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You are here: BAILII >> Databases >> Upper Tribunal (Administrative Appeals Chamber) >> JP v Secretary of State for Work and Pensions (DLA) (Tribunal procedure and practice (including UT) : other) [2014] UKUT 275 (AAC) (11 June 2014)
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Cite as: [2014] UKUT 275 (AAC)
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JP v Secretary of State for Work and Pensions (DLA) (Tribunal procedure and practice (including UT) : other) [2014] UKUT 275 (AAC) (11 June 2014)
Decision
of the Upper Tribunal
(Administrative Appeals Chamber)
As the decision of the First-tier Tribunal (made on 18 October 2013 at Colchester under reference SC132/13/01787) 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 a disability living allowance on and from 21 January 2013, the date when her claim was treated as made.
C. In doing so, the tribunal must not take account of circumstances that were not obtaining during the period from the date of claim to the date of the decision under appeal (28 February 2013): 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.
D. As the claimant was born on 24 January 2001, the tribunal may not make an award unless one of the age qualification criteria is satisfied.
Reasons for Decision
A. The issue
1. This appeal raises the issue of whether the claimant, who was 12 years old at the date of the hearing, should have been allowed to give evidence to the tribunal or at least to attend the hearing. I have decided that the approach to children, whether as witnesses or as persons present in the hearing room, has to be updated in order to be consistent with the international obligations on the rights of children, the right to a fair hearing and the right to family life. This approach is reflected in decisions of the Court of Appeal and Supreme Court in family cases. Doing so, requires some modification to the guidance given by the Tribunal of Commissioners in R(DLA) 3/06 and some care in applying the Senior President’s Practice Direction.
B. History and background
2. The claimant was born on 24 January 2001. She has hereditary multiple exostosis. To quote the evidence in the file, this ‘is a disorder when benign cartilage-capped bone tumours (exostoses) grow outward from the area of the growth plate of long bones or from the surface of flat bones.’ Her mother made a claim for a disability living allowance on her behalf, which the Secretary of State treated as made on 21 January 2013. The claim pack identified pain and breathing problems as causing difficulties with mobility and care. In addition, the decision-maker had available a letter and a factual report from the claimant’s consultant surgeon. The former contained this paragraph:
[The claimant] is going to have a discussion with the family about the offer of surgery and should she decide against it her name will be removed from the list.
The latter confirmed the diagnosis but did not identify any disability relevant to disability living allowance. On the evidence available, the decision-maker refused the claim on 28 February 2013.
3. By the time the case came before the First-tier Tribunal for the appeal, there was more evidence. In addition to some general information about hereditary multiple exostosis, her GP provided a factual report that set out her symptoms, but did not identify any resulting disablement. There were also two letters from her consultant paediatrician, a diagram of a skeleton with sites of scarring from tumours marked, and some photographs of the tumours. The tribunal dismissed the appeal.
4. I am not concerned with the tribunal’s detailed reasons on the claimant’s entitlement to a disability living allowance. I am only concerned with the two preliminary points decided by the tribunal: that the claimant should not be allowed to give evidence and not be allowed to be present in the room while the appeal was heard.
5. On giving evidence, the tribunal referred to the Senior President’s Practice Direction on child witnesses. It decided that the claimant was a child and noted that the Direction provided that a child should only be required to give evidence if, in summary, (a) the evidence was necessary and (b) her welfare would not be prejudiced. As to (a), the tribunal considered that the oral evidence from the claimant’s mother together with the documentary evidence would be sufficient. As to (b), the tribunal noted that the claimant’s mother did not have a view one way or another on whether her daughter should give evidence and the claimant would be under pressure from knowing that her answers could determine the appeal.
6. On being present in the tribunal room, the tribunal decided that ‘it would not be appropriate for [the claimant] to listen to four adults discussing her problems, three of whom were strangers’, that her presence might inhibit her mother or the tribunal discussing issues, and the claimant ‘was of an age where it might be difficult for her to have to listen to herself being discussed and not being able to say anything herself.’
7. I have taken this from the tribunal’s reasons. There is no record of the discussion in the record of proceedings.
C. R(DLA) 3/06
8. The Secretary of State’s representative has cited this case. which was a decision of a Tribunal of Commissioners (what we would now call a three-judge panel).
9. The appeal tribunal (what we would now call the First-tier Tribunal) had issued a direction for a 12 year old claimant to attend to give evidence. There was evidence that doing so would be inappropriate and potentially damaging; and it was said that the Director Social Services was unlikely to give permission for her to attend. The tribunal had rejected that evidence. The Tribunal of Commissioners dealt with evidence by children in detail. These are the relevant paragraphs:
54. The concerns about a child giving evidence before a tribunal are at least two-fold. First, there is a legitimate concern about the welfare of the child. Giving evidence is a stressful event for anyone, but particularly a child. To compound this, a DLA appeal is concerned with the extent of a claimant’s care and mobility needs, so that the evidence will inevitably deal with the demands made by the child on those by whom care and supervision is provided. As the Benchbook points out, it may be necessary for the tribunal to probe deeply the evidence relating to the child’s care needs and the child may consequently be exposed to information relating to such matters as his or her functional inadequacies or dysfunctional behaviour. The risks to the welfare of the child are even greater where, as here, the child has a history of emotional disturbance.
55. A second (although related) concern is that the evidence of a child taken orally in a tribunal may not be reliable, if only because of the stress of the event. In particular, the behaviour of the child in the abnormal environment of the tribunal setting is unlikely to provide a reliable indication of the child’s behaviour on other occasions, and the value of the child’s evidence is likely to be further diminished if the tribunal members do not have experience or training in facilitating children’s evidence.
…
58. The guidance we are able to give is as follows.
(1) A tribunal should have proper regard to the wishes of a child of sufficiently mature years and understanding who wishes to give evidence in a DLA claim made on his behalf. However, a tribunal should be very cautious before requiring any child to give evidence, and should only call for a child to give evidence if it is satisfied that a just decision cannot otherwise be made. Before reaching such a conclusion, the tribunal should consider first all the other available evidence, and then ask itself whether any necessary additional evidence can be obtained from another source, for example, a health visitor, social worker, teacher, family member or friend, to avoid the need for the child to be called at all.
(2) In any event, a tribunal should be very slow to exercise its power to require a child to give evidence if that child’s parent or carer takes the view that for the child to give evidence may be detrimental to the child’s welfare, particularly if there is evidence from a competent professional that to do so might be harmful. It would be wholly exceptional for it to be appropriate for a tribunal to call a child in such circumstances.
(3) Even if it is those representing the child, rather than the tribunal, who wish the child to give evidence, as Brown indicates, a tribunal has power to disallow the child from giving evidence if it is against the child’s interests to do so. If it is proposed that the child gives evidence, the tribunal must consider whether it is in that child’s interests to do so.
(4) The tribunal should bear in mind that the mere presence of a child at a hearing is unlikely to give a reliable indication of the effect of a child’s disability in normal circumstances.
(5) Where a decision is taken to call a child to give evidence, after submissions from interested persons (including the parents or carers of the child) a tribunal should give consideration to precisely how that evidence will be taken, so that the interests and welfare of the child are maintained, giving any directions that are appropriate. In doing so the tribunal will bear in mind that a child may perceive what is said at a tribunal hearing very differently from an adult. It will be necessary for the tribunal to identify any matters that the child ought not to hear (eg it will not generally be appropriate for a child to hear criticism of those responsible for his or her care) and questions that the child ought not to be asked (eg it will not generally be appropriate to question a child about his or her own care needs).
(6) In addition, where a child is to be called to give evidence, the tribunal will need to give consideration to practical matters such as the geography of the hearing room, having an appropriate adult in close attendance, whether any of the tribunal (including the chairman) should be selected because of experience in dealing with child witnesses and even (in appropriate cases) taking such steps as taking the child’s evidence by video link if available, giving directions where appropriate.
10. At paragraph 57, the tribunal said that the issue of child witnesses should be dealt with generally and not by different jurisdictions individually. That was before the Upper Tribunal and First-tier Tribunal came into existence. The creation of those tribunals provided the authority for dealing with the issue in the way that the tribunal had envisaged.
D. The Senior President’s Practice Direction
11. Section 23 of the Tribunals, Courts and Enforcement Act 2007 authorises the Senior President of Tribunals to give directions as to the practice and procedure in the Upper Tribunal and the First-tier Tribunal. The relevant direction was given immediately before those tribunals came into operation on 3 November 2008:
PRACTICE
DIRECTION
FIRST TIER AND UPPER TRIBUNAL
CHILD, VULNERABLE ADULT AND SENSITIVE WITNESSES
1. In this Practice Direction:
a. “child” means a person who has not attained the age of 18;
b. “vulnerable adult” has the same meaning as in the Safeguarding Vulnerable Groups Act 2006;
c. “sensitive witness” means an adult witness where the quality of evidence given by the witness is likely to be diminished by reason of fear or distress on the part of the witness in connection with giving evidence in the case.
CIRCUMSTANCES UNDER WHICH A CHILD, VULNERABLE ADULT OR SENSITVE WITNESS MAY GIVE EVIDENCE
2. A child, vulnerable adult or sensitive witness will only be required to attend as a witness and give evidence at a hearing where the Tribunal determines that the evidence is necessary to enable the fair hearing of the case and their welfare would not be prejudiced by doing so.
3. In determining whether it is necessary for a child, vulnerable adult or sensitive witness to give evidence to enable the fair hearing of a case the Tribunal should have regard to all the available evidence and any representations made by the parties.
4. In determining whether the welfare of the child, vulnerable adult or sensitive witness would be prejudiced it may be appropriate for the Tribunal to invite submissions from interested persons, such as a child’s parents.
5. The Tribunal may decline to issue a witness summons under the Tribunal Procedure Rules or to permit a child, vulnerable adult or sensitive witness to give evidence where it is satisfied that the evidence is not necessary to enable the fair hearing of the case and must decline to do so where the witness’s welfare would be prejudiced by them giving evidence.
MANNER IN WHICH EVIDENCE IS GIVEN
6. The Tribunal must consider how to facilitate the giving of any evidence by a child, vulnerable adult or sensitive witness.
7. It may be appropriate for the Tribunal to direct that the evidence should be given by telephone, video link or other means directed by the Tribunal, or to direct that a person be appointed for the purpose of the hearing who has the appropriate skills or experience in facilitating the giving of evidence by a child, vulnerable adult or sensitive witness.
8. This Practice Direction is made by the Senior President of Tribunals with the agreement of the Lord Chancellor. It is made in the exercise of powers conferred by the Tribunals, Courts and Enforcement Act 2007.
LORD JUSTICE
CARNWATH
SENIOR PRESIDENT OF TRIBUNALS
30 October 2008
E. The family cases
12. Both R(DLA) 3/06 and the Practice Direction treat the welfare of the child as an important, even decisive, factor. The family courts have emphasised the move away from welfare as the sole or paramount consideration in order to take account of Article 12 of the United Nations Convention on the Rights of the Child 1989 and Articles 6 and 8 of the European Convention on Human Rights. Article 12 provides:
Article 12
1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
Articles 6 and 8 provide:
ARTICLE
6
RIGHT TO A FAIR TRIAL
1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
ARTICLE 8
RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
13. In Mabon v Mabon [2005] Fam 366, the Court of Appeal decided that teenage children should be allowed separate representation. The Court noted ‘the autonomy and consequential rights of children’ (at [32]), one right being ‘to participate in decision-making processes that fundamentally affect his family life’ (at [26]), and emphasised that ‘we must, in the case of articulate teenagers, accept that the right to freedom of expression and participation outweighs the paternalistic judgment of welfare’ (at [28]). The Court considered the interrelation between understanding and welfare, and the different aspects of welfare:
14. In Re W (children) (care proceedings: evidence) [2010] WLR 701, the Supreme Court considered the issue of children’s evidence. The context was care proceedings, but I have tried to extract the points that are likely to be of particular relevance in social security cases:
Conclusions in principle
22. However tempting it may be to leave the issue until it has received the expert scrutiny of a multi-disciplinary committee, we are satisfied that we cannot do so. The existing law erects a presumption against a child giving evidence which requires to be rebutted by anyone seeking to put questions to the child. That cannot be reconciled with the approach of the European Court of Human Rights, which always aims to strike a fair balance between competing Convention rights. Article 6 requires that the proceedings overall be fair and this normally entails an opportunity to challenge the evidence presented by the other side. But even in criminal proceedings account must be taken of the article 8 rights of the perceived victim … Striking that balance in care proceedings may well mean that the child should not be called to give evidence in the great majority of cases, but that is a result and not a presumption or even a starting point.
28. The family court will have to be realistic in evaluating how effective it can be in maximising the advantage while minimising the harm. … The important thing is that the questions which challenge the child’s account are fairly put to the child so that she can answer them, not that counsel should be able to question her directly. … But another [possibility] is putting the required questions to her through an intermediary. This could be the court itself, as would be common in continental Europe and used to be much more common than it is now in the courts of this country.
15. For convenience, I call these the family cases, although the principles set out are not limited to those cases, as some of the discussion makes clear.
F. Analysis
16. The family cases were decided after R(DLA) 3/06. As a decision of a Tribunal of Commissioners, it would be binding on me were it not for those subsequent developments. I consider that paragraphs 54 and 55 are still correct. The guidance in paragraph 58 continues to contain much of value, but it needs some qualification in order to take account of the developments in the family cases.
17. Paragraph 58 was ahead of the developments in recognising the relevance of the maturity, understanding and wishes of the child. However, the family cases show that the guidance fails to give these factors their proper significance. That, no doubt, reflects the legal views of the time and the facts of the particular case, which involved an attempt by a tribunal to compel a child to attend to be questioned. There is less cause for concern when the issue is whether a willing child should be allowed to give evidence. In deciding the impact of doing so, paragraph 58(5) contains important advice, as the manner in which the hearing is handled may reduce or eliminate any potentially adverse effect.
18. Likewise, the application of the Practice Direction has to take account of the developments in the family cases. In so far as it deals with requiring a child to give evidence, it does not require adjustment. My concern is with allowing a child to give evidence, which is dealt with in paragraph 5. In so far as that paragraph provides that a tribunal may decline to hear evidence from a child when it is not necessary for a fair hearing, it is merely permissive. In deciding what a fair hearing requires, the tribunal will take account of the wishes of the child, as in the family cases. In so far as that paragraph provides that a tribunal must decline to hear evidence from a child when it would prejudice the child’s welfare, it could conflict with the family cases. It is, though, possible to reconcile the two by taking account of the child’s age, maturity and wishes in assessing the impact that giving evidence would have, as indicated in Re W at [26].
19. On a cross-jurisdictional approach, I respectfully agree with the Tribunal of Commissioners in R(DLA) 3/06 at [57] that this is desirable. But there is a difference between the principles, which should govern all cases, and their application, which may vary according to the jurisdiction. I have looked at this issue from the perspective of social security cases on disability benefits. The same principles may require very different application in the special educational needs jurisdiction or in appeals under the Safeguarding Vulnerable Groups Act 2006.
G. How the tribunal went wrong in law
20. I have set aside the tribunal’s decision because its approach was wrong in law.
21. Apart from the developments in the family cases, I would still have decided that the tribunal’s approach was wrong. First, it made no attempt to find out the claimant’s views on giving evidence and on the factors that it took into account. That was contrary to the guidance in paragraph 58(1) of R(DLA) 3/06. Second, it took no account of the evidence I have quoted, in paragraph 2, from the consultant’s letter. The consultant, who had seen and spoken with the claimant, considered that she had sufficient maturity to discuss her treatment with her family and to decide whether to have an operation. She had clearly been present at medical examinations when adults were talking about her and, to start with, some of those adults would have been strangers. The experiences recorded in and exemplified by that letter are not consistent with some of the points made by the tribunal in aid of finding that it would be contrary to her interests to give evidence or to be present during the hearing. Third, the tribunal’s analysis lacks balance. It records why it made the decision it did, but does not show what factors it took into account on the other side of the argument. At the very least, the tribunal should have considered that the claim for a disability living allowance was based on pain and breathless. The person best able to explain how these affected her was the claimant herself. Even if she had not given evidence but had been present while her mother had given evidence, she could have ensured that her mother was able to give an accurate account of her experience of his disability. Fourth, the tribunal’s reasons show no sign that it considered how its concerns might be alleviated by the manner in which the claimant gave her evidence, as indicated in paragraph 58(5) of R(DLA) 3/06. Fifth, the tribunal relied on the part of the Practice Direction that dealt with requiring a witness to attend, when there was no question of compulsion. That was not what was in issue in this case. There was no question of issuing a witness summons, because she was already there. And there was no suggestion that she would be required to give evidence if either she or her mother objected. For those reasons, individually and collectively, its analysis was legally flawed.
22. Taking account of the family cases I have cited, the tribunal’s approach was also wrong in law for these further reasons. The tribunal failed to take account of the claimant’s right to autonomy and to take part in decision-making about her entitlement to benefit. It considered only her welfare and, in doing so, failed to consider the point made in Mabon: denying a child the right to participate can be harmful in itself.
H. Entitlement to a disability living allowance
23. I have not commented on the tribunal’s decision on the substantive issue of entitlement to a disability living allowance. Its reasoning was based on the evidence it heard. It did not have evidence from the claimant and I cannot say whether the claimant’s evidence would have affected the outcome. That cannot be known until the First-tier Tribunal decides afresh whether to hear evidence from the claimant.
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Signed on original |
Edward Jacobs |