Before:  Upper Tribunal Judge Gray

DECISION

This appeal by the claimant succeeds. Permission to appeal having been granted by a District Tribunal Judge  on 13 June 2013  in accordance with the provisions of section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 I set aside the decision of the First-tier Tribunal sitting at Preston and made on 28 March 2013 under reference SC  075/12/01870 and remit the case to a freshly constituted First Tier tribunal. 

REASONS

1. The respondent supports this appeal.  The appellant has indicated that he is content to have a decision without reasons; the respondent has not commented as to that matter however bearing in mind the support for the appeal I need only be brief.

2. The case concerned entitlement to Employment and Support Allowance.  The statement of reasons provided by the Tribunal Judge was short. I do not make criticism of that. In a straightforward Employment and Support Allowance appeal it is possible to be concise but nonetheless satisfy the test of a reasoned judgement which will enable the parties to understand why the decision was made.  

3. There is much authority as to that test.  The principle is well expressed by the Court of Appeal in Bassano v Battista [2007] EWCA Civ 370 at para 28

“The duty to give reasons is a function of due process and therefore justice, both at common law and under Article 6 of the Human Rights Convention. Justice will not be done if it is not apparent to the parties why one has lost and the other has won. Fairness requires that the parties, especially the losing party, should be left in no doubt why they have won or lost.”

4. To fulfil this duty in a first instance jurisdiction the key is clear fact finding.

5. The observation of the DT J in granting permission to appeal was that the statement of reasons failed to indicate upon what factual basis the tribunal had found that the appellant merited no points, and did not have limited capability for work. 

6. The Secretary of State supports that view, in a more detailed analysis.

7. The statement of reasons in this case is generalised, stating what evidence was before the tribunal and that the tribunal considered all the information in the bundle and all the descriptors as well as regulation 29. It then recites some of the evidence put forward by the appellant and concludes that the tribunal found as a fact that he did not satisfy any of the descriptors or regulation 29. That is not a fact but a conclusion.  The conclusion must be based upon facts but no facts were found. Despite the comment that the evidence in support of the conclusion came from the healthcare professional’s report, which the panel found to be thorough, the tribunal has failed to deal with the essential conflict in the case by simply setting out some of the appellant’s evidence and stating that they prefer that of the healthcare professional. The full statement would suggest that the FTT has ignored the whole of the appellant's case; a simple adoption of the findings in the report did not tell him why his contentions that his functional ability was impaired were rejected and, importantly, what activities the tribunal found that he could or could not accomplish bearing in mind the issues that he raised both in his form ESA 50 and in his evidence at the hearing.

8. As to regulation 29 it is not necessary for a FTT to consider regulation 29 as a matter of routine. It is not always disclosed upon the papers or by the oral evidence as being of potential applicability, but where the FTT considers it, and the judge says that they did in this case, it must be properly dealt with bearing in mind the criteria set out in the case of Charlton-v- SSWP [2009]EWCA Civ 42 which are essentially that the tribunal must establish what sort of work the appellant would be expected to do, and assess the level of risk in relation to the likely workplace and the journey to and from work.

9. Where regulation 29 is a clear issue on the papers but the FTT does not consider it that may amount to an error of law, but there will be many cases where it simply does not arise, and the tribunal need not consider it.

10. In this case at page 14 the appellant mentions that he has been diagnosed with chronic fatigue syndrome; this is also set out at page 40 in the healthcare professional’s report.  Although it will be a matter for the tribunal hearing the case this is the type of case where regulation 29 may be raised on the papers, although that will not always be so, and of course to say that it is raised is very far from saying that it will be satisfied.

11. I remit the case to a freshly constituted FTT in accordance with the directions below.  They will make their own findings on the various issues including whether or not regulation 29 is raised and requires consideration.

12. 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.

DIRECTIONS

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

2. The rehearing will be an oral hearing before a panel consisting of a judge and medical member.

3. The parties must send to the clerk to the First-Tier Tribunal at the Liverpool office 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.

4. The appellant must understand that the new tribunal will be looking at his health problems as of the date of the decision under appeal, 18 April 2012, and for any further medical information to be of assistance it will need to shed light on the health problems at that time.

5. The clerk to the First-Tier Tribunal shall send to the presiding Judge of the original panel a copy of this decision, and ensure that the documents before the Upper Tribunal are placed in the tribunal bundle for the benefit of the panel that will hear the case.

Upper Tribunal Judge Gray

(signed on the original)

2 January 2014