Upper Tribunal (Administrative Appeals Chamber)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

As the decision of the First-tier Tribunal (made on 17 October 2013 at Leeds under reference SC007/13/02213) involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 and the case is REMITTED to the tribunal for rehearing by a differently constituted panel.

DIRECTIONS:

A.        The tribunal must undertake a complete reconsideration of the issues that are raised by the appeal and, subject to the tribunal’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration.

B.        In particular, the tribunal must investigate and decide the claimant’s entitlement to an employment and support allowance from and including 14 February 2013.

C.        In doing so, the tribunal must not take account of circumstances that were not obtaining at that time: see section 12(8)(b) of the Social Security Act 1998. Later evidence is admissible, provided that it relates to the time of the decision: R(DLA) 2 and 3/01.

Reasons for Decision

A.        The issue

1.         This case raises an issue that arises regularly in the cases that have come before me in the last year or so. The claimant gave evidence of the distance she could walk to a local supermarket. The tribunal rejected that evidence, relying on information that it had obtained from Google maps. Was the tribunal entitled to obtain that information of its own initiative? Having done so, how should it have dealt with it?

B.        The conversion process

2.         The claimant was awarded incapacity benefit on and from 29 January 2000. In 2012, the Secretary of State decided that her case should be considered for possible conversion to employment and support allowance. As part of that process, she completed a questionnaire. She wrote that she had osteoarthritis of her back, cervical spine, knees and hips. On mobilising, she wrote that she could not move at least 50 metres before needing to stop, saying: ‘I am in constant difficulty and pain and often very depressed.’ It is not necessary to deal with any other activity for the purposes of this appeal.

3.         The claimant was then interviewed and examined by a health care professional. She told the nurse that her symptoms were constant, with pain in her leg, hip and knee every day, and pain in her neck and lower back most days. As part of her description of a typical day, the nurse recorded these answers:

She walks to the supermarket and get taxi back from shopping.
She walks around the supermarket.
She goes to the Morrison’s in town it is not far from where they live.
She walks to her GP for appointments.

Following examination, the nurse recorded that the claimant declined to crouch and reported that straight leg raising of her left leg produced pain. The nurse found no other abnormal findings and noted that there was no muscle wasting in the legs. The nurse gave the opinion that the claimant had no disability relevant to the activity of mobilising. The decision-maker accepted that opinion and decided that the claimant was not entitled to an employment and support allowance from and including 14 February 2013.

C.        The appeal to the First-tier Tribunal

4.         The claimant exercised her right of appeal to the First-tier Tribunal with the assistance of a welfare rights advisor from her local authority. He provided a written submission. The argument for mobilising repeated the claimant’s evidence and argued further that she could not use a wheelchair in view of the osteoarthritis in her neck and upper body.

5.         In evidence to the tribunal, the claimant said that she had an indefinite award of disability living allowance, which included that mobility component at the higher rate. She said the walk to Morrison’s would take a normal person 10 minutes, but took her 30 or 45 minutes (both figures appear in the record of proceedings), with four or five stops on the way. She walked there, but took a taxi back. She used the trolley for support and sat periodically. Her GP’s surgery was next door to her home.

6.         The tribunal dismissed the appeal, although it scored her six points for getting about (activity 15(c)). In the tribunal’s written reasons, the presiding judge devoted seven paragraphs to mobilising. I need only quote paragraph 12:

She confirmed to the HCP that she walks to Morrison’s supermarket in town and this is not far from where she lives. Once there she is able to walk around the supermarket to do her shopping. Google maps shows that the distance she is walking is 2.3 km. In her oral evidence she said that she could do this walk in 30 minutes with 4 stops. The appellant states that the distance is 200 metres, which according to Google maps is a significant understatement. She is, therefore, walking more than 200 metres at a time, and doing so repeatedly in order to complete the distance.

I can see nothing in the record of proceedings to suggest that the tribunal put this point about the distance to the supermarket to the claimant.

D.       The appeal to the Upper Tribunal

7.         The claimant’s representative applied on her behalf for permission to appeal on the ground that the tribunal had overestimated the distance to the supermarket; he produced an aerial photograph in support. I gave permission to appeal, saying:

the grounds of appeal raise an issue that comes up regularly about the use of evidence obtained by the tribunal. To what extent is this permissible? In what circumstances can it properly be taken into account? In particular, should it be put to the parties for comment? If it was obtained before the hearing, should it not have been put to the claimant at least to check its accuracy? It must have been obtained in advance. Otherwise, it could not have been taken into account when the tribunal made its decision.

The Secretary of State has supported the appeal and the claimant’s representative has submitted a ‘no further comments’ reply.

E.        Analysis

Obtaining the evidence

8.         The first question is: was the tribunal entitled to obtain the evidence from Google maps?

9.         The tribunal did not say how this information came to be before it, but it must have come from one of the members of the tribunal on their own initiative. The claimant did not provide it; nor did she invite the tribunal to check for themselves. As I have said, the use of Google maps to check distances in employment and support allowance and disability living allowance appeals has become a feature of appeals recently.

10.      I can see no objection to what the tribunal did either in principle or on the authorities. As far as principle is concerned, tribunals are entitled to make use of their local knowledge: The King v Tribunal of Appeal under the Housing Act 1919 [1920] KB 334 at 341. They are also entitled to make use, by way of judicial notice, of general knowledge that can be obtained from reference sources. Given the availability of information from online sources like Google maps, I can see no reason why a tribunal should not use this to supplement or check evidence of distance, which it is notoriously difficult to judge.

11.      As far as authority is concerned, the courts have allowed tribunals to make use of information that they have obtained for themselves. In R v City of Westminster Assessment Committee, ex parte Grosvenor House (Park Lane) Ltd [1941] 1 KB 53, the Court of Appeal did not criticise a tribunal for making use of a report on the effect of war on valuation. And in Busmer v Secretary of State for Defence [2004] EWHC 29 (Admin), Newman J did not criticise a member of a Pensions Appeal Tribunal for undertaking research into the source documents for some of the evidence that was put before the tribunal. The courts criticised the way the tribunals had handled that evidence, but that is a separate matter.

12.      The Secretary of State’s representative has cited JB v Secretary of State for Work and Pensions [2009] UKUT 61 (AAC), in which the chairman of an appeal tribunal had personally contacted a GP’s surgery during a hearing in order to check on the authenticity of documents. Upper Tribunal Judge Wikeley decided that the chairman had acted improperly and that the hearing had been unfair:

16.    There are, however, limits to the inquisitorial function of tribunals. It is one thing for a tribunal to instigate inquiries as part of its inquisitorial role (in contradistinction to the adversarial approach traditionally, but less so today, associated with the courts). It is quite another thing for one member of a tribunal actively to collect evidence relating to the appeal, which moreover was presumably not heard directly by the medical member of the tribunal. The chairman in this case stepped over the line – she stopped being a judge and became both an investigator and a witness.

…

20.    The function of tribunals is therefore to decide the appeals on the evidence put before them, not on the evidence collected by them on the day of the hearing and not put to the claimant. In the present case the failure to put the evidence gathered from the GP’s surgery by telephone to the appellant for comment compounded the tribunal chairman’s error. The case was being decided, in part at least, on evidence that had simply not been disclosed to the appellant. …

Judge Wikeley went on to consider how the tribunal should have dealt with its concerns about the authenticity of the documents. The possibilities he considered show that the error lay not in the tribunal’s desire to investigate further, but rather in the manner in which that was done.

13.      I consider that that decision is distinguishable. There is a difference in principle between consulting an online source of information to check the accuracy of information that is notoriously unreliable and undertaking a personal interrogation of a third party in order to check whether the claimant has presented forged evidence.

Using the evidence

14.      The second question is: what conditions governed the use of information obtained by the tribunal?

15.      It is a basic requirement that tribunal proceedings must be fair. That is dictated by the principles of natural justice and by the Convention right to a fair hearing. It is inherent in the nature of the judicial exercise that evidence should be put before the parties so that they may have a chance to comment on it. I do not know the rights and wrongs of this case. But assuming that the aerial photograph that has been produced shows the claimant’s home and the supermarket to which she referred, the tribunal’s estimate of 2.3 kilometres was grossly wrong. Putting its view to the claimant would have allowed the tribunal to ensure that it had correctly understood the evidence (it may have had a different branch of the supermarket in mind) and correctly interpreted the information it had obtained (it may have been using the wrong scale).

16.      The tribunal failed to put the material it had obtained to the claimant for comment. That was an error of law.

17.      In order to avoid any misunderstanding, in this case the claimant was present at the hearing. I have not had to consider how the tribunal should have proceeded if this had been a paper hearing. I have not decided that the tribunal should have adjourned, but at the very least the experience of this case shows that tribunals need to take the greatest care before relying on information obtained in this way.

Was the mistake material?

18.      The presiding judge refused permission to appeal, saying that the tribunal’s decision would have been the same even if the whole of paragraph 12 were removed from its reasons for decision. That may be correct. But if it is, the tribunal’s reasons do not say so. There is also this consideration. The claimant said the distance was 200 metres, whereas the tribunal found that it was 2.3 kilometres. Although the tribunal described the claimant’s view as ‘a significant understatement’, the difference was so great that it is possible that it influenced the tribunal’s assessment of the remainder of the claimant’s evidence. In those circumstances, I have set aside the tribunal’s decision and directed a rehearing.