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 25 November 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  Manchester and made on  3 June 2013 under reference  SC 946/12/08835 . 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.

Reasons

2. The respondent agrees that the decision of the tribunal was made in error of law. Both parties have formally agreed to a decision without reasons.   For convenience I state the reasons for my granting permission to appeal. I said

1.             In this case the applicability of regulation 29 (2) of the Employment and Support Allowance Regulations 2008 was raised in oral submission by the appellant's representative. 

2.            The tribunal mentioned this in paragraph 2 and purported to deal with the issue in paragraph 8 of their decision, however arguably their treatment was inadequate.  The tribunal do not indicate that they applied the test as set out by the Court of Appeal in the leading case of Charlton-v- SSWP [2009] EWCA Civ 42 making findings of fact about the sort of work which the appellant might reasonably be expected to look for bearing in mind her work background and any qualifications. Such an enquiry is necessary prior to an assessment of the issue of substantial risk within the context of such work and the journey to and from it.

3.            I would add one point, which was raised by the representative in the application for permission to appeal, but which I did not deal with when granting permission. Whilst I am able to decide the case without reference to this point (upon which I have not had the benefit of argument) it may assist first-tier tribunals if I make some brief remarks about it.

4.            The representative said that he had wished to give evidence on behalf of the appellant, but was told by the Tribunal Judge that he could only ask his client questions or make a submission.

5.            The evidence which he wanted to give was, in general terms, evidence concerning the matters with which his organisation had felt it necessary to assist the appellant.

6.            The FTT would have been entitled to hear his evidence. There is nothing to prevent a representative from giving factual evidence of matters within their knowledge.  The informality of a tribunal hearing in comparison with a hearing in court, together with the preponderance of representation being by those who may be knowledgeable concerning benefit issues but not necessarily legally qualified, leads to some inevitable blurring of the distinction between representative and witness.  The investigative role of the tribunal may also lead it, in certain cases, to find out whether a representative is in a position to give useful evidence.  It is of course a matter for the FTT to assess the weight of such evidence, and it should do so with the evidence of a representative in the way that it weighs any evidence. 

7.            As has been said by Mr Commissioner Jacobs (as he then was), in CDLA/2462/2003

“The tribunal must take care to distinguish evidence from representation so that the former’s provenance is known and can be the subject of questioning by the tribunal and other parties. But, subject to the practicalities of the way in which the taking of evidence is handled, there is no objection in principle to the same person acting in different capacities as a witness and as a representative. Nor is there any reason in principle why the probative value of evidence should depend upon whether or not it came from representative.”

8.            Whilst that decision was made when tribunal procedure was covered by the Social Security and Child Support (Decisions and Appeals) Regulations 1999, the remarks are equally applicable under the Tribunal Procedure (First-Tier Tribunal) (SEC) Rules 2008.  important in the context of those rules is rule 15 (2)

The Tribunal may-

(a)  admit evidence whether or not-

(i) the evidence would be admissible in a civil trial in the United Kingdom;

9.            Any decision to exclude evidence will be subject to the overriding objective as set out in rule 2, which is to enable the tribunal to deal with cases fairly and justly. The main consideration under that provision will be whether or not the evidence is relevant. 

10.         As to the relevance of such evidence it may be that in some cases the lengths to which an organisation, no doubt without open ended resources, will go to assist a client will be powerful evidence as to their personal limitations, but the representative will need to be careful not to stray from factual matters; the opinion of the representative as to the extent of an appellant’s limitations is unlikely to be relevant evidence. 

11.         These matters do not prevent the tribunal from controlling the proceedings by curtailing evidence where it is likely to be irrelevant or repetitive, but a refusal to hear evidence simply because the representative is the source of that evidence is likely to amount to a material error of law.

12.         I remit upon the basis agreed by the parties in relation to the FTT’s treatment of regulation 29, in accordance with the directions below.  The fact that the matter has been successful at this stage is no indication of success at the rehearing.

CASE MANAGEMENT DIRECTIONS

Directions

3. These directions may be supplemented or changed by a District Tribunal Judge giving listing and case management directions.

4. The case will be an oral hearing listed before a differently constituted panel.  

5. The parties shall send to the HMCTS ASC Liverpool office as soon as possible any further relevant written medical or other evidence, if there is any.  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 expected.  That is not to say that any further medical or other evidence will be necessary.

6. The appellant must understand that the new tribunal will be looking at her health problems and how they affected his daily activities at the time that the decision under appeal was made, 19 September 2012.  Any further evidence, to be relevant, should shed light on the position at that time.

7. The new panel will make its own findings and decision on all relevant descriptors. They will consider all aspects of the case afresh, but they should note in particular the issues set out above.  

8. 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.

9. The clerk to the First-tier tribunal should send to the presiding Judge of the original panel a copy of the original grant of permission to appeal and of this decision and the submission of the submission of the Secretary of State and ensure that the same documents 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 on 20 March 2014