tribunal that the First-tier Tribunal has erred in law in any way. However, this is an unusual case. Despite her behaviour, I am not satisfied that the tribunal here dealt with the Appellant’s case fairly and justly.

 

The Upper Tribunal’s decision in summary

4. I therefore allow the Appellant’s appeal to the Upper Tribunal. The decision of the First-tier Tribunal involves an error on a point of law. For that reason I set aside the tribunal’s decision.

 

5. The case now needs to be reheard by a new First-tier Tribunal. I cannot predict what will be the outcome of the re-hearing. The fact that this appeal to the Upper Tribunal has succeeded on a point of law is no guarantee that the re-hearing of the appeal before the new FTT will succeed on the facts.

 

6. So the new tribunal may reach the same, or a different, decision to that of the previous tribunal. It all depends on the findings that the new tribunal makes.

 

The First-tier Tribunal’s decision and reasons

7. The tribunal confirmed the Secretary of State’s decision of 11 April 2012 that the Appellant was not entitled to ESA. This was because she scored nil points on the work capability assessment and did not meet the conditions of regulation 29 (“exceptional circumstances”). In the decision notice issued on the day, the tribunal explained that:

 

“The Appellant walked out of the hearing after a few minutes. She refused to participate in the appeal she brought. This was a choice she made. The responsibility is on the Appellant to show why the decision was wrong. By walking out of the appeal it meant the tribunal was not given any information to show why the decision was wrong. She has failed to prove her case.”

 

8. The tribunal judge kept a full note of the proceedings, the substance of which is reflected in the tribunal’s statement of reasons. The key passage in the statement of reasons reads as follows:

 

“10. The tribunal had not got very far when the Appellant suddenly stated the tribunal had made its own mind up, that the decision would not be in her favour, that we did not live in her head or in her house so how can we who are sitting behind a desk make a decision. It was all shit and we could just ‘fuck off’ and make a decision. She left. Her daughter apologised.

 

11. The tribunal deliberated and decided to proceed to make a decision. The Appellant made a deliberate decision to walk out. Her behaviour was deliberate. The tribunal decided it was an action designed to try and stop the hearing rather than a consequence of a mental health problem. The tribunal found her behaviour was deliberate and calculated.

 

12. The Appellant brought the appeal. She claimed the decision of the Secretary of State was wrong. There is a legal duty on her to cooperate with the tribunal and this means attending the tribunal she has requested and behaving in such a way so questions can be asked and information obtained. Her behaviour was in breach of that legal duty.

 

13. To have adjourned to enable another hearing to take place would have rewarded her for her behaviour. It would have meant other appeals would have been delayed unnecessarily. As the tribunal finds the behaviour was not part of a mental health problem but deliberate it was not appropriate to adjourn. It decided to proceed. The overriding objective in Rule 2 of the Tribunal procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules applied.”

 

The Appellant’s grounds of appeal to the Upper Tribunal

9. The Appellant’s grounds of appeal did not identify any apparent legal error in the tribunal’s decision. The Appellant also did not dispute the tribunal’s account of what had happened. She apologised for her behaviour, which she accepted was wrong: “I truly am sorry for walking out of my appeal (but) my depression has took over my life”. She added:

 

“I was very upset that day and I did not fully understand about what was expected of me. I was very anxious and upset and frightened as I was bombarded with questions that was not relevant really.”

 

The Appellant therefore asked for a fresh hearing “as the appeal never really got started”.

 

The Upper Tribunal’s grant of permission to appeal

10. In my initial Observations on the appeal, I commented as follows:

 

‘1. I am giving permission to appeal with some hesitation. To start with it is important to understand that an appeal to the Upper Tribunal can only succeed if the First-tier Tribunal (FTT) went wrong in law in some way. So I cannot interfere with the FTT’s decision unless the tribunal misunderstood or misapplied the law or its procedure was unfair in some way. It is certainly not the task of the Upper Tribunal to tell the FTT how to make basic case management decisions (such as whether to adjourn or not). That is a matter of judgement for them.

 

2. It will be difficult on an appeal limited to a point of law to say that the FTT was wrong to go ahead and decide the case once the Appellant had sworn and stormed out of the hearing. Other tribunals might well have decided to adjourn to allow the Appellant to calm down. The fact that this tribunal decided not to adjourn does not make their decision wrong. At this stage, when deciding whether to give permission, I do not have to be satisfied that the Appellant’s appeal will succeed. Rather, I simply need to think that it might succeed. I am giving permission to appeal for two main reasons.

 

3. First, the Appellant was accompanied at the hearing by her adult daughter. Her daughter stayed long enough to apologise for her mother’s behaviour. It is unclear from the record of proceedings whether the daughter got up and left at the same time as her mother, apologising as she left the room with her, or stayed for a limited period and left shortly afterwards. Should the tribunal have considered continuing with the hearing with the daughter alone, who would presumably have been in a position to provide relevant evidence? Was it a failure of the inquisitorial role not to consider that option (rather than regard the only alternative option being an adjournment to another day?)

 

4. Second, the tribunal found as a fact that “the evidence did not suggest there was a problem with inappropriate behaviour” (statement of reasons paragraph 9). However, this was an Appellant who had been in work until 2011, but whose life seems to have fallen apart as her marriage broke up (and she appears to have been a victim of domestic violence). There was an overdose incident 3 months before the date of the decision and a close bereavement 4 weeks before the tribunal hearing. So there was plenty of evidence of a depressive condition (whether it would be enough to score sufficient points is another matter). However, the tribunal was told in oral evidence that “daughter had to move out due to mood swings” (p.98). Was that not at least an indication that there was some evidence of a problem with inappropriate behaviour which needed to be explored?

 

5. I therefore, with some hesitation, give permission to appeal.’

 

The submissions by the Secretary of State’s representative on the appeal

11. Denise Taylor, who now acts for the Secretary of State in these proceedings before the Upper Tribunal, supports the Appellant’s appeal from the tribunal’s decision. She suggests that the matter is remitted (or sent back) for re-hearing to a new tribunal. Ms Taylor supports the appeal for two reasons.

 

12. First, Ms Taylor argues that as part of its inquisitorial function the tribunal should have considered continuing the hearing with the Appellant’s daughter, and its failure to do so amounted to an error of law.

 

13. Second, Ms Taylor notes that the tribunal accepted the evidence of the health care professional (a registered nurse) as “sufficiently accurate and consistent for the purposes of deciding on the level of disability”. The Appellant told the nurse (in the ‘description of a typical day’) that

 

“Daughter does the cooking at home.

Can do light snacks for herself.

Daughter does the housework.

Is smoking in her bedroom.

Spends a lot of time in there.

Does no housework.

Daughter does the housework.”

 

14. However, as Ms Taylor observes, the nurse translated this account into the following summary assessment: “From her typical day she is able to self care, cooks and cleans”. Ms Taylor argues that “the tribunal’s reliance on the healthcare professional’s report as being accurate appears misconceived in light of the above.” I agree; the nurse’s account was plainly not consistent. The tribunal’s findings were accordingly not supported by the evidence before it.

 

The Upper Tribunal’s decision

15. The Upper Tribunal should not be quick to interfere in tribunal’s case management decisions, especially where they are supported by a categorical finding of fact as here. However, exceptionally in this case, and for the reasons above, I find that the tribunal’s decision involves an error of law. I therefore allow the Appellant’s appeal.

 

16. I have considered refusing to set aside the tribunal’s decision in the exercise of my discretion under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. However, I have decided that would not be appropriate, given the tribunal’s reliance on the report which has been shown to be inconsistent. I therefore also set aside the tribunal’s decision and direct a re-hearing before a new tribunal.

 

What happens next: the new First-tier Tribunal

17. There will need to be a fresh hearing of the Appellant’s ESA appeal before a new tribunal. Although I am setting aside the tribunal’s decision, I should make it clear that I am making no finding, nor indeed expressing any view, on whether or not the Appellant is entitled to ESA and, if so, at what rate and on what basis. That is a matter for the good judgement of the new tribunal. That tribunal must review all the relevant evidence and make its own findings of fact. 

 

18. The new tribunal will also have to focus on the Appellant’s circumstances as they were in April 2012, and not the position as at the date of the new tribunal. This is because the new tribunal must apply the rule that a tribunal “shall not take into account any circumstances not obtaining at the time when the decision appealed against was made” (emphasis added; see section 12(8)(b) of the Social Security Act 1998).

 

Conclusion

19. I conclude that the decision of the First-tier Tribunal involves an error of law.  I allow the appeal and set aside the decision of the tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)). The case must be remitted for re-hearing by a new tribunal subject to the directions above (section 12(2)(b)(i)). My decision is also as set out above. 

 

 

 

 

 

Signed on the original Nicholas Wikeley

on 08 November 2013 Judge of the Upper Tribunal