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 Birmingham First-tier Tribunal dated 02 November 2012 under file reference SC024/12/05209 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 16 February 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 02 November 2012.

(3) The Appellant is reminded that the tribunal can only deal with the appeal, including his health and other circumstances, as they were at the date of the original decision by the Secretary of State under appeal (namely 16 February 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 Birmingham 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 District Tribunal Judge responsible for re-listing may wish to consider making a request to the Appellant’s GP for copies of medical notes for the relevant period – see further paragraphs [13] & [14] below.

(6) 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

The importance of dealing with cases fairly and justly

1. The First-tier Tribunal inevitably has to make case management decisions (e.g. whether to adjourn) “on the hoof”. The Upper Tribunal recognises that the First-tier Tribunal has a wide discretion in making such a decision. The First-tier Tribunal has the advantage of seeing, hearing or reading the evidence at first hand and in context. So it is only if the First-tier Tribunal’s case management decision is wholly unreasonable that the Upper Tribunal will intervene.

2. In making such case management decisions, the First-tier Tribunal must have regard to the overriding objective of dealing with cases fairly and justly (see rule 2(1) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Regulations 2008 (SI 2008/2685)). That consideration includes taking into account a range of factors, some of which are specified in rule 2(2), e.g. ensuring, so far as possible that the parties can participate and avoiding delay, so far as is compatible with proper consideration of the issues.

3. The present case, unfortunately, is one where the First-tier Tribunal lost sight of the overriding objective.

The incident at the oral hearing before the First-tier Tribunal

4. The incident in question is described in unpleasantly graphic detail at paragraph 4 of the tribunal’s extensive statement of reasons:

“4. At the hearing, the Appellant was retching and vomiting into a bin bag which had been provided by the staff at the tribunal venue. He indicated that he wished to be present to give evidence, and was able to do so, in a limited fashion, in between episodes of retching. However, after 10 minutes, it appeared that his episodes of retching and vomiting were not reducing, and the tribunal decided that it did not require to ask any further questions of the Appellant, and informed him of this. He left his papers on the table in the tribunal room and departed. The tribunal considered that it had sufficient information to make a decision.”

5. The tribunal’s record of proceedings confirms that the hearing lasted from 11.20 to 11.30. The tribunal judge’s single sheet of notes starts “Came in vomiting into a bin bag. Had been vomiting since arrival. Pale + slim. ‘I’ve been like this for a year’” and ended “We stopped after 10 mins – he was retching into bin bag. He sd he had to phone his brother to come and collect him.”

The First-tier Tribunal’s decision

6. The First-tier Tribunal dismissed the Appellant’s appeal against the refusal of his claim to employment and support allowance (ESA). The tribunal found that he scored nil points on the work capability assessment and did not satisfy regulation 29 (“exceptional circumstances”). In many respects there is much to commend the tribunal’s statement of reasons. It runs to over six pages of text and carefully analyses the evidence in relation to the various descriptors in the ESA Regulations in some detail (whether it dealt adequately with regulation 29 is a moot point, but need not be pursued here).

The reason why the First-tier Tribunal erred in law

7. The error of law in the first-tier Tribunal’s decision is that whether or not justice was actually done on the substantive merits of the appeal, it was certainly not seen to be done. Indeed, I am surprised that a District Tribunal Judge, rather than refusing permission to appeal, did not simply set aside the tribunal’s decision for a procedural irregularity and direct a re-hearing.

8. The Appellant’s then representative’s first ground of appeal was quite simple: there had been a breach of natural justice in that the Appellant “was forced through ill-health to leave the Tribunal after ten minutes and the Tribunal continued without him… The Appellant says that he had not finished giving his evidence.” On that basis I gave permission to appeal to the Upper Tribunal, noting that there was no indication on file that the tribunal had considered whether to adjourn the hearing.

9. Mrs Frances Gigg, for the Secretary of State, supports the Appellant’s appeal. I can do no better than quote the substance of her submission:

“I agree with the Upper Tribunal Judge’s suggestion that the tribunal should have recorded that they expressly considered an adjournment when the claimant left the hearing. They may have felt that they had sufficient evidence before them to continue without the claimant, but the fact is that the claimant had requested an oral hearing and had therefore clearly wished to participate in the proceedings. According to Rule 2 of the First-tier Tribunal Rules, the tribunal’s overall objective to deal with the case fairly and justly included a duty to ensure that the claimant was able to participate fully in the proceedings. In my view the tribunal at least needed to consider whether their overriding duty had been met in the circumstances or whether they should adjourn. Their failure to show in either the record of proceedings or statement of reasons that they considered the matter is, in my opinion, an error of law.”

The Upper Tribunal’s decision

10. I accordingly conclude that the tribunal’s decision involves an error of law. I therefore allow the Appellant’s appeal, set aside the tribunal’s decision and direct a re-hearing before a new tribunal.

11. 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 tribunal will succeed on the facts. So the new tribunal may reach the same, or a different, ultimate decision to that of the previous tribunal. It all depends on the findings that the new tribunal makes.

Directions to the new First-tier Tribunal

12. The new First-tier Tribunal must concentrate on the Appellant’s circumstances as they were in February 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).

13. I accept, of course, that it is difficult thinking that far back, to the position nearly two years ago. This may be a reason for the District Tribunal Judge (who makes directions for the re-hearing of this appeal) to consider making a request to the Appellant’s GP for copies of medical notes for the relevant period (e.g. say March 2011 to March 2012). This may provide further relevant information to supplement the rather limited evidence already available on file. However, the decision on whether such further evidence is required is best left to the good judgment of the District Tribunal Judge concerned.

14. I note that the Appellant had stated in his ESA50 that he suffered from extreme stomach pain and could not stop being sick. He had a medical examination by a registered nurse on 24 January 2012, but took issue with the findings of her report (which, of course, was precisely a reason why consideration should have been given to an adjournment to allow him to explain fully why that was the case). The nurse’s report was arguably not entirely consistent; she reported both that the Appellant’s breath smelled of alcohol and that “he appeared to be unable to walk in a straight line”; however, elsewhere she recorded that he “had no difficulty negotiating doorways and furniture within the examination centre”. The Appellant denied both at the time and subsequently that he had been drinking before the medical took place.  I note that there was no suggestion that the Appellant was intoxicated at the tribunal hearing. Nor does the GP make any reference to any alcohol problem in his (admittedly fairly brief) letters of support. This is a further reason why the District Tribunal Judge may wish to direct production of the GP’s notes, in order to get a full picture.

Conclusion

15. 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 as set out above. 

Signed on the original Nicholas Wikeley

on 13 November 2013 Judge of the Upper Tribunal